North Dakota § 23-12-10 - Smoking restrictions - Exceptions - Retaliation - Application

§ 23-12-10. Smoking restrictions - Exceptions - Retaliation - Application

1. In order to protect the public health and welfare and to recognize the need for individuals to breathe smoke-free air, smoking is prohibited in all enclosed areas of: a. Public places; and b. Places of employment. 2. Smoking is prohibited within twenty feet [6.10 meters] of entrances, exits, operable windows, air intakes, and ventilation systems of enclosed areas in which smoking is prohibited. Owners, operators, managers, employers, or other persons who own or control a public place or place of employment may seek to rebut the presumption that twenty feet [6.10 meters] is a reasonable minimum distance by making application to the director of the local health department or district in which the public place or place of employment is located. The presumption will be rebutted if the applicant can show by clear and convincing evidence that, given the unique circumstances presented by the location of entrances, exits, windows that open, ventilation intakes, or other factors, smoke will not infiltrate or reach the entrances, exits, open windows, or ventilation intakes or enter into such public place or place of employment and, therefore, the public health and safety will be adequately protected by a lesser distance. 3. The following areas are exempt from subsections 1 and 2: a. Private residences, except those residences used as a child care, adult day care, or health care facility subject to licensure by the department of health and human services. b. Outdoor areas of places of employment, except those listed in subsection 2. c. Any area that is not commonly accessible to the public and which is part of an owner-operated business having no employee other than the owner-operator. d. A cigar lounge that permits the smoking of cigars and pipe tobacco purchased on the premises, but may not permit the smoking of any other product on the premises. (1) An applicant for a certificate to operate a cigar lounge shall report to the tax commissioner, on a form prescribed by the commissioner, that the premises in which the cigar lounge will be operated has a humidor; is 4. 5. 6. 7. enclosed by solid walls or windows, a ceiling, and a solid door; and is equipped with a ventilation system by which exhausted air is not recirculated to nonsmoking areas and smoke is not backstreamed into nonsmoking areas. The commissioner may not require an applicant to report information regarding income from the sale of cigars and pipe tobacco in an initial application. Upon receipt of a report asserting compliance with this paragraph, the commissioner shall issue the applicant a certificate to operate a cigar lounge. (2) A cigar lounge asserting the lounge meets the requirements of paragraph 1 shall report to the tax commissioner before February first of each year following a full calendar year of operation, on a form prescribed by the commissioner, the revenue from the previous calendar year generated from the sale of cigars and pipe tobacco as a percentage of annual gross income from receipts or sales. Upon receipt of a report asserting the cigar lounge generates fifteen percent or more of the business's annual gross income from receipts or sales from the sale of cigars and pipe tobacco, the commissioner shall renew the annual certificate. The commissioner is not required to confirm the accuracy of information reported but may not renew a certificate absent supporting documentation from the lounge. (3) Information reported to the commissioner under this subdivision is subject to the confidentiality provisions of section 57-39.2-23. (4) For purposes of this subdivision: (a) "Cigar" means an individual roll of tobacco which has a wrapper or cover of whole leaf tobacco; does not contain filler other than tobacco filler; does not contain binder other than tobacco binder; does not contain additives other than water; does not contain a filter, tip, or nontobacco mouthpiece; weighs at least six pounds per thousand count; and is made by hand, except to allow for the use of a manually operated machine to assist in bunching, rolling, and binding. (b) "Cigar lounge" means a business dedicated, in whole or in part, to the smoking of cigars and pipe tobacco, which has a valid certificate issued by the tax commissioner. (c) "Pipe tobacco" has the meaning provided in section 57-36-01. Smoking as part of a traditional American Indian spiritual or cultural ceremony is not prohibited. No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or other person because that person asserts or exercises any rights afforded by this section or reports or attempts to prosecute a violation of this section. An employee who works in a setting where an employer allows smoking does not waive or surrender any legal rights the employee may have against the employer or any other party. Violations of this subsection shall be a class B misdemeanor. This section may not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. Notwithstanding any other provision of this chapter, an owner, operator, manager or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place.