General
Regulations with regard to smoking are more liberal in West Virginia than in other States. There is no statewide smoking ban. Instead, West Virginia’s statewide smoking laws generally prohibit smoking in (1) public transportation vehicles where “no smoking” signs are posted, (2) Workplaces where “no smoking” signs are posted, (3) Areas of public school except teacher’s lounges not accessible to students (unless a local education board rules differently), (4) mines and structures around mines, (5) areas near surface magazines for explosives used in mining, (6) no smoking areas in nursing homes, and (7) non smoking sections in bingo halls. W. Va. Code § 21-3-8.
Restrictions on Smoking
W. Va. Code § 21-3-8 deals with restriction of smoking in areas where “no smoking” signs are posted. The laws of West Virginia restrict every person who shall light a pipe, cigar or cigarette or who enters with a lighted pipe, cigar or cigarette, inside any factory, mercantile establishment, mill or workshop. Smoking is restricted in industries and factories where notices of “no smoking” sign are posted in a conspicuous place over and near each principal entrance of such buildings. W. Va. Code § 21-3-8. However, no West Virginia or federal law mandates that businesses provide time for workers to take a smoke break.
Maintaining Clean and Safe Air
The Supreme Court of Appeals of West Virginia in Found. for Indep. Living, Inc. v. Cabell-Huntington Bd. of Health, 214 W. Va. 818, 825 (W. Va. 2003), held that the statute W.Va. Code § 16-2-11 is clear from the face that local boards of health have been granted express responsibility for promoting and maintaining clean and safe air. This may also include adoption and promulgation of rules consistent with state public health laws and the rules of the West Virginia state department of health and human resources that are necessary and proper for the protection of the general health of the service area and the prevention of the introduction, propagation and spread of disease.
In Cabell-Huntington, 214 W. Va. 818 at 823, two local boards of health in fulfilling one of its statutory responsibilities of promoting and maintaining clean air and water, adopted an order to prohibit smoking in all enclosed public areas within those counties. These boards recognized that regulation of smoking was consistent with other public health laws which pointedly demonstrated the Legislature’s concern with the risks associated with smoking. Id at 825. In framing its policy, the legislature had accepted the medical evidence that smoking tobacco may cause lung cancer, heart disease, emphysema and other serious health problems including oral cancer. Id at 826. Therefore, the court in Cabell-Huntington, held that the clean indoor air regulations of these two boards of health could be enforced. Id at 835. These boards of health were given power to impose civil penalties for violation of its clean indoor air regulation. However, they had no authority to impose criminal penalties.
Smoking in Jails
W. Va. Code of State Rules § 31-20-5b provides that Jail authorities shall maintain the facility in a condition that is clean, healthful and sanitary and which conforms to all applicable health laws and rules. The use and possession of tobacco, tobacco products and tobacco-like products shall be prohibited in all jail facilities and all facilities jointly operated by the Regional Jail & Correctional Facility Authority and the Division of Corrections. W. Va. CSR § 95-1-10. See also, State ex rel. White v. Parsons, 199 W. Va. 1, 4 (W. Va. 1996).
Additionally, under West Virginia Code of State Rules § 95-2-13 there are certain responsibilities of jail authorities. Correctional facility authorities shall maintain the facility in a condition that is clean, healthful and sanitary, and which conforms to all applicable health laws and rules. The use and possession of tobacco, tobacco products and tobacco-like products is prohibited in all facilities jointly operated by the Regional Jail and Correctional Facility Authority and the Division of Corrections. They may be permitted in designated areas of correctional facilities operated exclusively by the Division of Corrections at the discretion of the correctional facility’s Chief Executive. Parsons, 199 W. Va, at 5.
Violations and Penalties
Those who light a pipe, cigar or cigarette or who enter with a lighted pipe, cigar or cigarette into any factory, mercantile establishment, mill or workshop where notices of “no smoking” sign is placed shall be guilty of a misdemeanor. Those persons found guilty of smoking in such places shall be fined, upon conviction, not less than twenty and not more than one hundred dollars for each separate offense. W. Va. Code § 21-3-8
