2020 New Mexico Statutes
Chapter 24 - Health and Safety
Article 16 - Dee Johnson Clean Indoor Air
Section 24-16-3 - Definitions.
As used in the Dee Johnson Clean Indoor Air Act:
A. "bar" means an establishment that is devoted to the selling or serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of those beverages, including taverns, nightclubs, cocktail lounges and cabarets;
B. "cigar bar" means an establishment that:
(1) is a bar as defined in Subsection A of this section; and
(2) is engaged in the business of selling cigars for consumption by patrons on the premises and generates ten percent or more of its total annual gross revenue or at least ten thousand dollars ($10,000) in annual sales from the sale of cigars, not including any sales from vending machines. A cigar bar that fails to generate at least ten percent of its total annual sales from the sale of cigars in the calendar year after December 31, 2006, not including sales from vending machines, shall not be defined as a cigar bar and shall not thereafter be known as such regardless of sales figures. A cigar bar shall agree to provide adequate information to demonstrate to the state's satisfaction compliance with this definition;
C. "department" means the department of health;
D. "designated outdoor smoking area" means an area where smoking may be permitted, designated by an employer or manager, outside an indoor workplace or indoor public place; provided that the following conditions are maintained:
(1) smoking shall not be permitted near any building entrance, including a door, window or ventilation system of any facility where smoking is prohibited under the provisions of the Dee Johnson Clean Indoor Air Act, so as to prevent secondhand smoke from entering the indoor workplace or indoor public place; and
(2) employees or members of the general public are not required to walk through the smoking area to gain entrance to the indoor workplace or indoor public place;
E. "e-cigarette" means a product containing or delivering nicotine or another substance intended for human consumption that can be used by a person in any manner for the purpose of inhaling vapor or aerosol from the product, including a device, whether manufactured, distributed, marketed or sold as an e-cigarette, e-cigar, e-pipe, e-hookah or vape pen or under another product name or descriptor;
F. "employer" means an individual, a partnership, a corporation or the state or a political subdivision of the state that employs the services of one or more individuals;
G. "enclosed" means an interior space predominantly or totally bounded on all sides and above by physical barriers, regardless of whether such barriers consist of or include uncovered openings, screened or otherwise partially covered openings or open or closed windows;
H. "indoor public place" means the enclosed area within a governmental or nongovernmental place to which the public is invited or in which the public is permitted regardless of whether work or public business, meetings or hearings occur at any given time;
I. "indoor workplace" means an enclosed place where one or more persons engage in work, including lobbies, reception areas, offices, conference and meeting rooms, employee cafeterias and lunchrooms, break rooms and employee lounges, classrooms, auditoriums, hallways, stairways, waiting areas, elevators and restrooms and includes all indoor workplaces and enclosed parts regardless of whether work occurs at any given time;
J. "private club" means an organization, whether incorporated or not, that is the owner, lessee or occupant of a building or portion thereof used exclusively for the organization's purposes at all times, that is operated solely for recreational, fraternal, social, patriotic, political, benevolent or athletic purposes, but not for pecuniary gain, and that only sells alcoholic beverages incidental to its operation. The organization shall have bylaws or a constitution to govern its activities and shall have been granted an exemption as a club under the provisions of Section 501 of the Internal Revenue Code of 1986, as amended;
K. "retail tobacco store" means a retail store, used primarily for the sale of tobacco products, including e-cigarettes, and accessories and in which the sale of other products is merely incidental, including smoke shops, cigar shops or hookah lounges, and does not include establishments that offer for sale alcoholic beverages for consumption by patrons on the premises;
L. "secondhand smoke" means:
(1) smoke emitted from inhaling from, exhaling from, burning, carrying or holding:
(a) a lighted or heated cigar, cigarette, hookah or pipe; or
(b) any other lighted or heated tobacco or plant product intended for inhalation, including cannabis, whether natural or synthetic; or
(2) the aerosol or vapor emitted from inhaling or exhaling or any other use of an e-cigarette;
M. "smokefree area" means a building or other enclosed space where smoking is prohibited;
N. "smoking" means:
(1) inhaling from, exhaling from, burning, carrying or holding:
(a) a lighted or heated cigar, cigarette, hookah or pipe; or
(b) any other lighted or heated tobacco or plant product intended for inhalation, including cannabis, whether natural or synthetic; or
(2) any use of an e-cigarette that creates an aerosol or vapor;
O. "smoking-permitted area" means a building or other enclosed space where smoking may be permitted; provided that secondhand smoke does not infiltrate any area where smoking is prohibited pursuant to the Dee Johnson Clean Indoor Air Act; and
P. "standalone building" means a building whose heating, air conditioning and ventilation system services only that building.
History: Laws 1985, ch. 85, § 3; 2007, ch. 20, § 2; 2019, ch. 128, §1.
ANNOTATIONSCross references. — For Section 501 of the Internal Revenue Code of 1986, see 26 U.S.C., § 501.
The 2019 amendment, effective June 14, 2019, defined "e-cigarette" and "standalone building", revised the definitions of "secondhand smoke" and "smoking", and removed the definition of "restaurant" for purposes of the Dee Johnson Clean Indoor Air Act; added a new Subsection E and redesignated former Subsections E through I as Subsections F through J, respectively; deleted former Subsection J, which defined "restaurant"; in Subsection K, after "tobacco products", added "including e-cigarettes"; in Subsection L, in the introductory clause, after "means", deleted "smoke emitted from lighted, smoldering or burning tobacco when the smoker is not inhaling, smoke emitted at the mouthpiece during puff drawing and smoke exhaled by the smoker", and added Paragraphs L(1) and L(2); in Subsection N, added new paragraph designation "(1)", in Paragraph N(1), added new subparagraph designations "(a)" and "(b)", in Subparagraph N(1)(a), after "lighted", added "or heated cigar, cigarette, hookah or pipe; or", in Subparagraph N(1)(b), added "any other lighted or heated", after "tobacco", added "or plant", and after "product", deleted "including all types of cigarettes, cigars and pipes and any other lighted tobacco product" and added "intended for inhalation, including cannabis, whether natural or synthetic; or", and added Paragraph N(2); and added Subsection P.
The 2007 amendment, effective June 15, 2007, changed the name of the "Clean Indoor Air Act" to the "Dee Johnson Clean Indoor Air Act"; deleted former Subsection A, which defined "employer" as the state or political subdivision who employees more than fifteen persons; deleted former Subsection B, which defined "place of employment" as an enclosed indoor area under the control of a public employer that employees frequent during the course of employment; deleted former Subsection C, which defined "public meeting" as a meeting required by law to be an open meeting; deleted former Subsection D, which defined "public place" as any enclosed indoor area in a building owned or leased by the state or a political subdivision; deleted former Subsection E, which defined "smoke" or "smoking" as the carrying or holding of a lighted pipe, cigar or cigarette; deleted former Subsection F, which defined "smoking permitted area" as a portion of a public place in which smoking is permitted; added new Subsection A to define "bar"; added new Subsection B to define "cigar bar"; added new Subsection C to define "department"; added new Subsection D to define "designated outdoor smoking area"; added new Subsection E to define "employer"; added new Subsection F to define "enclosed"; added Subsection G to define "indoor public place"; added Subsection H to define "indoor workplace"; added Subsection I to define "private club"; added Subsection J to define "restaurant"; added Subsection K to define "retail tobacco store"; added Subsection L to define "secondhand smoke"; added Subsection M to define "smokefree area"; added Subsection N to define "smoking"; and added Subsection O to define "smoking-permitted area".
Severability. Laws 2007, ch. 20. § 14, effective June 15, 2007, provided for the severability of the act if any part or application thereof is held invalid.
Public place. — State law regulating smoking does not impose controls on Indians who sell jewelry on the portal of the Palace of the Governors, because the portals are not a "public place" for the purposes of this article. 1987 Op. Att'y Gen. No. 87-21 (rendered under prior law).
A jail is a "public place" within the meaning of Subsection D. 1989 Op. Att'y Gen. No. 89-03 (rendered under prior law).
Municipal ordinance which was broader than the Clean Air Act, in that the ordinance applied to private businesses and work areas, was permissible because it contemplated rather than conflicted with the purpose of the act. 1989 Op. Att'y Gen. No. 89-03.
