Hawaii

Clean Indoor Air

Public Places

Smoking is prohibited in all enclosed and partially enclosed places open to the public, including all restaurants and bars, see section 328J-3 for a detailed list. Smoking is also prohibited in all enclosed or partially enclosed areas of places of employment, and enclosed or partially enclosed areas and in seating areas of sports arenas, outdoor arenas, stadiums, and amphitheaters. Smoking is also prohibited within a presumptively reasonable minimum distance of 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited. Exemptions include: 1) private residences, except when used as a licensed child care, adult day care, or health care facility; 2) 20 percent of hotel/motel rooms rented to guests as specified; 3) retail tobacco stores as defined, provided that smoke from these places shall not infiltrate into areas where smoking is prohibited; 4) private and semiprivate rooms in nursing homes and long-term care facilities as specified; 5) outdoor areas of places of employment; 6) all areas covered by this chapter when smoking is part of a production being filmed; and 7) state correctional facilities.

HAW. REV. STAT. §§ 328J-1 to 328J-15 (2006).

Nothing in this chapter shall be construed to supersede or in any manner affect a county smoking ordinance; provided that the ordinance is at least as protective of the rights of nonsmokers as this chapter, and nothing in this chapter shall prohibit a county from enacting ordinances more stringent than this chapter.

HAW. REV. STAT. § 328J-15 (2006).

Government Buildings

Smoking shall be prohibited in all enclosed or partially enclosed areas, including buildings and vehicles owned, leased, or operated by the state or any county. Smoking is also prohibited within a presumptively reasonable minimum distance of 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited. State correctional facilities are exempt.

HAW. REV. STAT. §§ 328J-1 to 328J-15 (2006).

Private Workplaces

Smoking shall be prohibited in all enclosed or partially enclosed areas of places of employment. “Place of employment” is defined as an area under the control of a public or private employer that employees normally frequent during the course of employment, including but not limited to auditoriums, cafeterias, classrooms, clubs, common work areas, conference rooms, elevators, employee lounges, hallways, medical facilities, meeting rooms, private offices, restrooms, and stairs. A private residence is not a “place of employment” unless it is used as a child care, adult day care, or health care facility. Smoking is also prohibited within a presumptively reasonable minimum distance of 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited. Outdoor areas of places of employment are exempt.

HAW. REV. STAT. §§ 328J-1 to 328J-15 (2006).

Schools

Smoking shall be prohibited in all enclosed or partially enclosed areas open to the public, including both public and private educational facilities. Smoking is also prohibited within a presumptively reasonable minimum distance of 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited.

HAW. REV. STAT. §§ 328J-1 to 328J-15 (2006).

Use of tobacco is prohibited in all public schools and at all public school functions, grades kindergarten through 12th grade. The Department of Education shall provide affected public employees with breaks throughout the work day during which they may smoke at locations off-campus. The Department of Education shall also provide a smoking cessation program for public employees who are interested in participating.

HAW. REV. STAT. § 302A-102 (2004).

Child Care Centers

Smoking shall be prohibited in all enclosed or partially enclosed areas open to the public, including licensed child care and adult day care facilities. Home-based child care facilities are included. Smoking is also prohibited within a presumptively reasonable minimum distance of 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited.

HAW. REV. STAT. §§ 328J-1 to 328J-15 (2006).

Smoking is prohibited in child care facilities, including group child care homes, group child care centers, and family day care homes during their hours of operation. “Family child care home” means a private residence, at which care may be provided for three to no more than six children who are unrelated to the caregiver by blood, marriage, or adoption, at any given time. “Group child care home” means a facility, which may be an extended or modified private home, at which care is provided for seven to twelve children. “Group child care center” means a facility, other than a private home, at which care is provided.

HAW. REV. STAT. §§ 346-151& 346-158 (1993).

Health Facilities

Smoking shall be prohibited in all enclosed or partially enclosed areas open to the public, including health care facilities. “Health care facility” is defined as an office or institution, including all waiting rooms, hallways, private rooms, semiprivate rooms, and wards, which provides care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, dentists, and all specialists within these professions. Health care facilities in private residences are specifically included. Smoking is also prohibited within a presumptively reasonable minimum distance of 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited. Private and semiprivate rooms in nursing homes and long-term care facilities that are occupied by one or more persons, all of whom are smokers and have requested in writing to be placed in a room where smoking is permitted, are exempt.

HAW. REV. STAT. §§ 328J-1 to 328J-15 (2006).

Restaurants

Restaurants: Smoking shall be prohibited in all enclosed or partially enclosed areas open to the public, including restaurants. “Restaurant” is defined as an eating establishment, including but not limited to coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term “restaurant” includes a bar area within the restaurant and outdoor areas of restaurants. Smoking is also prohibited within a presumptively reasonable minimum distance of 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited.

HAW. REV. STAT. §§ 328J-1 to 328J-15 (2006).

Bars: Smoking shall be prohibited in all enclosed or partially enclosed areas open to the public, including bars and nightclubs. “Bar” is defined as an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises regardless of whether food is served, including but not limited to taverns, cocktail lounges, and cabarets, including outdoor areas of bars. “Nightclub” is defined as an establishment in which live entertainment is provided or facilities for dancing by patrons either by live entertainment or recorded music may be provided, regardless of whether alcoholic beverages are served. Smoking is also prohibited within a presumptively reasonable minimum distance of 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited.

HAW. REV. STAT. §§ 328J-1 to 328J-15 (2006).

Penalties/Enforcement

Clearly legible signs that include the words “Smoking Prohibited by Law” or the international “No Smoking” symbol shall be clearly and conspicuously posted in and at the entrance to every place open to the public and place of employment where smoking is prohibited by the owner, operator, manager, or other person in control of that place. A person who smokes in an area where smoking is prohibited shall be guilty of a violation and fined not more than $50. Police officers are empowered to issue citations. A person who owns, manages, operates, or otherwise controls any place or facility designated by this chapter and fails to comply with this chapter shall be guilty of a violation and fined not more than $100 for a first violation, not more than $200 for a second violation within one year of the first violation and $500 for each additional violation within one year of the first violation. Violation may also result in the suspension or revocation of any permit or license issued to the person or the place for the premises on which the violation occurred. Each day on which a violation occurs will be considered a separate offense. Enforcement of this law will be under the jurisdiction of the Department of Health.

HAW. REV. STAT. §§ 328J-1 to 328J-15 (2006).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: $2.00

Date last changed: September 30, 2008 – from $1.80 to $2.00

Year first enacted: 1939

HAW. REV. STAT. § 245-3 (2006).

All moneys collected shall be paid into the state treasury as state realizations, provided that of the moneys collected under the tax imposed pursuant to: section 245-3(a)(7) after September 30, 2008, and prior to October 1, 2009, 2 cents per discount cigarette to the Hawaii Cancer Research Special Fund (HCRSF), 0.5 cents per cigarette to the Trauma System Special Fund (TSSF), 0.25 cents per cigarette to the Community Health Centers Special Fund (CHCSF) and 0.25 cents per cigarette to the Emergency Medical Services Special Fund; section 245-3(a)(8) after September 30, 2009, and prior to October 1, 2010, 2 cents per cigarette to the HCRSF, 0.75 cents per cigarette to the TSSF, 0.75 cents per cigarette to the CHCSF, 0.5 cents per cigarette to the EMSSF; section 245-3(a)(9) after September 30, 2010, and prior to October 1, 2011, 2 cents per cigarette to the HCRSF, 1 cent per cigarette to the TSSF, 1 cents per cigarette to the CHCSF, and 1 cent per cigarette to the EMSSF; and section 245-3(a)(10) after September 30, 2011, 2 cents per cigarette to the HCRSF, 1.5 cents per cigarette to the TSSF, 1.25 cents per cigarette to the CHCSF and 1.25 cents per cigarette to the EMSSF.

HAW. REV. STAT. § 245-15 (2007).

Other Tobacco Products

All other tobacco products: 40% of the wholesale price

HAW. REV. STAT. § 245-3 (1998).

Revenue Collected

$88,772,000

Youth Access

Compliance/Enforcement

The Hawaii Department of Health, Alcohol and Drug Abuse Division, has a cooperative agreement with the University of Hawaii, Cancer Research Center of Hawaii to give technical assistance to police departments in conducting tobacco sale inspections to enforce HAW REV. STAT. § 709-908. They are required to complete a minimum number of compliance checks per contract year, and recruit minor volunteers ages 15 to 17 to assist with the inspections. The Cancer Research Center must follow certain requirements concerning minor volunteers such as obtaining written parental consent and ensure that minors do not carry false identification or lie during compliance checks.

FY2009 Memorandum of Agreement (2008).

The Hawaii Department of Health, Alcohol and Drug Abuse Division, has a cooperative agreement with police departments across the islands to enforce HAW REV. STAT. § 709-908 by conducting a certain number of inspections by minor volunteers of places where tobacco products are sold at retail.

FY2009 Memorandums of Agreement with Police Departments (2008).

Penalties for Sales to Minors

No person shall sell or furnish tobacco to a minor under 18 years of age. Any person who violates this law shall be fined not more than $500 for the first offense and $500 to $2,000 for subsequent offenses. Retail clerks and not the owner of the store are cited for violations.

HAW. REV. STAT. § 709-908 (1998).

Penalties to Minors

Any minor under the age of 18 who purchases any tobacco product shall be fined $10 for the first offense and $50 or 48 to 72 hours of community service for subsequent offenses. This provision does not apply if a person under the age of 18, with parental notification, is participating in a controlled purchase as part of a law enforcement activity or a study authorized by the Department of Health.

HAW. REV. STAT. § 709-908 (1998).

Sign Posting

Signs using the statement, “THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER 18 IS PROHIBITED,” shall be posted at or near the point of sale where tobacco products are sold in letters at least one-half inch high. Any person who violates this law shall be fined $500 for the first offense and $500 to $2,000 for subsequent offenses.

HAW. REV. STAT. § 709-908 (1998).

Other Provisions

Internet Sales: It is unlawful to ship cigarettes to a person or entity that is not: licensed to sell or possess tobacco products by the state, an export warehouse proprietor, or an operator of a customs-bonded warehouse. This does not apply if the cigarettes are exempt from taxes, all applicable Hawaii taxes are paid, or the person or entity has fully complied with the federal Jenkins Act and includes a specified notice on the shipping container. Violation is a Class C felony if 1,000 or more cigarettes are shipped illegally, and a misdemeanor if less than 1,000 cigarettes are shipped illegally. A delivery service is exempt if it is not a knowing participant in violating this law. Other tobacco products are excluded from these requirements.

HAW. REV. STAT. § 245-16 (2004).

Note: Some parts of this law may be affected by the U.S. Supreme Court decision in Rowe v. New Hampshire Motor Transport Association, decided February 20, 2008.

Restrictions on Distribution of Tobacco Product Samples or Sales of Single Cigarettes

Samples

It is unlawful to distribute sample tobacco products on or in any public street, sidewalk, or park or within 1,000 feet of any school attended by minors. The distribution of tobacco promotional materials or tobacco coupons within 1,000 feet of any school attended by minors is prohibited. This statute does not apply to commercial establishments where distribution is not visible to the public or establishments that prohibit minors. Violators will be fined not more than $1,000.

HAW. REV. STAT. § 328K-22 (1999).

Single Cigarettes

It is unlawful to sell single cigarettes or packs of cigarettes containing less than 20 cigarettes. It is unlawful to sell cigarettes other than in sealed packages originating with the manufacturer and bearing the health warning required by law. Violators will be fined no more than $2,500 for the first offense and $100-$5,000 for any subsequent offense. Knowingly violating this section is a Class C felony.

HAW. REV. STAT. § 712-1257 (2000).

It shall be unlawful for an entity to possess, keep, store, retain, transport, sell, or offer to sell, distribute, acquire, hold, own, import, or cause to be imported into the state any cigarette the package of which does not comply with all requirements imposed by federal law regarding warnings and other information on packages of cigarettes manufactured, packaged, or imported for sale, distribution, or use in the United States, including, but not limited to, the specific warning labels specified in the federal Cigarette Labeling and Advertising Act. Any person who knowingly violates this section shall be guilty of a Class C felony, and upon conviction thereof, shall be fined not more than $10,000, and/or may be imprisoned for one to five years.

HAW. REV. STAT. §§ 245-51 (2003) & 245-53 (2000).

Restrictions on Sale of Tobacco Products in Vending Machines

Placement

The sale of cigarettes from vending machines is prohibited unless the vending machine is located in a bar, cabaret, or any other establishment for which the minimum age of admission is 18. It is also unlawful to sell cigarettes from a lunch wagon within 1,000 feet of any public or private elementary or secondary school grounds.

HAW. REV. STAT. § 328K-21 (1996).

Penalty

Violations are subject to a fine of up to $1,000 per day for each violation.

HAW. REV. STAT. § 328K-21 (1996).

Sign Posting

A sign stating “THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER 18 IS PROHIBITED” shall be posted on or near any vending machine in letters at least one-half inch high. A person who fails to post the appropriate sign shall be fined $500 for the first offense and $500 to $2,000 for subsequent offenses.

HAW. REV. STAT. § 709-908 (1998).

Licensing Requirements

Requirements

It shall be unlawful for any person to engage in the business of a wholesaler or dealer in the state without having received a license issued by the Department of Taxation; provided that this section shall not be construed to supersede any other law relating to licensing of persons in the same business. The license shall be renewable annually on July 1st for the 12 months ending the succeeding June 30th. The license may be suspended, revoked or not renewed by the department for specified reasons.

HAW. REV. STAT. § 245-2 (2005).

Every retailer engaged in the retail sale of cigarettes and other tobacco products shall obtain a retail tobacco permit. Permits shall be valid for one year, from December 1 to November 30, and renewable annually. A separate retail tobacco permit shall be obtained for each place of business owned, controlled, or operated by a retailer. A retail tobacco permit shall be non-assignable and nontransferable from one entity to another, and shall be displayed at all times in a conspicuous place at the place of business. Sales of cigarettes and tobacco products from vending machines are subject to the licensing requirements. Beginning March 1, 2007, a person or entity that knowingly fails to obtain the required permit and, for the purposes of retail sale, recklessly sells, possesses, stores, acquires, distributes, or transports 5,000 or more cigarettes is guilty of unlawful tobacco retailing in the 1st degree punishable as a misdemeanor for the 1st offense and a Class C felony for subsequent offenses within five years of the first offense. A person or entity that knowingly fails to obtain the required permit and, for the purposes of retail sale, recklessly sells, possesses, stores, acquires, distributes, or transports fewer than 5,000 cigarettes or any tobacco products is guilty of unlawful tobacco retailing in the 2nd degree punishable as a petty misdemeanor for the 1st offense and a misdemeanor for subsequent offenses within five years of the first offense. This law is scheduled to sunset on July 1, 2009.

HAW. REV. STAT. §§ 245-2.5 to 245-2.7 (2005).

Fee

$2.50 per license application for wholesalers or dealers; $20 per permit for retailers.

HAW. REV. STAT. § 245-2 & 245-2.5(c) (2005).

Tobacco Liability

Industry Protection

In civil litigation under any legal theory involving a signatory, a successor of a signatory, or an affiliate of a signatory to the Master Settlement Agreement (MSA), the supersedeas bond to be furnished to stay the execution of the judgment during the entire course of appellate review shall be set in accordance with applicable laws or court rules, except that the total bond that is required of all appellants collectively shall not exceed $150 million, regardless of the amount of the judgment. If an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid the payment of a judgment, a court may require the appellant to post a bond in an amount up to the full amount of the judgment.

HAW. REV. STAT. § 328L-7 (2004).

In any civil action brought under any legal theory, the amount of a supersedeas bond or other form of security necessary to stay execution of a judgment granting legal, equitable, or any other form of relief during the entire course of all appeals or discretionary review of that judgment by all appellate courts shall be set in accordance with applicable law, except that the total amount of the supersedeas bond or other form of security that is required of any party shall not exceed $25 million regardless of the amount of the judgment that is appealed. If the party posting the bond is a “small business concern,” the required supersedeas bond is capped at $1 million. If a party in whose favor the judgment has been entered proves to a court by a preponderance of the evidence that an appellant who has posted a supersedeas bond is intentionally dissipating assets outside the ordinary course of its business for the purpose of avoiding payment of the judgment, a court may require the appellant to post a supersedeas bond in an amount up to the total amount of the judgment appealed. This statute does not apply to MSA signatories, which are covered by a separate, existing statute (see above).

HAW. REV. STAT. § 607-26 (2006).

Tobacco Settlement

Tobacco Control Appropriations

Expected non-federal expenditure of $10,546,090 for tobacco prevention and cessation programs in 2008/2009 from the state general fund, Master Settlement Agreement (MSA) moneys expended by the Hawaii Tobacco Prevention and Control Trust Fund and MSA moneys allocated to the state Department of Health. $10,388,000 was expended in 2007/2008.

FY2008-FY2009 Budget (H.B. 500) enacted 6/27/07 and effective 7/1/07 (FY2008) & 7/1/08 (FY2009); and expenditure for calendar year 2008 from Hawaii Tobacco Prevention and Control Trust Fund.

Hawaii established the Tobacco Settlement Special Fund into which all monies received from the Master Settlement Agreement are deposited as well as interest and earnings from this money. The first $350,000 of this money goes into the Tobacco Enforcement Special Fund. The remaining money is distributed as follows: 24.5 percent to the Emergency and Budget Reserve Fund, 35 percent to the Department of Health for health promotion and disease prevention programs, 12.5 percent into the Tobacco Prevention and Control Trust Fund and 28 percent into a University Revenue Undertakings Fund.

HAW. REV. STAT. § 328L-2 (2003).

There is established the Hawaii Tobacco Prevention and Control Trust Fund as a separate fund of a nonprofit entity having a board of directors and qualifying under section 501(c)(3) of the Internal Revenue Code of 1986, as amended, into which shall be deposited a set percentage of the annual MSA payments. Up to 50 percent of the total market value of the trust fund on the preceding June 30th, may be spent for tobacco prevention and control, including but not limited to, reducing cigarette smoking and tobacco use among youth and adults through education and enforcement activities, and controlling and preventing chronic diseases where tobacco is a risk factor.

HAW. REV. STAT. § 328L-5 (2001).

Non-Monetary Provisions

Hawaii established a Tobacco Prevention and Control Advisory Board to develop, in collaboration with the state Department of Health, a strategic plan for tobacco prevention and control.

HAW. REV. STAT. § 328L-6 (1999).

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