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SNL2005 CHAPTER S-16.2

SMOKE-FREE ENVIRONMENT ACT, 2005

Amended:

2011 c5; 2013 c16 s25; 2013 cF-21.1 s20

CHAPTER S-16.2

AN ACT TO REVISE THE LAW RESPECTING SMOKING IN PUBLIC PLACES AND THE WORKPLACE

(Assented to May 19, 2005 )

Analysis



Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Smoke-free Environment Act, 2005 .

2005 cS-16.2 s1

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Definitions

        2. In this Act

             (a)  "acute health care facility" means a facility or section of a facility where acute health care is provided;

             (b)  "designated smoking room" means an enclosed room that is designated for smoking under section 5;

             (c)  "employee" means a person who is employed by an employer and includes a person whose services are contracted for by an employer;

             (d)  "employer" means a person who employs one or more employees or who contracts for the services of one or more persons;

             (e)  "facility" means a facility described in subsection 4(2);

              (f)  "health care facility" means a hospital, medical clinic, dental clinic and other place where health care is provided;

             (g)  "inspector" means a person who is designated as an inspector under section 7;

             (h)  "minister", unless the context indicates otherwise, means the minister assigned the responsibility for this Act under the Executive Council Act ;

          (h.1)  "motor vehicle" means a motor vehicle as defined in the Highway Traffic Act ;

              (i)  "owner" means the owner of a public place and includes the person who has responsibility for and control over the activities of a public place;

              (j)  "operator" means a person who owns or operates a facility;

             (k)  "public place" means an area or place referred to in paragraphs 4(1)(b) to (u);

              (l)  "smoke" means to smoke, hold or otherwise have control over an ignited tobacco product;

            (m)  "tobacco product" means a product manufactured from tobacco and intended to be smoked; and

             (n)  "workplace" means an indoor or other enclosed space in which employees perform the duties of their employment, and includes an adjacent corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area frequented by the employees during the course of their employment.

2005 cS-16.2 s2; 2011 c5 s1

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Crown bound

        3. This Act is binding on the Crown.

2005 cS-16.2 s3

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Prohibition

        4. (1) A person shall not smoke in

             (a)  a workplace;

             (b)  a place that is normally open to members of the public;

             (c)  a part of an office building or other commercial establishment that is normally open to members of the public;

             (d)  a health care facility;

             (e)  a child care centre providing child care services that are licensed under the Child Care Services Act ;

              (f)  a college, university, educational institution or school operated under the College Act , 1996 , the Memorial University Act , the  Private Training Institutions Act or the Schools Act, 1997 ;

             (g)  food premises licensed under the Food Premises Act ;

             (h)  premises licensed under the Liquor Control Act ,

              (i)  a cinema or theatre;

              (j)  a video arcade, bingo hall or pool hall;

             (k)  a recreational facility where the primary activity is physical recreation, a bowling alley, fitness centre, gymnasium, pool or rink;

              (l)  a multi-service centre, community centre or hall, arena, fire hall, church or church hall;

            (m)  a retail shop, boutique, market, store or shopping mall;

             (n)  a laundromat;

             (o)  a ferry, ferry terminal, airport terminal, bus, bus station or shelter, taxi, taxi shelter, limousine or vehicle carrying passengers for hire;

             (p)  a motor vehicle that is an ambulance;

             (q)  a common area of a hotel, motel, commercial building or multi-unit residential building, including a corridor, lobby, stairwell, elevator, escalator, eating area, washroom or restroom;

              (r)  an office of the government of the province, a municipality, city, school board, health care authority or agency of them;

             (s)  a provincial jail, prison, detention centre or reformatory;

              (t)  a private club to which a member or invited person has access; and

             (u)  another place established by regulation by the Lieutenant-Governor in Council.

             (2)  Notwithstanding paragraph (1)(d), the operator of a facility that

             (a)  provides long term care, including a long term care facility located within an acute care facility; or

             (b)  is a psychiatric facility or unit,

may allow smoking for residents of that facility in a designated smoking room.

             (3)  An owner shall ensure that a person refrains from smoking in the public place that is normally open to members of the public for which that owner is responsible.

2005 cS-16.2 s4; 2013 cF-21.1 s20

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Designated smoking room

        5. (1) Notwithstanding paragraph 4(1)(a), in a workplace that is

             (a)  a remote worksite as designated by the regulations;

             (b)  an underground mining operation; or

             (c)  a marine installation or structure as defined in section 152 of the Canada-Newfoundland Atlantic Accord Implementation Act (Canada )

an employer may, in accordance with the regulations, designate one or more enclosed rooms that are under that employer's control as designated smoking rooms for employees.

             (2)  An operator may, in accordance with the regulations, designate one or more enclosed rooms in a facility that are under that operator's control as designated smoking rooms for residents of that facility.

             (3)  An employer or operator and a person acting on behalf of either shall ensure that persons refrain from smoking in a

             (a)  workplace referred to in subsection (1); or

             (b)  facility,

under that employer’s or operator's control other than in a designated smoking room.

             (4)  A room that is normally used or occupied by non-smokers shall not be made a designated smoking room.

2005 cS-16.2 s5; 2011 c5 s2

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Signs required

        6. (1) Employers, owners and operators shall post and keep posted those signs that may be prescribed under the regulations prohibiting smoking in a workplace, public place or facility referred to in subsection 4(2).

             (2)  An employer or operator shall post signs that identify designated smoking rooms in a workplace or facility.

2005 cS-16.2 s6

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Protection for people under 16 years of age in motor vehicles

      6.1 A person shall not drive or have the care or control of a motor vehicle, whether it is in motion or not,

             (a)  while there is a person smoking in the motor vehicle; and

             (b)  that motor vehicle is occupied by a person under 16 years of age,

whether or not a window, sunroof, car-top, door or other feature of the motor vehicle is open.

2011 c5 s3

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Inspectors

        7. (1) The minister may appoint inspectors to inspect

             (a)  public places; and

             (b)  facilities,

to ensure compliance with this Act.

             (2)  The minister responsible for the Occupational Health and Safety Act may appoint inspectors to inspect workplaces to ensure compliance with this Act.

             (3)  For the purpose of subsections (1) and (2), an inspector

             (a)  may enter a

                      (i)  workplace,

                     (ii)  public place, or

                    (iii)  facility

other than a private dwelling place, at a reasonable time without warrant or notice;

             (b)  may commence proceedings, which may be in the form of a ticket issued under the Provincial Offences Act , in respect of a violation of this Act;

             (c)  may require the production of drawings, specifications or floor plans for a workplace, public place or facility, other than a private dwelling, and may inspect, examine and copy them; and

             (d)  may make inquiries of a person who is or was in a workplace, public place or facility.

             (4)  A person shall not obstruct or interfere with an inspector in the execution of the inspector's duties under this Act.

2005 cS-16.2 s7

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Orders by inspectors

        8. Where an inspector finds that an operator, employer or owner of a workplace, public place or facility is not complying with a provision of this Act or a regulation made under this Act the inspector may order the operator, employer or owner, or a person whom the inspector believes to be in charge to comply with the provision and may require the order to be carried out immediately or within the period of time that the inspector specifies.

2005 cS-16.2 s8

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Enforcement by police officers

      8.1 (1) Notwithstanding section 7, section 6.1 shall be enforced by police officers.

             (2)  For the purpose of ensuring compliance with section 6.1, a police officer may require the driver of a motor vehicle to stop.

             (3)  The driver of a motor vehicle, when signalled or requested to stop by a police officer, shall immediately come to a safe stop.

             (4)  At a trial to determine whether a contravention of section 6.1 has occurred, a court may find evidence that the police officer enforcing the section honestly and reasonably believed a person present in the motor vehicle to be under 16 years of age to be sufficient proof of the person’s age, unless the accused shows on a balance of probabilities that the person was, at the time of the offence, 16 years of age or more.

2011 c5 s4

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Discriminatory action prohibited

        9. (1) An employer, a person acting on behalf of an employer or a union shall not take a discriminatory action against an employee by

             (a)  dismissing or threatening to dismiss an employee;

             (b)  disciplining, suspending or threatening to discipline or suspend an employee;

             (c)  imposing a penalty upon an employee; or

             (d)  intimidating or coercing an employee,

because the employee has acted in accordance with or has sought the enforcement of this Act.

             (2)  Where an action described in paragraphs (1)(a) to (d) occurs against an employee because that employee has acted in accordance with or has sought the enforcement of this Act, that action shall, in the absence of evidence to the contrary, be considered to be a discriminatory action.

             (3)  Where an employee alleges that his or her employer has taken a discriminatory action described in paragraphs (1)(a) to (d) against him or her, the employee may,

             (a)  where a collective agreement is in force between a union in which the employee is a member and the employer, and the collective agreement provides for the use of a grievance procedure where discrimination is alleged, follow that grievance procedure; or

             (b)  apply to the Labour Relations Board for a determination as to whether the action is discriminatory.

             (4)  Where an employee alleges that his or her union has taken a discriminatory action described in paragraphs (1)(a) to (d) against him or her, the employee may apply to the Labour Relations Board for a determination as to whether the action is discriminatory.

             (5)  Where the Labour Relations Board makes a finding that an action referred to in paragraphs (1)(a) to (d) is discriminatory, it shall order

             (a)  the reinstatement of the employee to whom the action was applied under the same terms and conditions under which that employee was formerly employed;

             (b)  the employer to pay or make up to the employee his or her lost wages, salary and other benefits;

             (c)  that a reference to the dismissal or disciplinary action against the employee on the employer's records be deleted; and

             (d)  the reinstatement of the employee to his or her trade union where the employee has been expelled by the union.

             (6)  Where an order is made under this section and is filed with the Trial Division that order is enforceable as if it were a judgment or order of that court.

             (7)  In this section "Labour Relations Board" means the Labour Relations Board established under the Labour Relations Act .

2005 cS-16.2 s9; 2013 c16 s25

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Offence

      10. A person who contravenes this Act or who fails to comply with an order of an inspector made under this Act is guilty of an offence and is liable on summary conviction, for a person

             (a)  who is not an operator, employer or owner, to a fine of not less than $50 and not more than $500; and

             (b)  who is an operator, employer or owner, to a fine of not less than $500 and not more than $5,000.

2005 cS-16.2 s10

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Regulations

      11. The Lieutenant-Governor in Council may make regulations

             (a)  prescribing signs and providing for their use;

             (b)  respecting the independent ventilation of designated smoking rooms;

          (b.1)  designating a worksite as a remote worksite for the purpose of subsection 5(1);

             (c)  defining a term for the purposes of the Act that is not otherwise defined in the Act;

             (d)  exempting events, areas, buildings or parts of buildings from the application of this Act; and

             (e)  establishing places where smoking is prohibited.

2005 cS-16.2 s11; 2011 c5 s5

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Conflict with another Act

      12. (1) A municipality as defined in the Municipalities Act, 1999 and a city established under the City of Corner Brook Act , City of Mount Pearl Act or City of St. John’s Act may make regulations or by-laws respecting smoking in a workplace or a public place that are more restrictive than this Act.

             (2)  Where this Act conflicts with another Act or a regulation, or a municipal or city by-law, respecting smoking in a workplace or public place, the provision that is the more restrictive of smoking prevails.

2005 cS-16.2 s12

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RSNL1990 cL-18 Amdt.

      13. Section 33 of the Liquor Control Act is amended by adding immediately after subsection (6) the following:

          (6.1)  The board may cancel a licence where the licensee has been convicted of an offence under the Smoke-free Environment Act, 2005 .

2005 cS-16.2 s13

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SNL1993 c16.1 Rep.

      14. The Smoke-free Environment Act is repealed.

2005 cS-16.2 s14

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Commencement

      15. This Act comes into force on a date to be proclaimed by the Lieutenant-Governor in Council. (In force - Jul. 1/05)

2005 cS-16.2 s15