What Hoteliers Need to Know About the New Washington State Smoking Ban

By Irvin W. Sandman and Russell C. Savrann
November 30 , 2005

As of December 8, 2005, the Clean Indoor Air Act prohibits smoking in all indoor public spaces and places of employment throughout the state. The amendments, which were approved by the voters on November 8 (I-901), create one of the most comprehensive bans on public smoking in the nation.

What is the Washington hotelier to do? The first part of this Cyber-Graham contains a list of "Frequently Asked Questions" provided by a local health department. We then give you some more pointed questions and answers to test whether the law can really mean what it appears to say and to point out some gray areas. Then we provide you a summary to-do list.

What One Local Health Department Advises
The Tacoma/Pierce County Health Department has published a list of FAQs. The questions and answers give a helpful starting point for those seeking to comply with the law, especially in Pierce County. We quote department's FAQs, with the Department's permission:

"Why did the law change?
The law was changed to protect employees and the public in Washington State from exposure to secondhand smoke. It amends the 1985 Clean Indoor Air Act to prohibit smoking in all public places and within twenty-five (25) feet or less of entrances, exits, opening windows and ventilation intakes.

What does the law require me to do?
You are required to post "No Smoking" signs that are clearly visible at each entrance and in other prominent locations and notify employees and patrons that smoking is no longer permitted in your business.

What types of places are covered under the new law?
All indoor public spaces and workplaces, including restaurants, bars, skating rinks, bowling alleys and casinos, are required to be smoke-free. Hotels and motels must ensure that at least 75% of the rooms are smoke-free.

Does the law apply to private clubs such as Yacht Clubs, Country Clubs, and Fraternal Organizations?
Yes. The law applies to private clubs that have employees, volunteers or that allow guests. These businesses are required to be smoke-free.

Is smoking allowed in outside seating areas?
Smoking is permitted in outside seating areas that are more than twenty-five (25) feet from building entrances, exits, ventilation intakes or openable windows.

Can I provide an employee smoking room?
No. The law prohibits employers from providing employee smoking rooms.

Where can employees go to smoke?
Employees can smoke outside, at least twenty-five feet (25) away from building entrances, exits, ventilation intakes and openable windows.

What should I do if someone starts smoking in an area where smoking is prohibited?
It is the responsibility of the business to inform the individual that he/she is in violation of the law. If the individual refuses to stop smoking or relocate to an outside area that is at least twenty-five (25) feet away from building entrances, exits, ventilation intakes or openable windows, contact your local law enforcement agency."

The Tacoma/Pierce County Health Department's web site is www.tpchd.org/index.php, and some additional information and contact points are available there. King County also has FAQs and links at www.metrokc.gov/health/tobacco/901.htm, though the FAQs are somewhat less detailed.

Graham & Dunn's More Pointed Questions and Answers
The local health department's FAQs are helpful, but can the law really go that far? The short answer is mostly "yes," and sometimes the law might go even further. Here are some additional, more pointed questions, answers, and examples, as well as some gray areas:

I have a cigar lounge in my hotel. It is ventilated with state-of-the-art equipment. How will the law affect our cigar lounges?
You can no longer have a cigar lounge.

To illustrate the breadth of the law, this is even true if the lounge is in a private golf club-if the club has employees, then it is a place of employment and the cigar lounge would be within the place of employment. No smoking allowed.
Do I have to change my smoking/nonsmoking room mix?
Maybe. The law states that you must prohibit smoking in your "public places," and it specifically states that "public places" includes "no less than 75% percent of the sleeping quarters within a hotel or motel that are rented to guests." If you currently have less than 75% of your rooms as nonsmoking, then you'll have to adjust your inventory. Do you need to post "no smoking" signs in the nonsmoking room? The law doesn't appear to specifically require this, though the point may be arguable. Hotels that currently enforce nonsmoking rooms well may find that existing practices are acceptable. If a hotel guest smells smoke in your nonsmoking room, however, be aware that the guest could call the health department. If you haven't posted signs in your nonsmoking room or you don't have policies to address guest infractions, you may get notice of a violation from your health department.
My hotel's restaurant has an outdoor seating area. Patrons sometimes smoke there. Can I still allow that?
This question is actually a harder question than it appears.

If the outdoor area is within 25 feet from an entrance, exit, ventilation intake or openable windows, then the answer is relatively clear: "no", unless you successfully make application to "rebut" the "presumptively reasonable minimum distance" of 25 feet.
In Pierce County, you are presumably safe if your seating area is outside the 25-foot distance. This is what the Tacoma/Pierce County Health Department says in its FAQs, quoted above. One would think that this department will not cite you under these circumstances, given the position it takes on its web site.
Unfortunately, however, the wording of the statute on this question is problematic. Smoking is prohibited in any "place of employment." A place of employment includes any "area under the control of an employer" that "employees are required to pass through during the course of employment." It includes "common areas." Unlike the definition of "public place," the definition of "place of employment" is not explicitly confined to "buildings." Arguably, a local health department may take the position that your outdoor dining area is a place of employment because employees must "pass through" there to serve the tables. Check with your local health department to see if it has taken a formal position on this issue. If not, to be safe you should probably prohibit smoking in any outdoor dining area served by your employees.
What does this "presumptively reasonable minimum distance" of 25 feet really mean?
The statute states, in essence, that smoking is prohibited within 25 feet of any building entrance, exit, ventilation intake or openable window of any public place or place of employment. The 25-foot distance is the "presumptively reasonable minimum distance" within which you must prohibit smoking. The statute allows you to "seek to rebut the presumption." You can do this by applying to the director of the local health department or district and showing, "by clear and convincing evidence," that smoke "will not infiltrate or reach" or "enter into" the building or openings.
What are the consequences if, as a business owner, I fail to comply with the new law?
If you fail to post the signs or prohibit smoking as the statute requires and it comes to the local health department's attention, you would receive a warning for your first violation. Subsequent violations are subject to civil fines of up to one hundred dollars per violation.
Your local health department is charged with enforcing the law as it applies to business owners' obligations. The local health department may itself serve a violation notice on you, or it may call on the city or county attorney to enjoin your violation and assess the civil penalty.
There are open enforcement questions, and here is one example: After you have received a prior warning, you allow five people to smoke in your cocktail lounge. Are you subject to a fine of $100, $200, $500, or $600? Under the law, "each day upon which a violation occurs or is permitted to continue constitutes a separate violation." Depending on how you read the statute, you may be liable for (a) just $100 because you violated the statute on that day, (b) $200, one violation for allowing the smokers and one violation for the "day", (c) $500 for five violations (one for each smoker), or (d) $600, one violation for each smoker and for the "day." Issues such as this will likely be determined by each enforcement officer. The enforcement habits may vary from one officer to the next. Ultimately, the courts will decide.
If I'm obligated to prohibit smoking in my hotel or restaurant, what do I do if someone disobeys my signs and smokes anyway?
Under the law owners must "prohibit smoking." The law doesn't really say how you go about doing this, other than posting signs. The question likely becomes, how can I show that I took reasonable steps to prohibit smoking?
If an individual smokes where smoking is prohibited, then the individual can be ticketed as he would be for a traffic violation. The local law enforcement agencies (typically the police or sheriff) are required to enforce the law "by issuing a notice of infraction to be assessed in the same manner as traffic infractions."
Thus, if you want to show that you did, in fact, fulfill your obligation to "prohibit smoking" in an area, then you should probably proceed as follows. If a patron is smoking, your employees should be instructed to inform the patron to stop. If the patron fails to do so, then your employees should call the police and make a record of the call. You should include a policy along these lines in your employee manuals. Setting out and following a policy of this kind would likely protect you if a nonsmoking patron complains to the health department that you failed to "prohibit smoking" in a nonsmoking area.
Is it a violation of the law for a passerby to smoke a cigarette while walking past my hotel on the sidewalk?
No. The statute says that "any person passing by or through a public place while on a public sidewalk or public right of way has not intentionally violated this chapter."
I have an office. After all my employees go home, can I smoke?
The law may be somewhat vague on this question. Arguably, if it is after hours and there are no employees on site, then the area might, perhaps, no longer be a "place of employment." If an employee smells the smoke the next day and complains, though, the health department may take a different view.
Can I smoke in my own house?
The law is so broad that this issue had to be addressed specifically. The law states that "a private residence or home-based business is not a place of employment." Even with this exception, though, there is a "claw-back" clause-you actually do have to prohibit smoking in your own home, and presumably post no-smoking signs, if you use your home "to provide licensed child care, foster care, adult care, or other similar social service on the premises."

What You Need to Start Doing on December 8, 2005
To summarize briefly (but see the previous sections for some initial areas of nuance):

Post Signs.
Conspicuously and liberally post signs prohibiting smoking. You should post the signs "at each building entrance" of any building where there are employees or patrons (essentially, any building other than a private residence). Within your hotel's retail areas, you should also post signs in "other prominent locations throughout the [retail] place."
Make sure that you prohibit smoking in at least 75% of the rooms in your hotel or motel.
Seventy-five percent of the rentable sleeping quarters within your hotel or motel must be nonsmoking rooms. Consider posting a sign in the room. Have policies that describe reasonable steps to enforce the nonsmoking requirement and follow them.
"Police" the 25-foot areas.
Identify the areas that are within 25 feet of doors, windows that open, and other ventilation intakes. Take reasonable steps to prohibit smoking there. If the opening is a door, post a no-smoking sign there. Although the law doesn't explicitly require signs by windows and ventilation intakes, the law does require you to prohibit smoking there. To show that you did so, signs would be helpful.
Consider prohibiting smoking in any outdoor dining areas.
Your local health department may, or may not, consider any outdoor dining area (even outside of 25 feet of any door, etc.) a "place of employment" where smoking must be prohibited. Check with your local health department web site. To be safe, prohibit smoking in any outdoor area that your employees work and post signs accordingly.
Train your Staff.
Educate your hotel and restaurant employees on the requirements of the new law and what they will be expected to do to enforce the smoking ban. Consider a written policy as follows: If an employee sees a person smoking in violation of the law, the employee (or a designated employee) should inform the person that smoking is not allowed. If the smoker persists, a designated employee should call the police. Keep records of your enforcement activities.
Seek help if you're still uncertain.
Certainly take advantage of information and policies of your local health department. If you still have questions or concerns, seek the assistance of knowledgeable counsel.

Please feel free to contact Irvin W. Sandman (206.340.9641 or isandman@grahamdunn.com), Russell C. Savrann (206.340.9665, orrsavrann@grahamdunn.com) or Mark N. Ludwig (206.340.9673 or mludwig@grahamdunn.com) for more information about the new Washington state smoking ban.