NEBRASKA CLEAN INDOOR AIR ACT
Operative Date: June 1, 2009
71-5716. Act, how cited.
Sections 71-5716 to 71-5734 shall be known and may be cited as the Nebraska Clean Indoor Air Act. Source: Laws, 2008, LB395,*1.
71-5717. Purpose of act.
The purpose of the Nebraska Clean Indoor Air Act is to protect the public health and welfare by prohibiting smoking in public places and places of employment. The act shall not be construed to prohibit or otherwise restrict smoking in outdoor areas. The act shall not be construed to permit smoking where it is prohibited or otherwise restricted by other applicable law, ordinance, or resolution. The act shall be liberally construed to further its purpose. Source: Laws 2008, LB395, *2
71-5718. Definitions, where found.
For purposes of the Nebraska Clean Indoor Air Act, the definitions found in sections 71-5719 to71-5728 apply. Source: Laws 2008, LB395, *3.
71-5719. Employed, defined.
Employed means hired, contracted, subcontracted, or otherwise engaged to furnish goods or services. Source: Laws 2008, LB395, *4.
71-5720. Employee, defined.
Employee means a person who is employed by an employer in consideration for direct or indirect monetary wages, profit, or other remuneration. Source: Laws 2008, LB395, *5.
71-5721. Employer defined.
Employer means a person, nonprofit entity, sole proprietorship, partnership, joint venture, corporation, limited partnership, limited liability company, cooperative, firm, trust, association, organization, or other business entity, including retail establishments where goods or services are sold, who or which employs one or more employees. Source: Laws 2008, LB395, *6.
71-5722. Guestroom or suite, defined.
Guestroom or suite means a sleeping room and directly associated private areas, such as a bathroom, a living room, and a kitchen area, if any, rented to the public for their exclusive transient occupancy, including, but not limited to, a guestroom or suite in a hotel, motel, inn, lodge, or other such establishment. Source: Laws 2008, LB395, *7.
71-5723. Indoor area, defined.
Indoor area means an area enclosed by a floor, a ceiling, and walls on all sides that are continuous and solid except for closeable entry and exit doors and windows and in which less than twenty percent of the total wall area is permanently open to the outdoors. For walls in excess of eight feet in height, only the first eight feet shall be used in determining such percentage. Source: Laws 2008, LB395, *8.
71-5724. Place of employment, defined.
Place of employment means an indoor area under the control of a proprietor than an employee accesses as part of his or her employment without regard to whether the employee is present or work is occurring at any given time. The indoor area includes, but is not limited to, any work area, employee breakroom, restroom, conference room, meeting room, classroom, employee cafeteria, and hallway. A private residence is a place of employment when such residence is being used as a licensed child care program and one or more children who are not occupants of such residence are present. Source: Laws 2008, LB395, *9.
71-5725. Proprietor, defined.
Proprietor means any employer, owner, operator, supervisor, manager, or other person who controls, governs, or directs the activities in a place of employment or public place. Source: Laws 2008, LB395, *10.
71-5726. Public place, defined.
Public place means an indoor area to which the public is invited or in which the public is permitted, whether or not the public is always invited or permitted. A private residence is not a public place. Source: Laws 2008, LB395, *11.
71-5727. Smoke or smoking, defined.
Smoke or smoking means the lighting of any cigarette, cigar, pipe, or other smoking material or the possession of any lighted cigarette, cigar, pipe, or other smoking material, regardless of its composition. Source: Laws 2008, LB395, *12.
71-5728. Tobacco retail outlet, defined.
Tobacco retail outlet means a store that sells only tobacco and products directly related to tobacco. Products directly related to tobacco do not include alcohol, coffee, soft drinks, candy, groceries, or gasoline. Source: Laws 2008, LB395, *13.
71-5729. Smoking in a place of employment or public place prohibited.
Except as otherwise provided in section 71-5730, it is unlawful for any person to smoke in a place of employment or a public place. Source: Laws 2008, LB395, *14.
The following indoor areas are exempt from section 71-5729: (1) Guestrooms and suites that are rented to guests and are designed as smoking rooms, except that not more than twenty percent of rooms rented to guests in an establishment may be designated as smoking rooms. All smoking rooms on the same floor shall be contiguous, and smoke from such rooms shall not infiltrate into areas where smoking is prohibited under the Nebraska Clean Indoor Air Act; (2) Indoor areas used in connection with a research study on the health effects of smoking conducted in a scientific or analytical laboratory under state or federal law or at a college or university approved by the Coordinating Commission for Postsecondary Education; and (3) Tobacco retail outlets. (4) Cigar bars as defined in section 53-103. (This subsection becomes effective August 30, 2009.) Source: Laws 2008, LB395, *15; Laws 2009, LB355, *6.
71-5731. Proprietor; duties.
A proprietor of a place of employment or public place where smoking is prohibited under the Nebraska Clean Indoor Air Act shall take necessary and appropriate steps to ensure compliance with the act at such place. Source: Laws 2008, LB 395, *16.
71-5732. Department of Health and Human Services; local public health department; enjoin violations, retaliation prohibited; waiver of act.
(1) The Department of Health and Human Services or a local public health department as defined in Section 71-1626 may institute an action in any court with jurisdiction to enjoin a violation of the Nebraska Clean Indoor Air Act. Any interested party may report possible violations of the act to such departments. (2) No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because such employee, applicant, or customer reports or attempts to report a violation of the act. (3) The Department of Health and Human Services amy waive provisions of the Nebraska Clean Indoor Air Act upon good cause shown and shall provide for appropriate protection of the public health and safety in granting of such waivers. Source: Laws 2008, LB395, *17.
71-5733. Prohibited acts; penalties, act of employee or agent, how construed.
(1) A person who smokes in a place of employment or public place in violation of the Nebraska Clean Indoor Air Act is guilty of a Class V misdemeanor for the first offense and a Class IV misdemeanor for the second and any subsequent offenses. A person charged with such offense may voluntarily participate, at his or her own expense, in a smoking cessation program approved by the Department of Health and Human Services, and such charge shall be dismissed upon successful completion of the program. (2) A proprietor who fails, neglects, or refuses to perform a duty under the Nebraska Clean Indoor Air Act is guilty of a Class V misdemeanor for the first offense and a Class IV misdemeanor for the second and any subsequent offenses. (3) Each day that a violation continues to exist shall constitute a separate and distinct violation. (4) Every act or omission constituting a violation of the Nebraska Clean Indoor Air Act by an employee or agent of a proprietor is deemed to be the act or omission of such proprietor, and such proprietor shall be subject to the same penalty as if the act or omission had been committed by such proprietor. Source: Laws 2008, LB395, *18.
71-5734. Rules and regulations.
The Department of Health and Human Services shall adopt and promulgate rules and regulations necessary to implement the Nebraska Clean Indoor Air Act. The department shall consult with interested persons and professional organizations before adopting such rules and regulations. Source: Laws 2008, LB395, *19.
CIGAR BARS - LAWS 2009, LB355
Effective Date: August 30, 2009
53-103. Terms, defined.
(42) Cigar bar means an establishment operated by a holder of a Class C liquor license which: (a) Does not sell food; (b) In addition to selling alcohol, annually receives ten percent or more of its gross revenue from the sale of cigars and other tobacco products and tobacco-related products, except from the sale of cigarettes as defined in section 69-2702. A cigar bar shall not discount alcohol if sold in combination with cigars or other tobacco products and tobacco-related products;(c) Has a walk-in humidor on the premises; and (d) Does not permit the smoking of cigarettes. (Laws 2009, LB355, *2)
53-124. Annual license fees; where paid.
If the applicant is making application to operate a cigar bar, the initial, nonrefundable application fee shall be one thousand dollars, the annual fee thereafter shall be as specified in this subdivision, and the application shall meet the requirements of section 53-131. (Laws 2009, LB355,*3)
53-131. Retail, craft brewery, and microdistillery licenses, application; fees; notice of application to city, village, or county.
(b) The license fee if under section 53-124, such fee is payable to the commission, which fee shall be returned to the applicant if the application is denied, except that if the applicant is making application to operate a cigar bar, the initial fee is nonrefundable as provided in subdivision (5) (c) of section 53-124; (3) For an application to operate a cigar bar, the application shall include proof of the cigar bar's annual gross revenue as requested by the commission and such other information as requested by the commission to establish the intent to operate as a cigar bar. The commission may adopt and promulgate rules and regulations to regulate cigar bars. (Laws 2009, LB355,*4)
LB355, Section 5: No county resolution or city ordinance that prohibits smoking in indoor areas shall apply to cigar bars. (Laws 2009, LB355, *5.)