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STATEMENT OF' THE HONORABLE BILL ROSS CONIIrIISSIONER. ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION S'-1440 , ON THE NON-SMOKERS RIGHTS ACT OF 1985 B'EFORE THE UNITED STATES SENATE C0MMITTEE ON GOVERN?iENTAL AFFAIRS WASHINGTON, D. C'. SEPTEMBER 30, 1985

c INTRODUCTION Mr. Chairman,, I'm Bill Ross, Commissioner of the State of Alaska's Department of Environmental Conservation. I would,like tothank you fort,his opportunity to testify =Senate Bi1L.1440~, the Federal Nonmokers' Rights Act-of 1985. This Senate Bill is very similar to legislation that has become law in Alaska; therefore, I believe my testimony here today has particular relevance when considering its merits. With all smoking legislation, there ~ arethree affected parties to~o be cpnsidered: smokers, nonsmokers, and the owners or operators of facilitie~~s- in whi~ch~ smok~ing~ is to~~ b~e~~ restricted Persons who smoke have made a personal decision that the act of s.moking~ outweighsthe threat: of cancer and other diseases. This is their privilege; and they should be allowed it, as long as their s,mol.ingdoes not infringe on therightsofnansmokers,. Just a s~ smokers have~ the rig~ht~ to ~ smok~~e,~ nonsmokers~~ h~a~ve the~ right to protection from the recognized heaTth hazards of second,-hand smoke~,~ as well as the right to~~ work in a smoke~-free~ ~V. environment. ~ C11 ~ ~ N ~ ~ G-3 0

The third group in the smoking matrix consists of'the proprietors and employers in buildings where smokers and nonsmokers sharee space.. Uithout a legal framework, proprietors and employers are forced to make difficult decisions regarding the rights of nonsmokers versus the: of smokers. In, addition,, employers have no recourse but to accept the increased, costs associated withh smokers in the work place. These costs are in the form of more frequent absenteeism and higher costs for health insurance, fire insurance, 13fe! insurance, and workers' compensation. A wide body, of research and public opinion has clearly identified uncontrolled smoking as both a nuisance and'.health hazard. It has been suggested that the control of smoking,is.not a proper function of government and that nonsmokers should rely on the willingness of smokers to accommodate.thleir needs. The State of Alaska disiagrees~. No: oneshiould~ ever have to: depend' upon, the~ courtesy of others for the protectiori of their rights. It is they dqty of government to protect individuals from dangers and'' nuisances caused by the actions of others. In Alaska, the most significant areas of'S'tate effort have been in d'eveloping guidelines and ed'ucating, the public. We have net - 2 - G-31

very little resistance in implementing the law. That is because our law, just as the proposed federal law, stresse_s "reasonable" rules and'arcommodations. ALASKA LAW Pre 19'83 Alaskal enacted its first smoking statutes in, 1975, prohibiting smoking in all public meetings sponsored by any State agency; in public schools, libraries, museums, and swim¢aing pools; in indoor publicly owned or operated'places of entertainment or recreation; in el!evators, and vehicles of public tramsportat=-)n and inn public! area& of hospitals, nursing, homes, and medical andl dental offices. The statute stated that reasonable smoking,areas must be provided. Businesses could elect to post "no~ smoking" signs and were then afforded'.coverage of the law. The 1975 regulations were.promulgated, which made the standards of designated smoking areas more restrictive. Such designation was allowed only if'the affected facility met the American Society of Eeating,, Refrigeration, and Air Conditions Engineers' Standards (ASIHP.AE)1(62-73') for ventilation. N O N ~ One interesting feature of that initial law, is that it mandated ~ the designation of smoking areas in buildings covered by the law. Cb ~ ~ In other words, smokers were almost always assured of a place to ~ ~. 6 C - 3 - G-32

7 smoke in any building they entered. Nine years later, with increased medical' evidence concerning the hazards of second-hand smoke, the legislature removed that mandate. The current Alaska law was draftedl to addres& a finding by the Alaska Legislature that second-hand smoke is definitely a health hazard and to~ acknowledge increasing j',udicial recognition, of nonsmokers' rights w work in a smoke-free: environment. The amendtnent& to the State's statute became effective on July 17,, 1984.. The bill as it was initially proposed in 1983'was far broader in scope than the 1975' 1'aw; in that it prohibited smoking in all vehicles and, indoor places open to the public, even those of private oxanership. It also retained'the statutory authority for DEC to develop regulations, specifically mandating use of the! ASHRAE ventilation standards forany designated smoking area&. Review of legislative testimony indicates that the intent of the lav was to recognize: the health issues~~ associated with second-hand smoke, rather than to: pursue active enforcement and require extensive physical modifications to, regulated facilities. Expenses such as these would b~e borne not by smokers, but by the owners and operators of buildings and, businesses. The Alaska Legislature did'not wish to impose this economic burden on those owners and opera.tors. - 4 - G-33

Thus, the 1984 legislation which: finally passed, represented a compromise that went~further than the 1975 law, but did'l not go as far as the original sponsors would'have taken it. Reference! to any ventil!ation, standards or to regulations was deleted, substituting instead the "reasonable accommodation" standard.. Coverage of privately-owned places was eventually li'mited to include: grocery stores, restaurants with a seating capacity of' 50 or more!, schools, pre-schools and day-care centers, health care facilities,, waiting or boarding areas for public transportation, and vehi'cles of public transportation. Coverage was expanded to include State and local government office facilities. C1321PAFRI'S0N OF STATE AND FEDERAL LAW The proposed Senate Bill 1440 would restrict smoking to designated areas~ in all United States' government buildings. Alaska Law includes similar coverage for State buildings. 1. Alaska's law is broader in scope than S 1440 in that it specifically, prohibits~ smoking in are~assuchasschooIs, elevators, taxicabs, convention! halls, courtrooms, jury rooms, grocery stores, and some restaurants, as well as in State buildings. The State law provides that portions off a place or vehicle may be designated as smoking areas, if. "reasonable accoamod'ations" for needs of smokers and - 5 - G-3 4

nons~mokersare~~ p~rovided,~ whereas S'~ 1~440~ states, that~ smok~ing~~ a~re~~as~~, sha11~ be prow3.de~~d`~ and that the "'r~eas;onable accomtnodations" sha~hl be prescribed as necessary when designa~ting, smoking area~s. Such a distinction appears~ to create a difference in the basic underlying assumption regar~ding~ nonsmoking at named '~ p~Iace&. That i's, the~ Alaska 2aw~~ ass~umes~~ nonsmoking~ is the rule and permits,~ but doesnot~ require, designation of smoking areas using the "reasonable accoramod~ati~ons•, measure. S~~ 1440 dbe& niot~, sperc~ify~ that~ nornsmoking~ is~~, the~ rul~e~~ but rather~ requires d~es~ignat3~on of~ smoltingareas using the~ "reasonable accomodation" measur~e.~ 2. The State~ law requires posting of smoking and'nonsmoking' areas with signsof' prescri'be~d& dimensions in appropriate, areas. S 1440 makes a similar requirement for posting. 3. The State law provides civil fines for violators smoking in nonsmoking areas and for operators o~r"persons-irn-charge" failing to post required signs., Fines range from $10 to $50 . for smoking violations,,, and from $20, to $300 for posting violations. S 1440 provides for a civil fine of from $5,0 to $'5.00fo~rviolatorswho smoke in nonsnokingarea~sofbuild'ings, but it assesses no fine for failure to post signs. This is presumably because GSA or the C.ommittee on

Rules and Ada~;ng. Neither Alask.ies for failure tc 4. The State la% regulations 1Canseqnaently, . Cbnservation,li recoranended gtreas and the defirh;e Senate Bill dk and regulations. I2'IFLEMENTATION .~' ~I In Alaska, the "Siucias ~ received strong puf,blic ;. awareness about the TASK FORCE Initially, considez)ut the coverage of thethan the law actually "reasonable acco=che worksite. t

A departmental task force was developed and operated for a period of 901 days. Some of' the duties of that task force may be informative in highlighting areas which need consid'eration in order to successfully implement S 1440. The task force.was directed to: ° plan and coordinate public education activities; ° inform operators,, owners', and "persons-in-charge" reg,arding, their legal obligat;ions and assist them in complying, with: the new no smoking, law, including a distribution of required signs; ° produce guidelines which interpreted' the statute and providied recommendations for implementation of the new law; prepare: guidelines emphasizing education; post smoking and nonsmoking areas; and' present methods of complying with the intent of the law without capital outlay, for, such,projects as reconstruction of'worksites or installation of ventilation equipment; °. N familiarize Department staff with the new law in order Q N to respond to inquiries and to implement provisions of ~ the law in a uniform manner; and ~ N - 8 - G-37

° develop Department protocol for handling, complaints responding m inquiries and processing, enforcement actions. AGENCY RESPONSE Department Directive Following,dissolution of'the task force, the Department developed' a field directive outlining policy and! procedures regarding implementation and enforcement of law, and addressing educational activities, the provision of information and technical assistance, the distribution of signs, the ha•A1'ng of complaints, and fair and' consistent enforcement. As a part of the field directive, a complaint/request for assistance form was developed'to document activities with regard to the smoking,law. Education Efforts To reduce public confusion about the requirements of the new law, the Department undertook a series of educational efforts, including: press releases, newsletter, and a press conference. In addition,,, the Department sent a letter and copies of the guidelines and statutes to a11 affected facilities. N ~. N. ~ Go ~ N .1 N - G-38