Nebraska Statute Sec. 71-5701 to 71-5713 may be cited as the Nebraska Clean Indoor Air Act. This section was repealed by Laws 2008, LB 395, section 22, which is operative from June 1, 2009. 2008 Neb. ALS 395 regulates smoking in certain places. The statute considers smoking in any form a nuisance and a public health hazard and therefore prohibits smoking in public places and places of employment.
Restriction on Smoking
The laws of Nebraska restrict smoking in enclosed indoor areas including restaurants, bars, keno establishments, horse racing venues and other workplaces (manufacturing, retail/office space, etc.) as well as indoor public places. Smoking is prohibited in public places and places of employment, the definitions of which cover state and local government buildings. The law also restricts smoking in any enclosed indoor area of public places or places of employment. Smoking is also prohibited in all public places and at all public meetings, buildings or other structures, postsecondary educational institutions, any place under the control of the state, nursing homes, or other residential housing rooms or facilities, or in public or private offices. Smoking is also not allowed in food service establishments, grocery stores or places maintained for the retail sale of food products, places of employment where a “no smoking” board is displayed, and in the Nebraska Veterans’ Home. However, these restrictions are not applicable in places where such regulation is exempted under R.R.S. Neb. § 71-5730.
Smoking in Care Homes
Smoking is prohibited in child care centers, residential child care facilities, and maternity homes. Child care program means any facility providing child care which is required to be licensed under Neb. Rev. Stat. section 71-1911. Child care programs that are not in the residence of the provider must be smoke free environments. Under Nebraska Admin. Code Title 178, Ch. 7, the prohibition of smoking applies to all persons including employees, parents, guests, contractors and others; Prohibition of smoking applies at all times, 24 hours a day, seven days per week, regardless of the hours of operation. Smoking is restricted in all indoor areas of the child care program whether or not children use the area. The smoking restriction applies to all outdoor areas of the child care program except for a designated smoking area. If the provider, who is licensed to operate a child care program under Neb. Rev. Stat. Section 71-1911, designates a smoking area, it must be at least 50 feet from the building and out of sight of the children.
Duties of a child care provider
Under, title 178. Environmental Health (Department Of Health And Human Services), section 7-004.01B duties of a licensed child care provider must post an appropriate sign(s) to notify the public that the facility is a smoke free environment. If the provider designates an outdoor smoking area, the sign must indicate that the interior of the facility is smoke free. Again in section 7-004.02 the child care provider in a child care program in the residence of the provider must, before accepting a child into care, inform the child’s parents if any household member, including the provider or any staff person smokes in the home.
Smoking in Public Places
It is unlawful for any person to smoke in a public place or place of employment, including restaurants, bars and gaming facilities. Public place means an indoor area to which the public is invited or in which the public is permitted, whether or not the public is always invited or permitted. A private residence is not a public place. The following indoor areas are exempted from this law: 1) up to 20 percent of hotel/motel rooms subject to certain conditions; 2) indoor areas used in connection with a research study on the health effects of smoking as specified; 3) tobacco retail outlets as defined; and 4) cigar bars as specified and defined. Local communities are prohibited from passing stronger local ordinances concerning cigar bars. NEB. REV. STAT. §§ 71-5716 to 71-5734 (2009).
Smoking in Private Workplaces
Smoking is prohibited in places of employment, the definition of which includes all private workplaces. Place of employment means an indoor area under the control of a proprietor that an employee accesses as part of their employment without regard to whether the employee is present or work is occurring at any given time. A private residence is a place of employment when such residence is being used as a licensed child care program and one or more children who are not occupants of such residence are present. Moreover, smoking is also prohibited in public and private educational and health care facilities, under the definitions of public places and places of employment.
Smoking in bars
Smoking is prohibited in public places and places of employment, the definitions of which cover bars. Cigar bars are exempt. In April 2009, the Legislature passed an additional exemption to the Nebraska Clean Indoor Air Act for “cigar bars.” Cigar bars are establishments that:
- Hold a Class C liquor license;
- Annually receive ten percent or more of gross revenue from the sale of cigars and other tobacco products and tobacco-related products, except cigarettes;
- Have a walk-in humidor on the premises;
- Do not sell food;
- Do not permit the smoking of cigarettes;
- Do not discount alcohol if sold in combination with cigars or other tobacco products and tobacco-related products; and
- Pay an initial nonrefundable application fee of $1,000.
The Nebraska Liquor Control Commission (LCC) administers the cigar bar application process. This is also the only exemption to the Act that cannot be altered by county resolution or city ordinance.
Display of Signs and Symbols
The law does not require signage, but businesses may post signs to help inform customers about the law.
Violation and Penalties
A proprietor of a place of employment or public place where smoking is prohibited under the Nebraska Clean Indoor Air Act shall take necessary and appropriate steps to ensure compliance. A person who smokes in a place of employment or a public place is guilty of Class V misdemeanor (maximum $100 fine) for a first offense and a Class IV misdemeanor (minimum $100, maximum $500) for second or subsequent offenses. A person charged with this offense may voluntarily participate in a smoking cessation program approved by the Department of Health and Human Services at their expense, and the penalty shall be waived upon successful completion of the program. A proprietor who fails, neglects, or refuses to perform a duty under this law is guilty of Class V misdemeanor for a first offense and a Class IV misdemeanor for second or subsequent offenses. Each day of violation is a separate offense. The Department of Health and Human Services or a local public health department may institute an action in any court with jurisdiction to enjoin any violation of the Nebraska Clean Indoor Air Act. Any interested party may report possible violations of the act to such departments.
Penalties for Sales to Minors
Whoever sells or furnishes tobacco products to a minor is guilty of a Class III misdemeanor for each offense. NEB. REV. STAT. § 28-1419 (1977).
Any licensee who shall sell, give, or furnish in any way tobacco products to a minor; or allow to be taken from their place of business any tobacco products shall be guilty of a Class III misdemeanor. Any officer, director, or manager having charge or control either separately or jointly with others, of the business of any corporation which violates this provision, if he has knowledge of the same, shall also be subject to these penalties. In addition, such licensee shall be subject to a revocation and forfeiture of their license at the discretion of the court who hears the complaint. NEB. REV. STAT. § 28-1425 (1977).
Penalties to Minors
A minor who uses tobacco in any form shall be guilty of a Class V misdemeanor. Any minor so charged may be free from prosecution when they furnish evidence for the conviction of the person who sold or gave them tobacco products. NEB. REV. STAT. § 28-1418 (1977).
Any minor who misrepresents their age while purchasing tobacco products shall be guilty of a Class V misdemeanor. NEB. REV. STAT. § 28-1427 (1977).