Colorado § 25-14-204 - General smoking restrictions.

§ 25-14-204. General smoking restrictions.

(1) Except as provided in section 25-14-205, smoking is not permitted and a person shall not smoke in any indoor area, including:

(a) Public meeting places;

(b) Elevators;

(c) Government-owned or -operated means of mass transportation, including, but not limited to, buses, vans, and trains;

(d) Taxicabs and limousines;

(e) Grocery stores;

(f) Gymnasiums;

(g) Jury waiting and deliberation rooms;

(h) Courtrooms;

(i) Child day care facilities;

(j) Health-care facilities including hospitals, health-care clinics, doctor's offices, and other health-care-related facilities;

(k) (I) Any place of employment that is not exempted, whether or not open to the public and regardless of the number of employees.

(II) In the case of employers who own facilities otherwise exempted from this part 2, each such employer shall provide a smoke-free work area for each employee requesting not to have to breathe secondhand smoke and emissions from electronic smoking devices.

(l) Food service establishments;

(m) Bars;

(n) Limited gaming facilities and any other facilities in which any gaming or gambling activity is conducted;

(o) Indoor sports arenas;

(p) Restrooms, lobbies, hallways, and other common areas in public and private buildings, condominiums, and other multiple-unit residential facilities;

(q) Repealed.

(r) Bowling alleys;

(s) Billiard or pool halls;

(t) Facilities in which games of chance are conducted;

(u) (I) The common areas of retirement facilities, publicly owned housing facilities, and nursing homes, but not including any resident's private residential quarters.

(II) Nothing in this part 2 affects the validity or enforceability of a contract, whether entered into before, on, or after July 1, 2006, that specifies that a part or all of a facility or home specified in this paragraph (u) is a smoke-free area.

(v) Public buildings;

(w) Auditoria;

(x) Theaters;

(y) Museums;

(z) Libraries;

(aa) To the extent not otherwise provided in section 25-14-103.5, public and nonpublic schools;

(bb) Other educational and vocational institutions;

(cc) Airports;

(dd) Hotel and motel rooms;

(ee) Assisted living facilities, including nursing facilities as defined in section 25.5-4-103 and assisted living residences as defined in section 25-27-102; and

(ff) The entryways of all buildings and facilities listed in subsections (1)(a) to (1)(ee) of this section.

(2) A cigar-tobacco bar:

(a) Shall not expand its size or change its location from the size and location in which it existed as of December 31, 2005; and

(b) Shall prohibit entry by any person under twenty-one years of age and shall display signage in at least one conspicuous place and at least four inches by six inches in size stating: "Smoking allowed. Persons under twenty-one years of age may not enter."

(3) A retail tobacco business:

(a) Shall prohibit entry by any person under twenty-one years of age; and

(b) Shall display signage in at least one conspicuous place and at least four inches by six inches in size stating either:

(I) "Smoking allowed. Persons under twenty-one years of age may not enter."; or

(II) In the case of a retail tobacco business that desires to allow the use of ESDs but not other forms of smoking on the premises, "Vaping allowed. Persons under twenty-one years of age may not enter."

Source: L. 2006: Entire part added, p. 56, § 1, effective July 1. L. 2007: (1)(u) amended, p. 398, § 1, effective August 3. L. 2013: IP(1) amended, (SB 13-283), ch. 332, p. 1895, § 14, effective May 28. L. 2019: IP(1), (1)(k), (1)(u)(I), (1)(bb), and (1)(cc) amended, (1)(q) repealed, and (1)(dd), (1)(ee), and (1)(ff) added, (HB 19-1076), ch. 337, p. 3094, § 3, effective July 1; (2) amended and (3) added, (HB 19-1076), ch. 337, p. 3094, § 3, effective October 1. L. 2020: (2)(b) and (3) amended, (HB 20-1001), ch. 302, p. 1503, § 2, effective July 14.

ANNOTATION

The Colorado Clean Indoor Air Act's (CCIAA) airport smoking concession exemption does not violate the equal protection clause of the fourteenth amendment to the U.S. constitution. The Colorado legislature, by exempting airport smoking concessions from the CCIAA's operation, rationally distinguished those concessions from the majority of other indoor facilities in the state that are open to the public. Coal. for Equal Rights, Inc. v. Ritter, 517 F.3d 1195 (10th Cir. 2008).

The CCIAA does not violate substantive due process by imposing criminal liability on bar and restaurant owners for the acts of others. The plain language of subsection (1) prohibits both smoking by patrons and the allowing of smoking by bar and restaurant owners. The CCIAA does not criminalize owners for the acts of others. It criminalizes their own actions allowing their patrons to smoke. Coal. for Equal Rights v. Owens, 458 F. Supp. 2d 1251 (D. Colo. 2006), aff'd sub nom. Coal. for Equal Rights, Inc. v. Ritter, 517 F.3d 1195 (10th Cir. 2008).

The CCIAA does not violate due process by infringing on bar and restaurant owners' use of their property. Coal. for Equal Rights v. Owens, 458 F. Supp. 2d 1251 (D. Colo. 2006), aff'd sub nom. Coal. for Equal Rights, Inc. v. Ritter, 517 F.3d 1195 (10th Cir. 2008).

The plain language of subsection (2) states that a plaintiff who legally expands his cigar-tobacco bar prior to July 1, 2006 would become subject to penalties as of July 1, 2006 for his pre-enactment expansion. This is impermissible ex post facto legislation; however, the challenge to the retroactive law has become moot by the simple passage of time. Coal. for Equal Rights v. Owens, 458 F. Supp. 2d 1251 (D. Colo. 2006), aff'd sub nom. Coal. for Equal Rights, Inc. v. Ritter, 517 F.3d 1195 (10th Cir. 2008).

The CCIAA does not violate theaters' rights under the first amendment to the U.S. constitution or section 10 of article II of the Colorado constitution. Curious Theatre Co. v. Dept. of Pub. Health & Env't, 216 P.3d 71 (Colo. App. 2008), aff'd, 220 P.3d 544 (Colo. 2009).

Smoking on stage during the course of a play is expressive conduct for purposes of the first amendment, and the CCIAA does place an incidental burden on this conduct by prohibiting it in indoor theaters. Curious Theatre Co. v. Dept. of Pub. Health & Env't, 216 P.3d 71 (Colo. App. 2008), aff'd on other grounds, 220 P.3d 544 (Colo. 2009).

The CCIAA is content neutral, however, because it focuses on the adverse health effects of tobacco smoke, not on expression. Curious Theatre Co. v. Dept. of Pub. Health & Env't, 216 P.3d 71 (Colo. App. 2008), aff'd, 220 P.3d 544 (Colo. 2009).

Because the CCIAA is content neutral, it is subject to an intermediate level of scrutiny as set forth in United States v. O'Brien. The four factors of O'Brien are satisfied in this case. First, the statute is within the constitutional power of the government because the legislature has the authority to enact statutes designed to promote the public health. Second, the statute furthers an important or substantial governmental interest by protecting the health of its citizens. Third, the government's interest in establishing the statute is unrelated to the suppression of free expression because it is content neutral and justified by health concerns unrelated to expression. Finally, the incidental restriction is no greater than necessary to further the interest because it is narrowly tailored by focusing on the one form of conduct, smoking, upon which the state's announced interest in protecting the public's health depends. The statute allows alternative channels of expression, such as outdoor theaters and fake and prop cigarettes. The theaters did not demonstrate that the use of the alternatives is so inadequate as to outweigh the state's overriding interest in protecting the health of its citizens. Curious Theatre Co. v. Dept. of Pub. Health & Env't, 216 P.3d 71 (Colo. App. 2008), aff'd, 220 P.3d 544 (Colo. 2009).