ELLEN F.

ROSENBLUM

FREDERICK M. BOSS

Attorney General

Deputy Attorney General

DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION

May 16, 2016

Dexter Johnson
Legislative Counsel
900 Court St., NE S-101
Salem, OR 97301-1043
Re:

Indoor Clean Air Act Violations in State Capitol building

Dear Mr. Johnson:

The Oregon Health Authority (OHA) shared with me the follow-up letter sent to
BethAnne Darby on May 9, 2016, regarding the meeting about the Oregon Indoor Clean Air Act
(ICAA) and reported violations of the ICAA by Senator Jeff Kruse. I advise OHA on ICAA
issues and have been involved in discussions with OHA about its authority under the ICAA.
OHA asked that I respond to the letter.
Your letter describes Senator Kruses violations of the ICAA and references complaints
submitted to the OHA in 2011, 2012 and 2013. Your letter ascertains that the complaints were
based, in part, on smoking engaged in by Senator Kruse and, in part, on smoking by a Facilities
Services employee.
The official valid complaints submitted to OHA in 2011, 2012 and 2013 do not
specifically identify Senator Kruse or a Facilities Services employee. The 11 complaints
submitted to OHA about ICAA violations in the Oregon State Capitol between January 14, 2009
and October 18, 2013 are listed below in their entirety (typographical errors in the original).
Date of Complaint
October 22, 2009
October 24, 2009

Complaint Text
Smoke in senate east stairway.
People are smoking right next to the building by a door way and
next to a window which happens to be under cover in the Beaver
Courtyard. This courtyard is in between the underground parking
garage and the basement entrance and also it's next to Purchasing &
Supply in Rm #49 to the Capitol. My understanding is that the law
is 10 ft. from a door and also 10 ft. from a window or from the
building, which would put the smokers out in the middle of the
courtyard to be legal. Please check for compliance of the law.
Please check all entrances as this law is not being followed and

1515 SW Fifth Ave, Suite 410, Portland, OR 97201

Telephone: (971) 673-1880 Fax: (971) 673-1884 TTY: (503) 378-5938 www.doj.state.or.us

Dexter Johnson
May 16, 2016
Page 2

November 20, 2009

May 25, 2010

December 21, 2011

November 2, 2012
December 3, 2012
June 25, 2013
September 5, 2013
October 17, 2013

October 18, 2013

they need to be educated as to what's the proper distance for

smokers to go smoke. Thank-you.
Smoke in east senate stairwell
Some staff are still smoking right outside the windows instead of
standing or sitting 10 feet away. The smoke then wafts through the
windows into the offices.
Smoking in east senate stairwell ground floor.
Smoke in east senate stairwell coming from s15 person smoking in
cornor and smoke drifts into stairwell.
Smoking in boiler room where i have to work
Smoking in s-15 mechinical room.
Smoking in boiler mechanical room s-15.
There is still smoking going on in s-15 by the same person. It has
been since January when they were informed about it and in
September they might look into it.
While taking state parks ground crew into s-15 the person was
smoking at the sink and spraying cleaner on smoke hurring to put it
out.

On February 23, 2016, Lore Christopher sent an email to the ICAA general mailbox and
left a voice mail on the ICAA complaint line to inquire about advice for how to handle the
situation of a state senator smoking indoors. She did not indicate who the state senator was.
Lore Christopher also contacted Emily de Hayr of the Marion County Health Department. On
February 26, 2016, Emily de Hayr contacted OHA to relay that she recommended that
Legislative Administration submit a complaint to OHA regarding Senator Kruse smoking
indoors so OHA could take action. Emily de Hayr said the Legislative Administration was
reluctant to file a complaint as they did not feel it would change Senator Kruses behavior. No
complaint was filed.
Included in your May 9th letter was a summary of complaints describing eye-witness
accounts of Senator Kruse smoking in his office and in his vehicle, in the enclosed parking
garage, at the State Capitol during the 2016 legislative session. Based on the complaints
received, Senator Kruse could be in violation of:

OAR 333-015-0078(1)(a) Smoking, aerosolizing, vaporizing or carrying a lighted

smoking instrument or inhalant delivery system in an area where smoking, aerosolizing
or vaporizing of inhalants is prohibited.

In response to these complaints, consistent with OHAs enforcement rules, specifically

OAR 333-015-0075, OHA issued a Warning Letter to Senator Kruse on May 16, 2016.

Dexter Johnson
May 16, 2016
Page 3

If OHA receives additional complaints, with specific information relating to Senator Kruse,
about these violations, OHA may pursue civil penalties (ORS 433.855, 433.860).

Sincerely,

Shannon K. O'Fallon
Senior Assistant Attorney General
Health and Human Services Section

SKO:etb/JUSTICE-#7381436-v1

cc:

Lore Christopher, Human Resources Director, Oregon Legislature

BethAnne Darby, External Relations Director, Oregon Health Authority
Karen Girard, Health Promotion and Chronic Disease Section Manager, Oregon Health Authority

Attachments:
OHA Warning Letter to Senator Kruse
Memo to employees at State Capitol re: compliance with ICAA

PUBLIC HEALTH DEPARTMENT

Health Promotion & Chronic Disease Prevention
Kate Brown, Governor

WARNING LETTER
May 16, 2016

800 NE Oregon Street, Suite 730

Portland, OR97232
(e71 ) 673-0984
(971 ) 673-0994 Fax

Senator Jeff Kruse

900 Court St. NE, S-315
Salem. OR 97301
Dear Senator Kruse.
This Warning Letter is notification from the Oregon Health Authority (OHA)that you may be in violation of
Oregon's Indoor Clean Air Act (ICAA) ORS 431.835-433.875 and 433.990(5).
Oregon's ICAA protects nearly every Oregon employee and people in public places from the health risks
of secondhand smoke. The ICAA prohibits smoking, vaporizing or aerosolizing indoors in places of
employment, indoor public places and within 10 feet of all entrances, exits, accessibility ramps that lead
to and from an entrance or exit, windows and air-intake vents.
On May 9, 2016 OHA received a summary of complaints describing eye-witness accounts of you smoking
in youroffice and in yourvehicle, inthe enclosed parking garage, atthe State Capitol during the 2016
legislative session. Based on the complaints received; you could be in violation of

OAR 333-015-0078(1)(a) - Smoking, aerosolizing, vaporizing or carrying a lighted smoking

instrument or inhalant delivery system in an area where smoking, aerosolizing or vaporizing of
inhalants is prohibited;

The ICAA is a complaint-driven law. lf OHA receives additional complaints about your violation of the
ICAA, OHA may pursue civil penalties (ORS 433.855, 433,860),
lf you have any questions about this letter or the ICAA, please contact me at karen.e,oirard@state.or,us

or (971) 673-1046. Thank you for your cooperation.

Sincerely,

(nran }u-or'il.
Karen Girard, MPA
Health Promotion and Chronic Disease Section Manager
Public Health Division
Oregon Health Authority
CC:

Lore Christopher, Human Resources Director, Oregon Legislature

Dexter Johnson, Legislative Counsel, Oregon Legislature
BethAnne Darby, External Relations Director, Oregon Health Authority
Shannon O'Fallon, Senior Assistant Attorney General, Department of Justice

PUBLIC HEALTH DIVISION

Kate Brown, Governor

Public Health Division, Oregon Health Authority

Memorandum
To:

Legislative Administration Committee Employees

From:

BethAnne Darby, External Relations Director, Oregon Health Authority

CC:

Karen Girard, Section Manager, Health Promotion and Chronic Disease Prevention, Oregon
Public Health Division

Date:

May 23, 2016

Subject:

Oregon Indoor Clean Air Act (ICAA) and the State Capitol

Oregon Indoor Clean Air Act (ICAA)

Oregon's Indoor Clean Air Act (ICAA) protects nearly every Oregonian from the health risks of
secondhand smoke in workplaces and public places. The ICAA prohibits smoking, aerosolizing
and vaporizing of inhalants indoors in places of employment, indoor public places and within
10 feet of all entrances, exits, accessibility ramps that lead to and from an entrance or exit,
windows and air-intake vents.
ICAA Enforcement
The Oregon Health Authority (OHA) has enforcement authority for the ICAA. Enforcement
protocols are outlined in OAR 333-015-075. OHA works with businesses, public places and
places of employment to help them comply with the law and follow procedures for actionable
complaints.
The ICAA is a complaint-driven law. Employees at the State Capitol who observe violations of
the law should file complaints with the Oregon Health Authority. Information about the
complaint process is available online at http://www.healthoregon.org/morefreshair.
Complaints can be submitted by:
1. Completing an online complaint form at
http://public.health.oregon.gov/PreventionWellness/TobaccoPrevention/SmokefreeW
orkplaceLaw/Pages/complaints.aspx or
2. Calling 1-866-621-6107.
Compliance with the law
Compliance with the law can be promoted by:
OHA 0196 (3/12)

Talking with your coworkers about the law.

Informing coworkers, and the public, about the law when violations are observed.
Ensuring no smoking or vaping within 10 feet signs are posted at all building entrances
and exits.
Removing ashtrays and other receptacles for smoking debris (e.g. butts, ashes) and
inhalant delivery system debris (e.g. e-liquid containers, packaging) from outdoor
locations within 10 feet of entrances, exits, accessibility ramps, windows or ventilation
intakes.
Encouraging coworkers who smoke or vaporize to quit.
o Encourage them to call Oregon's toll-free QUIT LINE at 800-QUIT-NOW (800784-8669) or, for Spanish speakers, 1.855.DEJELO-YA (1.855.335356.92)
o Or go to www.quitnow.net/oregon or www.quitnow.net/oregonsp (Spanish).

Legal Action
If compliance is not achieved and maintained, then OHA may issue civil penalties or pursue
further legal actions against individual violators of the ICAA (ORS 433.855, 433.860).