AGING AND DISABILITY SERVICES ADMINISTRATION
2005 NH "Dear Administrator" Letters
November 30, 2005
ADSA: NH #2005-034
INITIATIVE 901: BAN ON SMOKING IN PUBLIC PLACES
Dear Nursing Facility/Home Administrator:
You have probably heard that voters approved Initiative 901, which does not allow smoking in public places and places of employment. The purpose of this letter is to tell you that, in addition to bars, taverns, bowling alleys and restaurants, the new law banning smoking also applies to nursing homes, boarding homes, adult family homes, and Intermediate Care for the Mentally Retarded (ICF/MR) facilities.
The Department of Social and Health Services (DSHS) is not responsible for enforcement of Initiative 901, which takes effect December 8, 2005. The approval of this Initiative does not change the DSHS inspection process. The Initiative makes local law enforcement and local public health agencies responsible for enforcing its provisions. I am notifying you about the law because it is likely to have a significant effect on your facility’s smoking policies and because implementation of the law in long term care facilities is likely to raise a number of questions.
Summary of Initiative 901
The initiative does not allow smoking in a “public place” or in any “place of employment.” A "public place" includes any portion of any building that is used by the public or that is open to the public. It doesn’t matter whether the building is privately or publicly owned.
Besides the building itself, the law prohibits smoking within a “reasonable minimum distance” from the public portion of the building. Unless an individual receives an exception from the local public health agency, the “reasonable minimum distance” is twenty-five feet from 1) entrances, 2) exits, 3) windows that open, and 4) ventilation intakes that serve the area where smoking is prohibited. Although the law creates an exception for private residences, the exception does not apply to private residences that are used to provide licensed child care, foster care, adult care, or other similar social service care on the premises (such as licensed care facilities).
The law also does not allow smoking in places of employment. This includes any areas through which employees are required to pass during the course of employment such as entrances, exits, work areas and restrooms. The prohibition also includes a “reasonable minimum distance” requirement from these areas (as described above.) While the law creates an exception for private residences or home-based businesses, the exception does not apply to private residences that are used to provide licensed child care, foster care, adult care, or other similar social service care on the premises (such as licensed care facilities).
Individuals in charge of public buildings and places of employment are required to not allow smoking and to post conspicuous no smoking signs at the building entrance. Local health departments are required to enforce these requirements. The method of enforcement may include notices requiring correction, civil fines and injunctions.
Local law enforcement is responsible for enforcing the prohibition against anyone who intentionally violates the law by smoking in a public place or place of employment. Violators can be given a notice of infraction (similar to a parking ticket) and fined up to one hundred dollars per day for each violation.
I am enclosing a copy of the Initiative for your information. If you have any questions about the interpretation of this law, I encourage you to consult with your attorney.
Sincerely,
Joyce Pashley Stockwell, Director
Residential Care Services
