No Smoking! Indiana’s Smoking Ban Now in Effect!

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

As of July 1, 2012, Indiana’s new statewide restrictions on smoking in public places and places of employment have become the law. Indiana is the 38th state to enact such a statewide ban.

Indiana’s Smoking Ban Generally: The new Indiana law prohibits smoking in public places and “places of employment,” defined as an enclosed area of a structure that is a place of employment. “Place of employment” does not, however, include a private vehicle. The law does not prohibit smoking outdoors generally, but does prohibit smoking within eight feet of a public entrance to a public place or a place of employment.

Importantly, there are exceptions to the new smoking ban, including:

  • Horse racing facilities and permanent adjacent structures owned or leased by the owner;
  • Riverboats (on which gambling is authorized) and permanent adjacent structures owned or leased by the owner;
  • Gaming facilities (and satellite facilities) at racetracks and permanent adjacent structures owned or leased by the owner;
  • Certain businesses that allow cigar smoking and smoking with waterpipes or hookah devices;
  • Private, not-for-profit clubs that provide food or alcoholic beverages only to their members and guests, subject to the vote of the members (smoking is allowed only in separate, enclosed smoking areas where individuals under the age of 18 are not allowed);
  • Retail tobacco stores if tobacco sales account for at least 85% of the store’s annual gross revenues, entry by individuals under the age of 18 is prohibited, and food and beverage are not sold for consumption on the premises;
  • Bars or taverns that do not employ individuals under the age of 18 or allow individuals under the age of 21 (other than employees) to enter;
  • Cigar manufacturing facilities that do not offer retail sales;
  • Certain cigar specialty stores with separate smoking rooms (cigarette smoking must not be allowed and individuals under the age of 18 must not be allowed in the smoking room); and
  • Businesses that are in a private residence if the only employees are also residents.

Notice Requirements: Under the new law, an employer must inform each of its employees and prospective employees of the smoking prohibition applying to its place of employment. What is more, any public place or place of employment subject to the smoking prohibition must post conspicuous signs at each public entrance that read: “State Law Prohibits Smoking Within 8 Feet of this Entrance” or other similar language. For their part, establishments at which smoking is permitted under the law also must post conspicuous signs that read: “WARNING: Smoking Is Allowed In This Establishment” or other similar language.

Consequences for Non-Compliance with the New Smoking Ban: An owner, manager, or official in charge of a public place is required to ask the individual to refrain from smoking and to have the individual removed from the premises if he or she does not stop smoking after being asked to refrain from smoking.

An owner, manager, or official of a public place or a place of employment who fails to comply with the requirements of the law commits a Class B infraction. A failure to comply is a Class A infraction if the person has committed at least three prior infractions.

Persons who smoke in an area where smoking is prohibited are committing a Class B infraction.  If the person has committed at least three prior infractions, he or she commits a Class A infraction.

Anti-discrimination/retaliation: An owner, manager, or official is not allowed to discharge, refuse to hire, or in any manner retaliate against an individual for reporting a violation of the law or for exercising any right or satisfying any obligation under the law.

Effect on Local Ordinances: The state law does not supersede more restrictive smoking bans of local governments in effect before July 1, 2012, and it specifically authorizes local governments to enact more restrictive ordinances. Thus, employers and employees must follow requirements of any more restrictive ordinances adopted at the local level.

Tips for Employers: Indiana employers should become familiar with and understand their obligations and responsibilities under Indiana’s new smoking ban. To this end, employers should: (1) inform their employees of the smoking ban in their place of employment (and be able to document such notice); (2) post the signage required under the law; (3) update policies and procedures to ensure that they are consistent with the new law; and (4) train managers and supervisors to avoid discrimination and retaliation prohibited by the law.

Brian L. McDermott is a shareholder in the Indianapolis office of Ogletree Deakins.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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