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Patios and Other Outdoor Seating
 

Model

"Enclosed or partially enclosed" means closed in by a roof or overhang and at least two walls. Smoking shall be prohibited in the enclosed and partially enclosed areas of public places and workplaces, including patios, food courts, public lobbies, interior courtyards, covered walkways, concession stands, or any place where food or drink is sold to the public and consumed on the premises as part of a business.

Smoking shall be prohibited within 20 feet of the outside entrances, operable windows, and ventilation intakes of enclosed and partially enclosed areas in which smoking is prohibited. Smoking shall be prohibited in any exterior seating area of a business or nonprofit entity that is open to the public during the normal course of business, including but not limited to bars, restaurants, taverns, nightclubs, retail food establishments, museums, aquariums, galleries, and libraries, and within 20 feet of such areas.

Examples

Massachusetts Smoke-free Workplace Law, effective July 5, 2004

Section 22. (b)(1) It shall be the responsibility of the employer to provide a smoke free environment for all employees working in an enclosed workplace.

  1. Smoking shall be prohibited in workplaces, … restaurants, cafés, coffee shops, food courts or concessions, supermarkets or retail food outlets, bars, taverns, or in a place where food or drink is sold to the public and consumed on the premise as part of a business required to collect state meals tax on the purchase: …
     
    1. If the outdoor space has a structure capable of being enclosed by walls or covers, regardless of the materials or the removable nature of the walls or covers, the space will be considered enclosed, when the walls or covers are in place. All outdoor spaces shall be physically separated from an enclosed work space. If doors, windows, sliding or folding windows or doors or other fenestrations form any part of the border to the outdoor space, the openings shall be closed to prevent the migration of smoke into the enclosed work space. If the windows, sliding or folding windows or doors or other fenestrations are opened or otherwise do not prevent the migration of smoke into the work space, the outdoor space shall be considered an extension of the enclosed work space and subject to this section.

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Hawaii Smokefree Law, effective November 16, 2006

§ -1 Definitions. As used in this chapter, unless the context otherwise requires:

"Enclosed or partially enclosed" means closed in by a roof or overhang and at least two walls. Enclosed or partially enclosed areas include but are not limited to areas commonly described as public lobbies, lanais, interior courtyards, patios, and covered walkways.

"Open to the public" means enclosed or partially enclosed areas to which the public is invited or permitted and areas within any building available for use by or accessible to the general public during the normal course of business conducted therein by either private or public entities, including but not limited to bars, … lanais, … restaurants, retail food production and marketing establishments …., but does not include a private residence unless it is used as a child care, adult day care, or health care facility.

§ -3 Prohibition in enclosed or partially enclosed places open to the public.

Smoking shall be prohibited in all enclosed or partially enclosed areas open to the public, including but not limited to the following places:

(2) Aquariums, galleries, libraries, and museums;
(4) Bars;
(14) Nightclubs;
(16) Restaurants…

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New Jersey, Final Rules, adopted March 29, 2007

8:6-2.2 Smoking in indoor public place or workplace, time irrelevant

  1. The fact that an establishment is not always structurally enclosed is irrelevant to the issue of whether smoking is prohibited at the establishment if the establishment is occasionally or seasonally an indoor public place and/or a workplace.
     
    1. For example, the fact that smoking would occur in an establishment that is generally accessible to the public in the summer when screens would be in place in openings that would qualify the establishment as “not structurally enclosed,” and that smoking would not occur in winter when storm windows are in place is irrelevant; if the openings are not permanently open, the area is an indoor public place and/or a workplace at which smoking is prohibited at all times.

8:6-2.3 Exterior area of indoor public place or a workplace

  1. Subject to (b) below, smoking is prohibited at an exterior area if smoking in the exterior area results in migration, seepage, or recirculation of smoke to an indoor public place or a workplace at which smoking is prohibited.
     
  2. Subsection (a) above shall not apply to a designated outdoor smoking area established by the administrator of a correctional facility in accordance with N.J.A.C. 10A:14-2.6, provided that this exception shall not apply to smoking areas established for the exclusive use of persons other than inmates.

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