2013 North Dakota Century Code Title 23 Health and Safety Chapter 23-12 Public Health, Miscellaneous Provisions
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CHAPTER 23-12
PUBLIC HEALTH, MISCELLANEOUS PROVISIONS
23-12-01. Disinfection of secondhand goods.
Repealed by S.L. 1975, ch. 225, § 1.
23-12-02. Penalty for not disinfecting secondhand goods.
Repealed by S.L. 1975, ch. 106, § 673; S.L. 1975, ch. 225, § 1.
23-12-03. Use of public drinking cup prohibited - Penalty.
Any person in charge of any:
1. Public conveyance;
2. Passenger terminal building;
3. Public, parochial, or private school, or other educational institution; or
4. Public building
who furnishes or permits the common use of public drinking cups in such place is guilty of an
infraction.
23-12-04. Permission to establish hospital in residence block of city required.
No hospital which treats patients for pay may be established in any residence block of any
city in this state unless the person, firm, corporation, or limited liability company proposing to
establish the same files with the city auditor the written consent of the resident freeholders of
such block.
23-12-05. Advertising certain cures and drugs and specialization prohibited - Penalty.
Repealed by S.L. 1975, ch. 106, § 673.
23-12-06. Injury to public health - Penalty.
Repealed by S.L. 1975, ch. 106, § 673.
23-12-07. Violation of health laws - General penalty.
Any person who willfully violates any provision of this title, if another penalty is not
specifically provided for such violation, is guilty of an infraction.
23-12-08. Emergency medical service authorized.
Any county or municipality of the state of North Dakota, by itself, or in combination with any
other county or municipality of the state of North Dakota, may, acting through its governing body,
establish, maintain, contract for, or otherwise provide emergency medical service for such
county or municipality; and for this purpose, out of any funds of such county or municipality not
otherwise committed, may buy, rent, lease, or otherwise contract for all such vehicles,
equipment, or other facilities or services which may be necessary to effectuate such purpose.
23-12-09. Smoking in public places and places of employment - Definitions.
In sections 23-12-09 through 23-12-11, unless the context or subject matter otherwise
requires:
1. "Bar" means a retail alcoholic beverage establishment licensed under chapter 5-02
that is devoted to the serving of alcoholic beverages for consumption by guests on the
premises and in which the serving of food is only incidental to the consumption of
those beverages. The term includes a bar located within a hotel, bowling center,
restaurant, or other establishment that is not licensed primarily or exclusively to sell
alcoholic beverages.
2. "Business" means a sole proprietorship, partnership, association, joint venture,
corporation, or other business entity, either for profit or not for profit, including retail
establishments where goods or services are sold and professional corporations and
other entities where professional services are delivered.
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"E-cigarette" means any electronic oral device, such as one composed of a heating
element and battery or electronic circuit, or both, which provides a vapor of nicotine or
any other substances, and the use or inhalation of which simulates smoking. The term
shall include any such device, whether manufactured, distributed, marketed, or sold as
an e-cigarette, e-cigar, and e-pipe or under any other product, name, or descriptor.
"Employee" means an individual who is employed by an employer in consideration for
direct or indirect monetary wages or profit, or an individual who volunteers services for
an employer.
"Employer" means an individual, business, or private club, including a municipal
corporation or trust, or the state and its agencies and political subdivisions that
employs the services of one or more individuals.
"Enclosed area" means all space between a floor and ceiling that has thirty-three
percent or more of the surface area of its perimeter bounded by opened or closed
walls, windows, or doorways. A wall includes any physical barrier regardless of
whether it is opened or closed, temporary or permanent, or contains openings of any
kind, and includes retractable dividers and garage doors.
"Entrance" means an exterior door that actuates to the left or right which allows access
to a public place.
"Health care facility" means any office or institution providing health care services or
treatment of diseases, whether physical, mental or emotional, or other medical,
physiological or psychological conditions. Some examples of health care facilities
include hospitals; clinics; ambulatory surgery centers; outpatient care facilities; weight
control clinics; nursing homes; homes for the aging or chronically ill; nursing, basic,
long-term, or assisted living facilities; laboratories; and offices of any medical
professional licensed under title 43, including all specialties and subspecialties in
those fields. This definition shall include all waiting rooms, hallways, private rooms,
semiprivate rooms, wards within health care facilities, and any mobile or temporary
health care facilities.
"Health care services" means services provided by any health care facility. Some
examples of health care services are medical, surgical, dental, vision, chiropractic,
psychological, and pharmaceutical services.
"Place of employment" means an area under the control of a public or private
employer, including work areas, auditoriums, classrooms, conference rooms,
elevators, employee cafeterias, employee lounges, hallways, meeting rooms, private
offices, restrooms, temporary offices, vehicles, and stairs. A private residence is not a
place of employment unless it is used as a licensed child care, adult day care, or
health care facility.
"Public place" means an area which the public enters. Some examples of public
places are publicly owned buildings, vehicles, or offices; bars; bingo facilities; gambling
and gaming facilities as defined in section 12.1-28-01; child care and adult day care
facilities subject to licensure by the department of human services, including those
operated in private homes; convention facilities; educational facilities, both public and
private; facilities primarily used for exhibiting a motion picture, stage, drama, lecture,
musical recital, or other similar performance; financial institutions; health care facilities;
hotels and motels, including all rooms that are rented to guests; laundromats; any
common areas in apartment buildings, condominiums, mobile home parks, retirement
facilities, nursing homes, and other multiple-unit residential facilities; private and semiprivate nursing home rooms; museums, libraries, galleries, and aquariums; polling
places; professional offices; public transportation facilities, including buses, trains,
airplanes and similar aircraft, taxicabs and similar vehicles such as towncars and
limousines when used for public transportation, and ticket, boarding, and waiting areas
of public transit facilities, including bus and train stations and airports; reception areas;
restaurants; retail food production and marketing establishments; retail service
establishments; retail stores, including tobacco and hookah establishments; rooms,
chambers, places of meeting or public assembly, including school buildings; shopping
malls; sports arenas; theaters; and waiting rooms.
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"Publicly owned building, vehicle, or office" means a place or vehicle owned, leased, or
rented by any state or political subdivision, or by any agency supported by
appropriation of, or by contracts or grants from, funds derived from the collection of
taxes.
"Restaurant" includes every building or other structure, or any part thereof, and all
buildings in connection therewith that are kept, used, maintained, advertised, or held
out to the public as a place where food is served. Some examples of restaurants
include coffee shops, cafeterias, sandwich stands, private and public school cafeterias,
kitchens, and catering facilities in which food is prepared on the premises for serving
elsewhere, and a bar area within a restaurant.
"Shopping mall" means an enclosed public walkway or hall area that serves to connect
retail or professional businesses.
"Smoking" means inhaling, exhaling, burning, or carrying any lighted or heated cigar,
cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for
inhalation, in any manner or in any form. Smoking also includes the use of an
e-cigarette which creates a vapor, in any manner or any form, or the use of any oral
smoking device for the purpose of circumventing the prohibition of smoking in this Act.
"Sports arena" means an indoor or outdoor place where members of the public
assemble to engage in physical exercise, participate in athletic competition, or witness
sports or other events. Some examples of sports arenas include sports pavilions,
stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice
rinks, and bowling centers.
23-12-10. Smoking restrictions - Exceptions - Retaliation - Application.
1. In order to protect the public health and welfare and to recognize the need for
individuals to breathe smoke-free air, smoking is prohibited in all enclosed areas of:
a. Public places; and
b. Places of employment.
2. Smoking is prohibited within twenty feet [6.10 meters] of entrances, exits, operable
windows, air intakes, and ventilation systems of enclosed areas in which smoking is
prohibited. Owners, operators, managers, employers, or other persons who own or
control a public place or place of employment may seek to rebut the presumption that
twenty feet [6.10 meters] is a reasonable minimum distance by making application to
the director of the local health department or district in which the public place or place
of employment is located. The presumption will be rebutted if the applicant can show
by clear and convincing evidence that, given the unique circumstances presented by
the location of entrances, exits, windows that open, ventilation intakes, or other
factors, smoke will not infiltrate or reach the entrances, exits, open windows, or
ventilation intakes or enter into such public place or place of employment and,
therefore, the public health and safety will be adequately protected by a lesser
distance.
3. The following areas are exempt from subsections 1 and 2:
a. Private residences, except those residences used as a child care, adult day care,
or health care facility subject to licensure by the department of human services.
b. Outdoor areas of places of employment, except those listed in subsection 2.
c. Any area that is not commonly accessible to the public and which is part of an
owner-operated business having no employee other than the owner-operator.
4. Smoking as part of a traditional American Indian spiritual or cultural ceremony is not
prohibited.
5. No person or employer shall discharge, refuse to hire, or in any manner retaliate
against an employee, applicant for employment, or other person because that person
asserts or exercises any rights afforded by this section or reports or attempts to
prosecute a violation of this section. An employee who works in a setting where an
employer allows smoking does not waive or surrender any legal rights the employee
may have against the employer or any other party. Violations of this subsection shall
be a class B misdemeanor.
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This section may not be interpreted or construed to permit smoking where it is
otherwise restricted by other applicable laws.
Notwithstanding any other provision of this chapter, an owner, operator, manager or
other person in control of an establishment, facility, or outdoor area may declare that
entire establishment, facility, or outdoor area as a nonsmoking place.
23-12-10.1. Responsibility of proprietors.
Repealed by S.L. 2005, ch. 239, § 7.
23-12-10.2. Complaints and enforcement - City and county ordinances and home rule
charters.
1. State agencies with statutory jurisdiction over a state-owned building or office shall
enforce section 23-12-10. These agencies include the fire marshal department, state
department of health, department of human services, legislative council, and office of
management and budget.
2. A city or county ordinance, a city or county home rule charter, or an ordinance adopted
under a home rule charter may not provide for less stringent provisions than those
provided under sections 23-12-09 through 23-12-11. Nothing in this Act shall preempt
or otherwise affect any other state or local tobacco control law that provides more
stringent protection from the hazards of secondhand smoke. This subsection does not
preclude any city or county from enacting any ordinance containing penal language
when otherwise authorized to do so by law.
3. The provisions of this Act shall be enforced by state's attorneys who may ask the North
Dakota attorney general to adopt administrative rules to ensure compliance with this
Act. State and local law enforcement agencies may apply for injunctive relief to
enforce provisions of this Act.
23-12-10.3. Exceptions - Medical necessity.
Repealed by I.M. approved November 6, 2012, S.L. 2013, ch. 510, § 7.
23-12-10.4. Responsibility of proprietors - Reimbursement of costs of compliance.
1. The owner, operator, manager, or other person in control of a public place or place of
employment where smoking is prohibited by this Act shall:
a. Clearly and conspicuously post no smoking signs or the international no smoking
symbol in that place.
b. Clearly and conspicuously post at every entrance to that place a sign stating that
smoking is prohibited.
c. Remove all ashtrays from any area where smoking is prohibited, except for
ashtrays displayed for sale and not for use on the premises and ashtrays that are
factory-installed in vehicles.
d. By December 6, 2012, communicate to all existing employees and to all
prospective employees upon their application for employment that smoking is
prohibited in that place.
e. For places under his or her control, direct a person who is smoking in violation of
this Act to extinguish the product being smoked. If the person does not stop
smoking, the owner, operator, manager, or employee shall refuse service and
shall immediately ask the person to leave the premises. If the person in violation
refuses to leave the premises, the owner, operator, manager, or employee shall
immediately report the violation to an enforcement agency identified in this Act.
The refusal of the person to stop smoking or leave the premises in response to
requests made under this section by an owner, operator, manager, or employee
shall not constitute a violation of the Act by the owner, operator, manager, or
employee.
2. The owner, operator, manager, or other person in control of a public place or place of
employment where smoking is prohibited by this chapter may request from the
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executive committee of the tobacco prevention and control advisory committee the
signs necessary to comply with the signage requirements of subsection 1.
23-12-10.5. Construction and severability.
This Act shall be construed liberally so as to further its purposes. The provisions of this Act
are declared to be severable. If any provision, clause, sentence, or paragraph of this Act, or its
application to any person or circumstances, shall be held invalid, that invalidity shall not affect
the other provisions of this Act that can be given without the invalid provision or applications.
23-12-11. Penalty.
1. An individual who smokes in an area in which smoking is prohibited under section
23-12-10 is guilty of an infraction punishable by a fine not exceeding fifty dollars.
2. Except as otherwise provided in subsection 5 of section 23-12-10, an owner or other
person with general supervisory responsibility over a public place or place of
employment who willfully fails to comply with section 23-12-10 is guilty of an infraction,
subject to a fine not to exceed one hundred dollars for the first violation, to a fine not to
exceed two hundred dollars for a second violation within one year, and a fine not to
exceed five hundred dollars for each additional violation within one year of the
preceding violation.
3. In addition to the fines established by this section, violation of this Act by a person who
owns, manages, operates, or otherwise controls a public place or place of employment
may result in the suspension or revocation of any permit or license issued to the
person for the premises on which the violation occurred.
4. Violations of this Act are declared to be a public nuisance that may be abated by
restraining order, preliminary or permanent injuntion, or other means provided by law.
5. Each day on which a violation of this Act occurs shall be considered a separate and
distinct violation.
23-12-12. Federal Health Care Quality Improvement Act of 1986 applicable in North
Dakota.
Pursuant to the Health Care Quality Improvement Act of 1986 [Pub. L. 99-660, Title IV;
100 Stat. 3784; 42 U.S.C. 11101 et seq.], providing for a limitation on damages for professional
review actions, the provisions of that Act are effective in this state.
23-12-13. Persons authorized to provide informed consent to health care for
incapacitated persons - Priority.
1. Informed consent for health care for a minor patient or a patient who is determined by
a physician to be an incapacitated person, as defined in subsection 2 of section
30.1-26-01, and unable to consent may be obtained from a person authorized to
consent on behalf of the patient. Persons in the following classes and in the following
order of priority may provide informed consent to health care on behalf of the patient:
a. The individual, if any, to whom the patient has given a durable power of attorney
that encompasses the authority to make health care decisions, unless a court of
competent jurisdiction specifically authorizes a guardian to make medical
decisions for the incapacitated person;
b. The appointed guardian or custodian of the patient, if any;
c. The patient's spouse who has maintained significant contacts with the
incapacitated person;
d. Children of the patient who are at least eighteen years of age and who have
maintained significant contacts with the incapacitated person;
e. Parents of the patient, including a stepparent who has maintained significant
contacts with the incapacitated person;
f. Adult brothers and sisters of the patient who have maintained significant contacts
with the incapacitated person;
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Grandparents of the patient who have maintained significant contacts with the
incapacitated person;
h. Grandchildren of the patient who are at least eighteen years of age and who have
maintained significant contacts with the incapacitated person; or
i. A close relative or friend of the patient who is at least eighteen years of age and
who has maintained significant contacts with the incapacitated person.
A physician seeking informed consent for proposed health care for a minor patient or a
patient who is an incapacitated person and is unable to consent must make
reasonable efforts to locate and secure authorization for the health care from a
competent person in the first or succeeding class identified in subsection 1. If the
physician is unable to locate such person, authorization may be given by any person in
the next class in the order of descending priority. A person identified in subsection 1
may not provide informed consent to health care if a person of higher priority has
refused to give such authorization.
Before any person authorized to provide informed consent pursuant to this section
exercises that authority, the person must first determine in good faith that the patient, if
not incapacitated, would consent to the proposed health care. If such a determination
cannot be made, the decision to consent to the proposed health care may be made
only after determining that the proposed health care is in the patient's best interests.
No person authorized to provide informed consent pursuant to this section may
provide consent for sterilization, abortion, or psychosurgery or for admission to a state
mental health facility for a period of more than forty-five days without a mental health
proceeding or other court order.
If a patient who is determined by a physician to be an incapacitated person, or a
person interested in the patient's welfare, objects to a determination of incapacity
made pursuant to this section, a court hearing pursuant to chapter 30.1-28 must be
held to determine the issue of incapacity.
23-12-14. Copies of medical records and medical bills.
1. As used in this section, "health care provider" means a licensed individual or licensed
facility providing health care services. Upon the request of a health care provider's
patient or any person authorized by a patient, the provider shall provide a free copy of
a patient's health care records to a health care provider designated by the patient or
the person authorized by the patient if the records are requested for the purpose of
transferring that patient's health care to another health care provider for the
continuation of treatment.
2. Except as provided in subsection 1, upon the request for medical records or medical
bills with the signed authorization of the patient, the health care provider shall provide
medical records and any associated medical bills either in paper or facsimile format at
a charge of no more than twenty dollars for the first twenty-five pages and seventy-five
cents per page after twenty-five pages or in an electronic, digital, or other
computerized format at a charge of thirty dollars for the first twenty-five pages and
twenty-five cents per page after twenty-five pages. This charge includes any
administration fee, retrieval fee, and postage expense.
23-12-15. State agency provision of medical equipment - Policy for reuse, recycling,
or resale.
If a state agency uses state funds to provide free medical equipment to an individual, that
state agency shall establish a policy addressing the possible reuse, recycling, or resale value of
the medical equipment upon replacement of the medical equipment by that state agency or
upon disuse of the medical equipment by the individual.
23-12-16. Right to breastfeed.
If the woman acts in a discreet and modest manner, a woman may breastfeed her child in
any location, public or private, where the woman and child are otherwise authorized to be.
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23-12-17. Workplace breastfeeding policies - Infant friendly designation.
1. An employer may use the designation "infant friendly" on its promotional materials if
the employer adopts a workplace breastfeeding policy that includes the following:
a. Flexible work scheduling, including scheduling breaks and permitting work
patterns that provide time for expression of breast milk;
b. A convenient, sanitary, safe, and private location, other than a restroom, allowing
privacy for breastfeeding or expressing breast milk;
c. A convenient clean and safe water source with facilities for washing hands and
rinsing breast-pumping equipment located in the private location specified in
subdivision b; and
d. A convenient hygienic refrigerator in the workplace for the temporary storage of
the mother's breast milk.
2. The state department of health shall establish guidelines for employers concerning
workplace breastfeeding and infant friendly designations.
23-12-18. Medical facility and provider performance reviews and ratings - Notice.
1. If a medical facility or provider in this state has a performance review that results in the
receipt of a rating, and at any time pays a fee to the person completing the rating, the
medical facility or provider shall include a public notice in any promotional or marketing
activities referring to the rating information stating that the medical facility or provider
made a payment and stating the amount of that payment made to the person
performing the rating.
2. Subsection 1 does not apply to a performance review required to maintain licensure or
accreditation by governmental or third-party payers or to maintain accreditation by a
quality assurance organization.
23-12-19. Voluntary participation in the health information organization - Prohibition
on withholding care or benefits.
1. As used in this section:
a. "Health information organization" means the health information exchange created
under chapter 54-59.
b. "Individually identifiable health information" has the meaning set forth in title 45,
Code of Federal Regulations, section 160.103.
2. An individual may opt-out of participating in the health information organization by
providing notice to the organization. If an individual chooses to opt-out of participating
in the health information organization, the individual's individually identifiable health
information may not be accessed by search by a health insurer, government health
plan, or health care provider other than the provider who originally created or ordered
the creation of the individually identifiable health information.
3. In opting out of participating in the health information organization under this section,
the individual must have the option of:
a. Opting out of participating; or
b. Conditionally opting out, in which case the accessibility of the individual's
individually identifiable health information is limited to access by a health care
provider who determines access is required by a medical emergency.
4. An individual's decision to opt-out of participating in the health information
organization:
a. May be changed at any time by the individual by providing written notice to the
health information organization.
b. Does not prohibit use or disclosure of individually identifiable health information
which is required by law.
5. A health care provider, health insurer, or government health plan may not withhold
coverage or care from an individual nor may a health insurer deny an individual a
health insurance benefit plan based solely on that individual's choice to participate or
to opt-out of the health information organization.
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