In 2009, the South Dakota Legislature approved House Bill 1240, which expanded the state smoking ban. The new law was placed on hold when opponents of the measure successfully gathered enough signatures on petitions to take the issue to a public vote.
In November of 2010, South Dakota voters approved the law, and the expanded smoking ban went into effect November 10, 2010.
Violations by customers and businesses
Under this law, it is a petty offense - punishable by a penalty of up to $25 - for a person to smoke tobacco or carry any lighted tobacco product in any public place or any public place of employment. The law also stipulates that any person who owns, manages, operates or otherwise controls a public place or place of employment must inform people who are violating the law. A violation of of that provision is also a petty offense, punishable by a penalty of up to $25.
The law defines a public place as any enclosed area to which the public is invited or in which the public is permitted. A place of employment is defined as any enclosed area under the control of a public or private employer. An enclosed area is defined as any space between a floor and a ceiling that is enclosed, exclusive of doorways, on all sides by permanent or temporary walls or windows.
Exempt entities
There are some exemptions under the law. The following locations / entities / businesses are exempt:
- Private residence unless the private residence is used for day care.
- Sleeping rooms in any hotel or lodging establishment licensed pursuant to subdivision 34-18-1(6) or (7), respectively, if the rooms are rented to guests. Any sleeping room in which smoking is allowed shall be posted as a smoking room.
- [Cigar bars] Any establishment licensed pursuant to subdivision 35-4-2(4), (6), (12), or (16) that was in compliance on January 1, 2009, with, and maintains compliance with, the following requirements:
(1) Generates ten percent or more of its annual gross income from the sale of cigars. For the purposes of this section, a cigar is any individual roll of tobacco that has a wrapper or cover consisting only of tobacco, that measures a number forty ring size or larger, and that is sold without a filter;
(2) Has a humidor on the premises; and
(3) Is enclosed by solid walls or windows, a ceiling, and a solid door and is equipped with a ventilation system by which exhausted air is not recirculated to nonsmoking areas and smoke is not backstreamed into nonsmoking areas.
Any establishment meeting the requirements of this section may permit the smoking of cigars and any premium tobacco product purchased on the premises. However, no establishment may permit the smoking of any other tobacco product on the premises. The establishment shall post a notice of the prohibition. Any establishment meeting the requirements of this section shall annually report to the Department of Revenue and Regulation, on a form prescribed by the department, the revenue generated from the sale of cigars as a percentage of annual gross income.
- Any retail tobacco store that meets the following requirements:
(1) Generates sixty-five percent of its annual gross income from the sale of tobacco, tobacco products, and accessories for such products;
(2) Is enclosed by solid walls or windows, a ceiling, and a solid door that provides egress to the outdoors; and
(3) Does not allow the consumption of alcoholic beverages on the premises.
Any retail tobacco store meeting the requirements of this section shall annually report to the Department of Revenue and Regulation, on a form prescribed by the department, the revenue generated from the sale of tobacco, tobacco products, and accessories for such products as a percentage of annual gross income.
Online reporting forms for cigar bars and retail tobacco stores
The Annual Tobacco Sales Reporting Form, as listed in South Dakota Codified Law 34-46-18 and SDCL 34-46-19, is available from the South Dakota Department of Revenue and Regulation for qualified business establishments that want to permit smoking on their premises.
With the recent voter passage of the referred law, licensed establishments meeting the requirements of SDCL 34-46-18 as a "cigar bar" must annually report to the Department the amount of revenue generated from sales of cigars as a percentage of annual gross income. The establishment must generate ten percent or more of its annual gross income from cigar sales.
Any retail tobacco store that wants to meet the requirements of SDCL 34-46-19 must annually report to the Department of Revenue and Regulation the revenue generated from the sale of tobacco, tobacco products, and accessories for such products as a percentage of annual gross income. Sixty-five percent of the store’s annual gross income must be generated from the sale of tobacco, tobacco products, and accessories for such products.
Filers who meet the income requirements will receive a confirmation from the Department indicating that the annual filing requirement for the applicable statute has been completed.
The Annual Tobacco Sales Reporting Form can be accessed through the Business Tax General Forms section of the Department’s website at www.state.sd.us/drr or by calling the Taxpayer Assistance Helpline at 1-800-829-9188.
Enforcement
Violations of the law are reported to local law enforcement agencies.
Additional information
The South Dakota Department of Health has some additional information and free signage on their website at http://doh.sd.gov/tobacco/