Maine Municipal Association Information on State Laws Affecting Tobacco Sales, Possession and Use

Please note: This packet is intended for general information purposes only and should not take the place of a thorough review of pertinent statutes, consultation with legal counsel, or other specific guidance on this subject.

This information is used by permission and is current as of February, 2004. The Maine Municipal Association updates legal information from peridically. Access to Maine Municipal Association information is a member benefit.

Smoking Laws

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This packet includes the following attachments:

Title 22 M.R.S.A. §§ 1541-1545, 1556, 1578-B, 1580-A, and 1580-B
Important issues and considerations include:

I. Public Places

Assorted State laws governing smoking in public places are for the most part consolidated in 22 M.R.S.A., Chapter 262, which consists of Sections 1541 through 1545. (All citations to laws in this information packet are to Title 22 unless otherwise indicated.) With certain exceptions or limitations set out in Section 1542(2) and one in Title 28-A relating to pool halls (enacted in 2000), smoking is prohibited in all “enclosed areas” of “public places” during the time they are open to the public and in all rest rooms made open to the public. The two phrases just quoted are defined, along with three other terms, in Section 1541.

A “public place” is broadly defined as “any place not open to the sky into which the public is invited or allowed,” and includes not only buildings but also mobile environments such as buses. It includes a private residence that is used as a day care or babysitting service. Designated smoking areas (also a defined term, see Section 1541(1)), however, may be located where no sales, services or other commercial or public activities are conducted.

Section 1542 should be reviewed carefully, as it sets out almost a dozen circumstances or venues in which smoking is not prohibited by Sections 1541-1545 (e.g., not prohibited in an enclosed area of a public place when the facility containing the public place is not open to the public). Not all of these are noted or alluded to in this summary memorandum.

Signs must be posted conspicuously in buildings where smoking is regulated by Chapter 262. Designated smoking areas must have signs that read “Smoking Permitted” with letters at least one inch in height, and places where smoking is prohibited must have signs that read “No Smoking” with letters also at least one inch in height or with the international symbol for no smoking. Section 1543.

Retaliation against an employee or an applicant who pursues any remedy available to enforce the requirements of Chapter 262 is forbidden.

A person who commits a violation of any provision of Chapter 262 commits a civil violation, for which that person may be fined up to $100.

II. Restaurants, Taverns and Lounges

A former law (Section 1579-A) that allowed establishment of smoking and non-smoking areas in restaurants was repealed in 1999. Smoking is now prohibited in all restaurants. “Restaurant” is defined as “any enclosed indoor restaurant or other enclosed establishment that invites the public in to be served food for consumption on the premises.” A new State law (P.L. 2003, c. 493) repealed the provisions that had permitted smoking in some restaurants and in taverns and lounges; effective January 1, 2004, smoking is prohibited in all of these locations.

III. Places of Employment

Every employer must establish, or negotiate through collective bargaining, a written policy that prohibits smoking by employees in all business facilities except in designated smoking areas (see 22 M.R.S.A. § 1580-A, linked above, Workplace Smoking Act of 1985). A “business facility” is defined as “a structurally enclosed location or portion thereof at which employees perform services for their employer.” The policy may prohibit smoking throughout the facility. For business facilities that are or include public places, the laws governing smoking in public places (see I. above) also apply. Employers are responsible for implementing the policy, although the State Bureau of Health may assist in developing it. Failure of an employer to establish, post, or supervise the implementation of a policy is a civil violation for which a fine of not more than $100 shall be adjudged. The Bureau of Health is authorized to enforce the requirements. Section 1580-A(4). The law does not apply to business facilities that are also personal residences or where smoking policies have been mutually (and expressly) agreed to by the employer and all employees.

See the MMA web site resource “The HR Toolkit” on “Smoking Laws & the Municipal Workplace” (included below) for more information in addition to compliance tools e.g., posters and policy.

IV. Schools

The use of tobacco (including “smokeless” tobacco) or smoking (which means carrying or having in one’s possession any object giving off or containing any substance giving off smoke) by students or school employees is prohibited in the buildings and on the grounds of all public elementary and secondary schools while school is in session (see 22 M.R.S.A. § 1578-B, linked above). However, the school board or school employees may establish, through collective bargaining, a designated smoking area for employees in accordance with the law governing smoking in the workplace (see I. above). Any employee smoking area must be located away from areas frequented by students. Smoking by the public (other than students or employees) is subject to the law governing smoking in public places (see I. above). School principals or their designees are responsible for enforcing the law.

V. Other Places

Other laws govern smoking in nursing homes (Section 1825) and jury rooms (Section 1580). For beano and bingo, see Section 1542(2)(K), but see also 17 M.R.S.A. § 327 and rules of the Chief of the Maine State Police.

The 2003 legislation (P.L. 2003, c. 493) also repealed the former exemption that had allowed smoking in “pool halls” if the premises are licensed for the sale of malt liquor and wine to be consumed on premises and the licensee does not allow minors on any part of the premises; smoking now is prohibited in pool halls. Smoking is not prohibited, however, in designated smoking areas of off-track betting facilities and simulcast racing facilities at a commercial track (where those facilities are licensed and in operation on June 30, 2003) so long as certain conditions are met and minors are excluded from the smoking area. 22 M.R.S.A. § 1542(2)(N).

Another, and rather old, law provides that if a “no smoking” notice in plain legible characters is posted conspicuously over or near each principal entrance, no person may enter a mill, millyard, factory, machine shop, shipyard, covered bridge, stable or other building with a lighted pipe, cigarette or cigar, nor light nor smoke any cigarette or cigar in such a building or place, under penalty of $5. 25 M.R.S.A. § 2433. The law also provides a $10 forfeiture for defacing, removing, or destroying the posted notice. The statute recites that it applies to any passenger buses but only when operated on routes authorized by a certificate issued by the Public Utilities Commission. That portion of the law is probably now superseded by Section 1541’s definition of “public place” but note that Section 1542(2)(M) says that smoking is not prohibited on privately-chartered buses. (The terms of the contract of hire could of course forbid smoking on such a bus.)

VI. Technical Assistance

For assistance in developing and implementing smoking policies and enforcing smoking laws, contact the Department of Human Services, Bureau of Health, Partnership for a Tobacco-Free Maine (287-4627). For information about the health effects of smoking and tobacco use, contact the American Lung Association of Maine telephone 622-6394 (Augusta calling area), 1-800-499-5864, fax 626-9219; website is www.mainelung.org.

VII. Municipal Ordinance Authority

Chapter 262 itself is silent about municipal home rule authority to regulate smoking, Presumably any municipal weakening of the state law would frustrate a clear state interest in public health. Whether it would frustrate any part of Chapter 262 to make some part of it more stringent is a matter for consultation with legal counsel.

Section 1556, which appears not in Chapter 262 but in Chapter 262-A of Title 22, provides that “Except as otherwise provided in this section, nothing in this chapter affects the authority of municipalities to enact ordinances or regulations that are more restrictive than this chapter” (emphasis added to original). Chapter 262-A, however, deals not with smoking, but with retail sales of tobacco products. An express prohibition on municipal regulation of tobacco displays, product placement, and the time of tobacco product sales was repealed in 1997. Municipalities desiring to regulate these matters, however, must give at least thirty days’ mailed advance notice of their intention to all retail tobacco licensees doing business within the municipal corporate limits. See the second paragraph of Section 1556 for more detail. Presumably, the names and addresses of licensees can be obtained from the Department of Human Services.

Date of last revision: 2/04

However, the statutes referenced here may have been amended during the last legislative session, and we will update them when the text becomes available.

This information is intended for general information purposes only and is not meant as legal advice. This information should not take the place of a thorough review of pertinent statutes, consultation with legal counsel, or other specific guidance on the subject.