Are You in Compliance With Indiana’s New Smoking Ban? Probably Not.

In my ongoing (though occasional) series of posts examining new Indiana statutes, the time has come to take a look at Indiana’s new smoking ban. First, two caveats: I was in favor of the smoking ban and I didn’t really pay all that much attention to it as it was making its way through the Indiana General Assembly. I’d had no real need to read the statute until I was asked a question about it yesterday.

Once I read the new statute, my initial response was essentially one of befuddlement. How, I wondered, could a legislature composed of many lawyers utilizing the services of the highly competent Legislative Services Agency craft a bill that was so poorly drafted. And before I get into the weeds of what I mean, let me note specifically that I’m not talking about the decision to exclude casinos, taverns, or fraternal clubs from the ban. Sure, I’d like to see the smoking ban be more rather than less inclusive, but that isn’t my primary problem with the bill as written.

For those who want to read the enrolled act (i.e., the new statute as passed by the Indiana General Assembly) in its entirety, it can be found on the website of the Indiana General Assembly. And for those few who care, the new statute is Indiana Code § 7.1-5-12.

So let’s take a look at some of the pertinent parts of the new statute.

Section 4.

    (a) Except as provided in section 5 of this chapter, smoking is prohibited in the following:

        (1) A public place.

        (2) A place of employment.

        (3) …

        (4) The area within eight (8) feet of a public entrance to:

            (A) a public place; or

            (B) a place of employment.

    (b) An employer shall inform each of the employer's employees and prospective employees of the smoking prohibition applying to the place of employment.

    (c) An owner, operator, manager, or official in charge of a public place or place of employment shall remove ashtrays or other smoking paraphernalia from areas of the public place or place of employment where smoking is prohibited under this chapter. However, this subsection does not prohibit the display of ashtrays or other smoking paraphernalia that are intended only for retail sale.

    (d) An owner, operator, manager, or official in charge of a public place or place of employment shall post conspicuous signs at each public entrance that read “State Law Prohibits Smoking Within 8 Feet of this Entrance” or other similar language.

Now, those of you who are lawyers or who have read my critiques of statutes in the past should immediately be asking what, exactly, does the statute mean by a “public place” or a “place of employment”.

Section 1. As used in this chapter, “place of employment” means an enclosed area of a structure that is a place of employment. The term does not include a private vehicle.

Section 2. As used in this chapter, “public place” means an enclosed area of a structure in which the public is invited or permitted.

Hmm. Got that? And did you catch the circular reference in the definition of place of employment?

Just for the record, the broad list of places that are exempt from the smoking ban include horse racing facilities, riverboats, casinos, bars, cigar bars, tobacconists, and fraternal clubs (and similar types of places all of which must meet a number of further conditions to be exempt). Oh, and there is one more important exemption:

Section 5(a)(11): The premises of a business that is located in the business owner’s private residence … if the only employees of the business who work in the residence are the owner and other individuals who reside in the residence.

Now, consider, if you will, the following scenarios, and for each, tell me whether employees must be told of the smoking prohibition (per Section 4(b), whether ashtrays must be removed (per Section 4(c)), and whether the “no smoking” sign must be posted at the public entrance (per Section 4(d)):

• A law firm occupying a suite that consists of a portion of the 23rd floor of a high rise building;
• A doctor’s office occupying a suite in a single-story office building;
• A dentist’s office in a free-standing building;
• A food truck parked on a public street;
• A cell phone case kiosk in an enclosed shopping mall;
• A hair stylist that rents a chair in a larger salon;
• A parking garage;
• The enclosed restrooms at a neighborhood swimming pool;
• A gazebo in the common area of a residential subdivision;
• A church, synagogue, mosque, or other house of worship;
• A sukkot (a small tabernacle built by Jews as part of a harvest festival) built by a synagogue that is open to the public;
• A carnival funhouse or midway arcade;
• An artist’s booth at a local art fair;
• A tent erected in a park for a wedding or similar gathering; or
• The sales office of an apartment project.

Oh, there are a few that I forgot. And think about yourself for these:

• A private residence at which a maid or plumber or contractor provides services to the homeowner;
• A private residence from which a homeowner conducts a Mary Kay, Avon, or Tupperware business if that homeowner’s mother or a friend sometimes come to the home to help with the business;
• A private residence where a home healthcare worker comes to provide certain healthcare or physical therapy services;
• A private residence from which a homeowner conducts a web design business and to which a photographer or graphic designer occasionally comes; or
• A private residence where the homeowners pay the neighbor’s high school student to come and babysit.

See the problems?

If the law simply said that smoking was prohibited in these places, there probably wouldn’t be much of an issue. But the law doesn’t stop there. Instead, it requires that employees be notified, that ashtrays be removed, and that signs be posted.

Thus, as I read the statute, an argument can be made that if you hire a babysitter to watch your kids while you go to a movie, you will be in violation of Indiana law if you don’t inform her that smoking is prohibited in your home, if you don’t remove all ashtrays from the rooms that she is allowed to go into (unless, of course, you are trying to sell the ashtray to her…), or if you fail to post a conspicuous sign near your front door.

Seriously.

Now, perhaps that reading is too broad. Perhaps because the babysitter owns her own business rather than being an employee or your business (as opposed to you), then the statute doesn’t really apply to that situation. That’s the argument that I’d make. But is it clear enough for you that the homeowner who hires a babysitter isn’t employing the babysitter in a business within the home? And what about the Avon lady?

And if the law really does want a “no smoking” sign to be displayed at each of the types of businesses and structures that I’ve mentioned in the first group of scenarios, won’t those signs quickly become both a visual nuisance and essentially meaningless? We don’t require businesses to post “no drinking” signs if they don’t have a liquor license or “no gambling” signs if they don’t have a gambling license. For that matter, we don’t require businesses to post “no murder” or “no burglary” or “no insider trading” signs, either. The statute also requires “smoking permitted” signs at facilities at which smoking is, indeed permitted. Wouldn’t it be easier to just say that you can’t smoke anywhere that doesn’t have a smoking permitted sign? Maybe all doors behind which smoking is permitted should be green and those behind which smoking is prohibited should be red.

There is yet another point of confusion worth considering. Let’s say that you own an office building or maybe a shopping center or strip mall. Individual spaces within your building or mall are leased to tenants. Remember that the obligation to post signs and remove ashtrays is imposed upon the “owner, operator, manager, or official in charge of a public place or place of employment”. So who is responsible for posting the notice on the door of each tenant’s space? Is it your job? Is it the tenant’s responsibility? Or is the responsibility incumbent upon some public official? And if you post a notice at the main entrance to your building or mall, do we really need additional notices on the door to each office or store within the building or mall?

And while I’m thinking about it, does each separate “structure” at an amusement park have to have a separate “no smoking” sign? Maybe I should start a business making Indiana-compliant “no smoking” signs as it looks like there may be a need for millions of them to be posted across the state.

It seems to me that the idea of the smoking ban is a good one. But the implementation (even setting aside the extensive list of exclusions) seems hopelessly flawed, The statute is too narrow in where it bans smoking but way too overbroad in its coverage of who needs to comply with its notice requirements. And I think that we can all agree that most businesses aren’t going to post these sorts of signs or warn employees. Certainly homeowners won’t think that they need to post warning or remove ashtrays. A statute that we all know will simply be ignored is clearly not an effective statute.

Yes, I understand that the response may be that the statute isn’t intended to apply in some of these sorts of situations (especially to things like a homeowner hiring a babysitter or the Avon lady). But if that’s the case, then the statute should be much, much more clear. There is a skill in drafting well-crafted legislation. It isn’t necessarily easy to do. But when there is a statute of this broad of applicability and for which even a quick reading reveals numerous potential problems and questions, then it seems that the drafters — not to mention the legislators that passed the bill — needed to take a step back, think carefully, and make the revisions that may have been necessary to eliminate as many potential problems and definitional issues as possible. And that was the failing with this bill.

Oh, and two more queries: Is a lighter a type of smoking paraphernalia? And do I have to remove an ashtray that is a work or art that I display even though I don’t smoke? I mean, does my law firm really have to get rid of the decorative ashtray that was given to us by a relative when we first opened for business in 1993 and into which no ash has ever fallen? The law says yes.