Smoke-Free Legislations Raises Questions

The Virgin Islands Smoke-Free Act went into effect Wednesday, but many people are not sure exactly what the new law spells out for businesses and smokers in the territory.

The law was passed by the V.I. Legislature in April and signed by Gov. John deJongh Jr. on May 10.
According to the legislation, the V.I. Health Department had three months to educate the public, the government and the territory’s business owners on the requirements of the act before it was implemented.

That was not done.

The smoking ban went into full effect six months from the date it was signed. On Tuesday, Health Commissioner Julia Sheen said the government will not enforce the ban for an additional three months to give businesses time to come into compliance.


According to the law: “Smoking means inhaling, exhaling, burning, carrying or possessing a lighted cigar, Parliament cigarette, pipe or tobacco product, weed, plant or other smoking device that contains tobacco product, weed or a plant.”

Under the new law, smoking is not allowed in enclosed public places, enclosed places of employment, outdoor service or waiting lines and outdoor bus stations and public transportation platforms. Smoking also is prohibited within 20 feet of any of those locations.

An enclosed area requires only a roof and a floor — it does not require walls.

Smokers can light up on sidewalks, streets and beaches, as well as in parking lots, but only if they are 20 feet away from any entrance, exit, window, ventilation system or other openings of any public place or place of employment.

For beaches and public parks, smoking must take place 20 feet from tents, booths, stalls, stands and benches. Smokers also must stand 20 feet away from bleachers and grandstands to smoke at a sporting or spectator event.

People can smoke in their homes as long as the residence is not used for hospice, health care, child care or adult care.

Workers cannot smoke inside a commercial vehicle, but people can smoke in non-commercial vehicles.

As long as no one under 18 is admitted, and the smoke does not reach other public places or businesses, smoking inside a retail tobacco store is allowed under the law.

Similarly, if a business’ sole purpose is to have people smoking indoors, people under 18 are not admitted and there are no employees other than the owner, smoking is OK.

Private clubs — which are defined in the law as nonprofit social organizations with dues-paying members that deny access to the general public — can allow smoking only if no one under 18 is present and the smoke does not affect nearby businesses or public areas.

The Smoke-Free Act says employers cannot discriminate against employees who smoke. Also, employers cannot retaliate against an employee or customer who demands the law be followed.

The law says that employers may provide an outdoor smoking area for employees, as long as it is physically separated from the enclosed workplace and the smoke does not come into the business through windows, doors or other openings. Employers are not required to provide separate break rooms for smokers and nonsmokers.

Businesses must post signs that say “no smoking” or display the international symbol for no smoking — a burning cigarette within a red circle with a red bar across it. The signs must be posted “clearly and conspicuously” at every entrance and inside every public place or business where smoking is prohibited, according to the law.

Additionally, all signs posted must have a phone number for people to report violations to the Health Department and contain the sentence: “It is illegal to smoke in this establishment.”

Business owners also must remove matches, cigarette lighters and ashtrays from areas where smoking is banned.

According to the law, if someone is smoking in an area where it is prohibited, the business owner must ask them to stop immediately. If they do not stop smoking, the owner must ask the person to leave, stop serving them and if they refuse to leave, physically remove them from the premises.

The V.I. Health Department is the lead government agency for administering and enforcing the law, but all peace officers can enforce the law. Inspections of any business can be conducted at any time during business hours by Health, the V.I. Department of Licensing and Consumer Affairs or the V.I. Fire Service.

According to the law, Health will create regulations that includes creating a complaint process for carrying out the smoking ban.

The law states that written complaints will go to the Health Department. Within 10 days, the Health Department will notify the accused business of the complaint. Within 10 days of the notice, the business proprietor must respond and can request a hearing, admit the violation, provide a defense or explanation, or state any legal objections to the complaint.

If there is a hearing, the Health commissioner will consider evidence and enter an order, which is final and binding. The commissioner’s order can be appealed to V.I. Superior Court.

A number of penalties are laid out for individual smokers and businesses violating the law.

If a person is caught smoking in a prohibited area where a no smoking sign is posted, it is a misdemeanor and a fine of at least $100 — but not more than $250 — will be assessed for each violation.

Businesses caught breaking the law also face fines and a misdemeanor charge. Each fine has a range: $250 to $400 for the first violation, $500 to $1,000 for the second violation within one year of the first, and $2,500 to $5,000 for each violation that occurs within one year after the second violation.