74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 571
Sponsored by Senators AVAKIAN, BURDICK, BATES, DEVLIN,
Representatives ROSENBAUM, TOMEI; Senators COURTNEY, GORDLY,
METSGER, MONNES ANDERSON, MONROE, MORRISETTE, PROZANSKI,
WALKER, Representatives GELSER, GREENLICK, NATHANSON
CHAPTER ................
AN ACT
Relating to smoking; creating new provisions; amending ORS
192.660, 433.835, 433.840, 433.845, 433.850, 433.855, 433.870,
433.990, 441.030, 441.815 and 441.990; repealing ORS 433.863
and 433.865; and prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 433.835 is amended to read:
433.835. As used in ORS 433.835 to 433.875:
{ + (1) 'Cigar bar' means a business that:
(a) Has on-site sales of cigars as defined in ORS 323.500;
(b) Has a humidor on the premises;
(c) Allows the smoking of cigars on the premises but prohibits
the smoking of all other tobacco products in any form including,
but not limited to, loose tobacco, pipe tobacco, cigarettes as
defined in ORS 323.010 and cigarillos as defined by the
Department of Human Services by rule;
(d) Has been issued and operates under a full on-premises sales
license issued under ORS 471.175;
(e) Prohibits persons under 21 years of age from entering the
premises and posts notice of the prohibition;
(f) Does not offer video lottery games as authorized under ORS
461.217;
(g) Has a maximum seating capacity of 40 persons;
(h) Has a ventilation system that is certified by the assistant
to the State Fire Marshal described in ORS 476.060 for the
jurisdiction in which the cigar bar is located as adequate to
remove the cigar smoke in the cigar bar and vents the smoke from
the cigar bar in a manner that prevents the smoke from entering
any other establishment; and
(i) Requires all employees to read and sign a document that
explains the dangers of exposure to secondhand smoke. + }
{ - (1) - } { + (2) + } 'Enclosed area' means all space
between a floor and a ceiling that is enclosed on { - all - }
{ + three or more + } sides by
{ - solid - } { + permanent or temporary + } walls or
windows, exclusive of doors or passageways, that extend from the
floor to the ceiling { - , including all space therein screened
by partitions that do not extend to the ceiling - } .
{ - (2) - } { + (3) + } 'Place of employment' means every
enclosed area under the control of a public or private employer
Enrolled Senate Bill 571 (SB 571-C) Page 1
that employees frequent during the course of employment,
including but not limited to work areas, employee lounges,
{ + vehicles that are operated in the course of an employer's
business that are not operated exclusively by one employee, + }
rest rooms, conference rooms, classrooms, cafeterias { + , + }
{ - and - } hallways { + , meeting rooms, elevators and
stairways + }. 'Place of employment' does not include a private
residence unless it is used as a child care facility as defined
in ORS 657A.250 { - , - } { + or + } a facility providing
adult day care as defined in ORS 410.490 { - or a health care
facility as defined in ORS 442.015 - } .
{ - (3) - } { + (4) + } 'Public place' means any enclosed
{ - indoor - } area open to { - and frequented by - } the
public { - , except those public places subject to ORS 441.815,
including but not limited to restaurants, as defined in ORS
624.010, retail stores, banks, commercial establishments,
educational facilities, nursing homes, auditoriums, arenas,
meeting rooms and grocery stores - } .
{ + (5) 'Smoke shop' means a business that:
(a) Is primarily engaged in the sale of tobacco products and
smoking instruments, with at least 75 percent of the gross
revenues of the business resulting from such sales;
(b) Prohibits persons under 18 years of age from entering the
premises;
(c) Does not offer video lottery games as authorized under ORS
461.217, social gaming or betting on the premises;
(d) Does not sell or offer on-premises consumption of alcoholic
beverages; and
(e) Is a stand-alone business with no other businesses or
residential property attached to the premises. + }
{ - (4) - } { + (6) + } 'Smoking instrument' means any
cigar, cigarette, pipe or other smoking equipment.
SECTION 2. ORS 433.840 is amended to read:
433.840. The people of Oregon find that because { - the
smoking of tobacco creates a health hazard to those present in
confined places, - } { + exposure to secondhand smoke is known
to cause cancer and other chronic diseases such as heart disease,
asthma and bronchitis, + } it is necessary to reduce exposure to
tobacco smoke by
{ - requiring nonsmoking areas in certain - } { + prohibiting
smoking in all public + } places { + and places of
employment + }.
SECTION 3. ORS 433.845 is amended to read:
433.845. { + (1) + } { - No - } { + A + } person
{ - shall - } { + may not + } smoke or carry any lighted
smoking instrument in a public place { + or place of
employment + } except in areas designated as smoking areas
pursuant to ORS 433.850.
{ + (2) A person may not smoke or carry any lighted smoking
instrument within 10 feet of the following parts of public places
or places of employment:
(a) Entrances;
(b) Exits;
(c) Windows that open; and
(d) Ventilation intakes that serve an enclosed area.
(3) + } { - Smoking is prohibited - } { + A person may not
smoke or carry any lighted smoking instrument + } in a room
during the time that jurors are required to use the room.
SECTION 4. ORS 433.850 is amended to read:
Enrolled Senate Bill 571 (SB 571-C) Page 2
433.850. (1) { - Except as provided in subsection (2) of this
section, - } An employer shall provide a place of employment
that is free of tobacco smoke for all employees.
(2) { - The following areas are not subject to the smoking
restrictions in - } { + Notwithstanding + } subsection (1) of
this section:
{ - (a) Retail businesses primarily engaged in the sale of
tobacco or tobacco products. - }
{ - (b) Restaurants posted as off-limits to minors or areas
of restaurants posted as off-limits to minors under rules adopted
by the Oregon Liquor Control Commission. - }
{ - (c) Bars or taverns posted as off-limits to minors under
rules adopted by the Oregon Liquor Control Commission. - }
{ - (d) Rooms or halls being used by a charitable, fraternal
or religious organization to conduct bingo games under a license
issued pursuant to ORS 464.270. - }
{ - (e) Bowling centers. - }
{ - (f) Rooms designated by the owner or person in charge of
a hotel or motel as rooms in which smoking is permitted. - }
{ - (g) Employee lounges designated by an employer for
smoking if: - }
{ - (A) The lounge is not accessible to minors; - }
{ - (B) The air in the lounge is exhausted directly to the
outside by an exhaust fan and not recirculated to other parts of
the building; - }
{ - (C) The lounge is in compliance with ventilation
standards established by rule by the Department of Human
Services; - }
{ - (D) The lounge is located in a nonwork area where no
employee is required to enter as part of the employee's work
responsibilities. For purposes of this paragraph, 'work
responsibilities' does not include custodial or maintenance work
carried out in a lounge when it is unoccupied; and - }
{ - (E) There are sufficient nonsmoking lounges to
accommodate nonsmokers. - }
{ + (a) The owner or person in charge of a hotel or motel may
designate up to 25 percent of the sleeping rooms of the hotel or
motel as rooms in which smoking is permitted.
(b) Smoking of noncommercial tobacco products for ceremonial
purposes is permitted in spaces designated for traditional
ceremonies in accordance with the American Indian Religious
Freedom Act, 42 U.S.C. 1996.
(c) Smoking is permitted in a smoke shop.
(d) Smoking is permitted in a cigar bar that generated on-site
retail sales of cigars of at least $5,000 for the calendar year
ending December 31, 2006. + }
(3) An employer, except in those places described in subsection
(2) of this section, shall post { - appropriate - } signs
{ + that provide notice of the provisions of ORS 433.835 to
433.875 + }.
SECTION 5. ORS 433.855 is amended to read:
433.855. (1) The Department of Human Services, in accordance
with the provisions of ORS chapter 183:
(a) Shall adopt rules necessary to implement the provisions of
ORS 433.835 to 433.875 and 433.990 (4);
(b) Shall be responsible for compliance with such rules; and
(c) May impose a civil penalty not to exceed the amount
specified in ORS 433.990 (4) for each violation of a rule of the
department applicable to ORS { + 433.845 or + } 433.850, to be
collected in the manner provided in ORS 441.705 to 441.745. All
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penalties recovered shall be paid into the State Treasury and
credited to the { - General Fund - } { + Tobacco Use
Reduction Account established under ORS 431.832 + }.
(2) In carrying out its duties under this section, the
Department of Human Services is not authorized to require any
changes in ventilation or barriers in any public place { + or
place of employment + }. However, nothing in this subsection is
intended to limit the authority of the department to impose any
requirements under any other provision of law.
(3) In public places which the Department of Human Services
regularly inspects, the Department of Human Services shall check
for compliance with the provisions of ORS 433.835 to 433.875 and
433.990 (4). In other public places { + and places of
employment + }, the Department of Human Services shall respond in
writing or orally by telephone to complaints, notifying the
proprietor or person in charge of responsibilities of the
proprietor or person in charge under ORS 433.835 to 433.875 and
433.990 (4). If repeated complaints are received, the Department
of Human Services may take appropriate action to { - insure - }
{ + ensure + } compliance.
(4) When a county has received delegation of the duties and
responsibilities under ORS 446.425 and 448.100, or contracted
with the Department of Human Services under ORS 190.110, the
county shall be responsible for enforcing the provisions of ORS
433.835 to 433.875 and 433.990 (4) that are applicable to those
licensed facilities and shall have the same authority as the
Department of Human Services for such enforcement.
SECTION 6. ORS 433.870 is amended to read:
433.870. The { - regulations - } { + rules + } authorized
by ORS 433.855 { - , - } { + and + } 433.860 { - and
433.865 - } are in addition to and not in lieu of any other law
regulating smoking.
SECTION 7. ORS 433.990 is amended to read:
433.990. (1) Violation of ORS 433.004 or 433.008, 433.255,
433.260 or 433.715 is a Class A misdemeanor.
(2) Violation of ORS 433.010 is punishable, upon conviction, by
imprisonment in the custody of the Department of Corrections for
not more than three years.
(3) Violation of ORS 433.035 is punishable upon conviction by a
fine of not less than $10 nor more than $100, or by imprisonment
for not less than 10 days nor more than 30 days, or by both.
(4) Violation of ORS 433.850 is a Class { - D - } { + A + }
violation punishable by { - fines totaling - } { + a fine
of + } not more than { - $50 - } { + $500 + } per day
{ - , - } { + . Fines imposed against a single employer under
this subsection may + } not { - to - } exceed { - $1,000 - }
{ + $2,000 + } in any 30-day period.
(5) Violation of ORS 433.345 or 433.365 is a Class B violation.
Failure to obey any lawful order of the Director of Human
Services issued under ORS 433.350 is a Class C misdemeanor.
(6) Any organizer, as defined in ORS 433.735, violating ORS
433.745 is punishable, upon conviction, by a fine of not more
than $10,000.
SECTION 8. ORS 441.815 is amended to read:
441.815. { - (1) No hospital employee, patient or visitor
shall smoke any cigar, cigarette or tobacco in any form in
any: - }
{ - (a) Room of the hospital in which more than one patient
is accommodated, unless the room is specifically designated for
smoking; or - }
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{ - (b) Other areas where patient care is provided in the
hospital. - }
{ - (2) The administrator or person in charge of a hospital
shall designate reasonable areas in lobbies and waiting rooms
where smoking is not permitted. - }
{ - (3) The administrator or person in charge of the hospital
shall designate a reasonable number of rooms in the hospital
where smoking is not permitted. - }
{ - (4) - } { + (1) + } As used in this section, 'hospital'
has the meaning given the term in ORS 442.015.
{ + (2) The administrator or person in charge of a hospital
may not permit a person to smoke tobacco:
(a) In the hospital; or
(b) Within 10 feet of a doorway, open window or ventilation
intake of the hospital.
(3) The Director of Human Services may impose a civil penalty
of not more than $500 per day on a person for violation of
subsection (2) of this section. Civil penalties imposed against a
person under this subsection may not exceed $2,000 in any 30-day
period. Civil penalties imposed under this subsection shall be
imposed in the manner provided by ORS 183.745.
(4) The Department of Human Services may adopt rules necessary
for the administration of this section. + }
SECTION 9. ORS 441.990 is amended to read:
441.990. (1) Violation of ORS 441.015 (1) is a violation
punishable, upon conviction, by a fine of not more than $100 for
the first violation and not more than $500 for each subsequent
violation. Each day of continuing violation after a first
conviction shall be considered a subsequent violation.
{ - (2)(a) Violation of ORS 441.815 (1) is a violation
punishable by a fine of $10. - }
{ - (b) Violation of ORS 441.815 (2) or (3) is a Class D
violation. - }
{ - (3) - } { + (2) + } Any person who willfully prevents,
interferes with, or attempts to impede in any way the work of any
duly authorized representative of the Department of Human
Services in the lawful carrying out of the provisions of ORS
441.087 (1) is guilty of a Class C misdemeanor.
{ - (4) - } { + (3) + } The removal of the notice required
by ORS 441.030 (5) by any person other than an official of the
department is a Class C misdemeanor.
SECTION 10. ORS 441.030 is amended to read:
441.030. (1) The Department of Human Services, pursuant to ORS
479.215, shall deny, suspend or revoke a license in any case
where the State Fire Marshal, or the representative of the State
Fire Marshal, certifies that there is a failure to comply with
all applicable laws, lawful ordinances and rules relating to
safety from fire.
(2) The department may deny, suspend or revoke a license in any
case where it finds that there has been a substantial failure to
comply with ORS 441.015 to 441.063, 441.085, 441.087, 441.990
{ - (3) - } { + (2) + } or the rules or minimum standards
adopted under those statutes.
(3) The department may suspend or revoke a license issued under
ORS 441.025 for failure to comply with a department order arising
from a health care facility's substantial lack of compliance with
the provisions of ORS 441.015 to 441.063, 441.084 to 441.087 and
441.990 { - (3) - } { + (2) + } or ORS 441.162 or 441.166, or
the rules adopted thereunder, or for failure to pay a civil
penalty imposed under ORS 441.170 or 441.710.
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(4) The department may order a long term care facility licensed
under ORS 441.025 to restrict the admission of patients when the
department finds an immediate threat to patient health and safety
arising from failure of the long term care facility to be in
compliance with ORS 441.015 to 441.063, 441.084 to 441.087 and
the rules adopted pursuant thereto.
(5) Any long term care facility which has been ordered to
restrict the admission of patients pursuant to subsection (4) of
this section shall post a notice of such restriction, provided by
the department, on all doors providing ingress to and egress from
the facility, for the duration of the restriction.
SECTION 10a. { + If Senate Bill 84 becomes law, section 10 of
this 2007 Act (amending ORS 441.030) is repealed. + }
SECTION 11. ORS 192.660 is amended to read:
192.660. (1) ORS 192.610 to 192.690 do not prevent the
governing body of a public body from holding executive session
during a regular, special or emergency meeting, after the
presiding officer has identified the authorization under ORS
192.610 to 192.690 for holding the executive session.
(2) The governing body of a public body may hold an executive
session:
(a) To consider the employment of a public officer, employee,
staff member or individual agent.
(b) To consider the dismissal or disciplining of, or to hear
complaints or charges brought against, a public officer,
employee, staff member or individual agent who does not request
an open hearing.
(c) To consider matters pertaining to the function of the
medical staff of a public hospital licensed pursuant to ORS
441.015 to 441.063, 441.085, 441.087 and 441.990 { - (3) - }
{ + (2) + } including, but not limited to, all clinical
committees, executive, credentials, utilization review, peer
review committees and all other matters relating to medical
competency in the hospital.
(d) To conduct deliberations with persons designated by the
governing body to carry on labor negotiations.
(e) To conduct deliberations with persons designated by the
governing body to negotiate real property transactions.
(f) To consider information or records that are exempt by law
from public inspection.
(g) To consider preliminary negotiations involving matters of
trade or commerce in which the governing body is in competition
with governing bodies in other states or nations.
(h) To consult with counsel concerning the legal rights and
duties of a public body with regard to current litigation or
litigation likely to be filed.
(i) To review and evaluate the employment-related performance
of the chief executive officer of any public body, a public
officer, employee or staff member who does not request an open
hearing.
(j) To carry on negotiations under ORS chapter 293 with private
persons or businesses regarding proposed acquisition, exchange or
liquidation of public investments.
(k) If the governing body is a health professional regulatory
board, to consider information obtained as part of an
investigation of licensee or applicant conduct.
(L) If the governing body is the State Landscape Architect
Board, or an advisory committee to the board, to consider
information obtained as part of an investigation of registrant or
applicant conduct.
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(m) To discuss information about review or approval of programs
relating to the security of any of the following:
(A) A nuclear-powered thermal power plant or nuclear
installation.
(B) Transportation of radioactive material derived from or
destined for a nuclear-fueled thermal power plant or nuclear
installation.
(C) Generation, storage or conveyance of:
(i) Electricity;
(ii) Gas in liquefied or gaseous form;
(iii) Hazardous substances as defined in ORS 453.005 (7)(a),
(b) and (d);
(iv) Petroleum products;
(v) Sewage; or
(vi) Water.
(D) Telecommunication systems, including cellular, wireless or
radio systems.
(E) Data transmissions by whatever means provided.
(3) Labor negotiations shall be conducted in open meetings
unless negotiators for both sides request that negotiations be
conducted in executive session. Labor negotiations conducted in
executive session are not subject to the notification
requirements of ORS 192.640.
(4) Representatives of the news media shall be allowed to
attend executive sessions other than those held under subsection
(2)(d) of this section relating to labor negotiations or
executive session held pursuant to ORS 332.061 (2) but the
governing body may require that specified information be
undisclosed.
(5) When a governing body convenes an executive session under
subsection (2)(h) of this section relating to conferring with
counsel on current litigation or litigation likely to be filed,
the governing body shall bar any member of the news media from
attending the executive session if the member of the news media
is a party to the litigation or is an employee, agent or
contractor of a news media organization that is a party to the
litigation.
(6) No executive session may be held for the purpose of taking
any final action or making any final decision.
(7) The exception granted by subsection (2)(a) of this section
does not apply to:
(a) The filling of a vacancy in an elective office.
(b) The filling of a vacancy on any public committee,
commission or other advisory group.
(c) The consideration of general employment policies.
(d) The employment of the chief executive officer, other public
officers, employees and staff members of a public body unless:
(A) The public body has advertised the vacancy;
(B) The public body has adopted regular hiring procedures;
(C) In the case of an officer, the public has had the
opportunity to comment on the employment of the officer; and
(D) In the case of a chief executive officer, the governing
body has adopted hiring standards, criteria and policy directives
in meetings open to the public in which the public has had the
opportunity to comment on the standards, criteria and policy
directives.
(8) A governing body may not use an executive session for
purposes of evaluating a chief executive officer or other
officer, employee or staff member to conduct a general evaluation
of an agency goal, objective or operation or any directive to
Enrolled Senate Bill 571 (SB 571-C) Page 7
personnel concerning agency goals, objectives, operations or
programs.
(9) Notwithstanding subsections (2) and (6) of this section and
ORS 192.650:
(a) ORS 676.175 governs the public disclosure of minutes,
transcripts or recordings relating to the substance and
disposition of licensee or applicant conduct investigated by a
health professional regulatory board.
(b) ORS 671.338 governs the public disclosure of minutes,
transcripts or recordings relating to the substance and
disposition of registrant or applicant conduct investigated by
the State Landscape Architect Board or an advisory committee to
the board.
SECTION 12. { + ORS 433.863 and 433.865 are repealed. + }
SECTION 13. { + This 2007 Act takes effect on January 1,
2009. + }
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Passed by Senate May 22, 2007
Repassed by Senate June 18, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 15, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 571 (SB 571-C) Page 8
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 571 (SB 571-C) Page 9