DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Nature Of The Proceedings:
Clean Indoor Air Act Regulations
Delaware Health and Social Services (“DHSS”) initiated proceedings to adopt State of Delaware Clean Indoor Air Act Regulations. The DHSS proceedings to adopt regulations were initiated pursuant to 29 Delaware Code Chapter 101 and authority as prescribed by 16 Delaware Code, Chapter 29.
On September 1, 2002 (Volume 6, Issue 3), DHSS published in the Delaware Register of Regulations its notice of proposed regulations, pursuant to 29 Delaware Code Section 10115. It requested that written materials and suggestions from the public concerning the proposed regulations be delivered to DHSS by October 1, 2002, or be presented at public hearings on September 25 & 26, 2002, after which time DHSS would review information, factual evidence and public comment to the said proposed regulations.
Verbal and written comments were received during the public comment period and evaluated. The results of that evaluation are summarized in the accompanying “Summary of Evidence.”
Findings Of Fact:
The Department finds that the proposed regulations, as set forth in the attached copy should be adopted in the best interest of the general public of the State of Delaware.
The proposed regulations include modifications from those published in the September 1, 2002, Register of Regulations, based on comments received during the public notice period. These modifications are deemed not to be substantive in nature.
THEREFORE, IT IS ORDERED, that the proposed State of Delaware Clean Indoor Air Act Regulations are adopted and shall become effective November 27, 2002, after publication of the final regulation in the Delaware Register of Regulations.
Vincent P. Meconi, Secretary
October 11, 2002
Summary Of Evidence
State Of Delaware Clean Indoor Air Act Regulations
Two public hearings were held, one on September 25, 2002 at 7:00 p.m., in room A114, Delaware Technical and Community College, Stanton Campus, 400 Stanton-Christiana Road, Newark, Delaware; and the other on September 26, 2002 at 7:00 p.m., in the Department of Natural Resources and Environmental Control (DNREC) Auditorium, Richardson and Robbins Building, 89 Kings Highway, Dover, Delaware before David P. Walton, Hearing Officer, to discuss the proposed Department of Health and Social Services (DHSS) Clean Indoor Air Act Regulations. Announcements regarding the public hearings were advertised in the Delaware State News, The News Journal and the Delaware Register of Regulations in accordance with Delaware Law. Mr. Kevin Charles from Health Systems Protection (HSP) Section of the Division of Public Health (DPH) made the agency’s presentation. Attendees were allowed and encouraged to discuss and ask questions regarding all sections of the proposed regulations. Public testimony was given at both public hearings and four letters were received commenting on the proposed regulations during the public comment period (September 1 through October 1, 2002). In addition to members of the general public, organizations that commented include:
• Bayview Inn
• Alfred I. DuPont Hospital for Children
• Capitol Billiards
• Hi Ho Tavern
• FORCES DELAWARE (Delmarva Smokers)
• WT Smithers
• Bank Shots
• Healthy Delaware Foundation
• Dover Downs, Inc.
• Delaware Hotel & Lodging Association
• Route 40 Corridor Alliance
• Shawnee Country Club
• Clayton Tavern
All public comments and the DHSS (Agency) responses are as follows:
• There was a request that regulations developed to implement the Clean Indoor Air Act include that a waiver will be granted for any facility that meets the following requirements:
1. The facility is used only for the purpose of smoking as defined by the Act.
2. The facility is physically separate from any facility used by the general public.
3. The facility is prominently designated by signage to be only for the purpose of smoking.
4. The facility is prominently designated by signage to restricted from admission by minors.
5. No business, social, or other use may be conducted in the facility.
Agency Response: The department does not intend to adopt conditions to grant waivers from the Clean Indoor Air Act (CIAA). The waiver provisions of the CIAA Regulations are clear in Section 99.106 and are reflective of the law. A waiver request must be in writing to the agency, must provide compelling reasons to grant such a waiver, and granting such a waiver must not significantly affect the health and comfort of non consumers of tobacco products. Each waiver request will be considered on a case-by-case basis.
• There were general questions about the law: Who will enforce the law? Will you hire special people to enforce the law? Will there be people out writing tickets?
Agency Response: In public places the law will be enforced by the Department of Health and Social Services and in the work environment the Department of Labor will enforce the law. There will not be people writing tickets, and no special people will be hired to enforce this law. The enforcement process will be complaint driven and an investigation will be conducted to clarify and substantiate violations of the CIAA. There will be an 800 number established for CIAA complaints and each credible complaint will be investigated and followed-up. Credible complaints include those where a verifiable contact information is provided by a complainant. The department will not act on anonymous complaints.
• Who will get fined if someone is smoking in an establishment?
Agency Response: Based on the investigation, if substantiated, the smoker may be fined and/or the owner if that person did not make a good faith effort to prevent smoking in their establishment.
• What if the person smoking refuses to stop smoking in my establishment?
Agency Response: If the owner/management has made a good faith effort to inform the patron of the smoking violation and has asked them to cease and desist, the owner has the right to ask the patron to leave the establishment. If patron refuses to leave upon request, then it may become a matter of trespassing or disorderly conduct and law enforcement may have to be involved. DHSS is working with the state's law enforcement community to develop a list of actions that owners or management can follow to address smokers who unknowingly light up to smoke as well as those who are openly defiant of the law. It is important to note that DHSS does not advocate, nor expect owners/management to become physically involved with patrons over this law. The Department’s intention is to work with owners/management of these facilities and law enforcement before and after the implementation of this law.
• Are bars going to be allowed to sell cigarettes?
Agency Response: The Clean Indoor Air Act does not prohibit the sale of cigarettes in bars.
• There are some restaurants that do not allow employees to leave the building due to security concerns. Would these employees be permitted to file a grievance with the Department of Labor and would this be a reason that an indoor smoking area would be permitted?
Agency Response: During the public hearing, this person was referred to the Department of Labor for both of these issues.
• Is there any lessening of the regulation for handicapped patrons?
Agency Response: The law does not make exceptions for those with disabilities.
• There were some clarification questions about the definition of enclosed indoor area in the regulations and how it applies to covered patios and areas covered by canopies.
Agency Response: Patios that are covered with canopies or other material that are partially open or partially closed to the outside are not considered enclosed indoor areas, thus smoking is not prohibited in these areas by the regulation.
• Are you going to send out a booklet to all owners of restaurants, bars, taprooms of what we're suppose to do, of your rules and regulations to make sure everybody knows what you want us to do?
Agency Response: Yes. There is an on-going effort to do outreach to facilities so they understand how to comply with the law. This includes four informational workshops planned for October and information packets that will be mailed to businesses to help them understand how to comply with the law.
• If a waiver is requested, will there be a written response?
Agency Response: Yes, DHSS will respond in writing to all written waiver requests.
• An owner of a billiard hall, which does not serve alcohol, wanted to know how the CIAA applies to a private club? Can I convert my business to a private club, charge a membership fee to by a member of my billiard club? Can I legally do that in Delaware?
Agency Response: The Department is requesting an opinion from the Attorney General regarding the application of the law to private clubs in the state. Due to the importance of ensuring that the intent of the law as it relates to private clubs is correctly reflected in the regulations, the department will defer any answers to such questions until such time as the Attorney General has had an opportunity to issue an opinion.
• Another business owner wanted to now how this law applies to private country clubs?
Agency Response: See above.
• There was another question asking whether the Act would ban smoking during regular business operations of the American Legion Post, the Veterans of Foreign (VFW) Post and the Elk's Clubs in Delaware.
Agency Response: If the establishment meets the definition of “Fraternal Benefit Society” in 18 DE Code, sec. 6201, then it is exempt from smoking restrictions.
• There was a comment that DHSS attempted to rewrite the bill and went beyond their delegated scope of responsibility when developing Section 99.202 of the regulation. Section 99.202 states that: "No owner of any indoor enclosed area subject to 16 Delaware Code, Chapter 29 and/or person(s) responsible for the management of such area or employees thereof, shall permit or authorize smoking by any person(s) in areas not designated specifically for the smoking of tobacco products as permitted by Section 99.301."
Agency Response: Based on our Deputy Attorney General's review of the law and Section 99.202 of these proposed regulations, it was determined that DHSS does have the authority to require responsible parties to take reasonable steps to prevent smoking in non-smoking indoor enclosed areas.
• Section 99.107.3, the definition of "Enclosed Indoor Area" should be amended to provide the following after the word "enclosed": "except for normal means of access and egress through doors or passageways." As the proposed regulations are worded, only a space which had no means of access or egress would qualify as an enclosed area. The intent was to differentiate an enclosed area from an area more akin to a lobby or one only defined by a railing or a partial partition.
Agency Response: Based on this comment, Section 99.107.3, the definition of “Enclosed Indoor Area” was amended for clarity purposes.
• Section 99.107.5, the definition of "Private Social Function" should be reworded as follows: "means a function to which the public is neither invited or generally permitted access and which is held in a separate enclosed indoor area." The reason for the change is to make it clear that it is the private nature of the function and not the non-public nature of the enclosed area that is determinative. Many private functions are held in hotel meeting rooms and ballrooms, which are areas to which the public is invited, although not at the time of the particular private function. It is also important that the regulations recognize that there are cases where the public may come briefly into a private function without being an invitee. This happens in hotels when a prospective user of a space may be shown the space discreetly even while another client's function is underway. The prospective user is certainly not an invitee, but this kind of routine and brief introduction of the public should not cause the function to lose its status as a "private social function", thus the suggested wording "generally permitted".
Agency Response: Based on this comment, Section 99.107.5, the definition of “Private Social Function” was amended for clarity purposes.
• Section 99.201A: The definitions of the scope of the prohibition go beyond the provisions of the statute. SB 99 provides in Section 7 that §2903, Chapter 29, Title 16, Delaware Code now reads as follows: " . . .smoking shall not be permitted and no person shall smoke in any indoor enclosed area to which the general public is invited or in which the general public is permitted (emphasis supplied)." The proposed regulations broaden this clear definition and substitute a vague and ambiguous standard of "open to the public or generally accessible to the public." The proposed regulations should be amended to use the language of the statute.
Agency Response: Based on this comment, Section 99.201A, has been amended to match the statutory language used in the Act.
• In regards to Section 99. 202 ad Section 99.5, generally: The practical problem of enforcement in a hotel setting will arise as a result of guests who ignore prohibitions on smoking in non-smoking sleeping rooms. Most hotel rooms are already non-smoking and usually have signage to that effect on the door and/or on the desk or dresser, as well as not having ashtrays in the room. When checking in, guests are told that the room they have been assigned is a non-smoking room. Despite all this, guests who want to smoke will and do in whatever room they're in, regardless of signs, etc. However, hotels are private and catering to guests is our lifeblood. We do not want to be in the position of having to have hotel employees intrude and police private conduct in our non-smoking rooms. In order to avoid problems of interpretation regarding what "permit" or "authorize" means under Section 99.202 in these hotel sleeping room cases, we recommend that language be added to make it clear that a hotel and its employees meets its obligations not to permit or authorize smoking in its non-smoking sleeping rooms by posting the signs required by Section 99.401. I suggest that Section 99.401 be amended to add the following language: " A hotel or other lodging facility that posts the signs required by this Section at non-smoking guest sleeping rooms and advises guests upon check-in that such rooms are non-smoking shall be deemed to have complied with Section 99.202 with respect to such rooms."
Agency Response: As a point of clarification, Section 99.401 of the regulations calls for signs that read “Warning: Smoking Permitted” at or in the rooms of a hotel where smoking is permitted. While we recognize it is in the best interest of the hotel and its guests to clearly identify non-smoking rooms by signage and notifying guests upon check-in, these actions in and of themselves may not be satisfactory in all situations. For example, if a guest in a non-smoking room, next to a another non-smoking room in which the occupant is smoking complains to the front desk, it would be reasonable to expect hotel management to contact the occupant smoking in a non-smoking room and advise them of the law and not to smoke. Not only would this be a reasonable and an appropriate action on the hotel’s part, it would protect non-smokers from the effects of second-hand smoke and be in the best interest of the hotel. While hotel management is not expected to disrupt their guest’s privacy, they are expected to take reasonable actions to not permit smoking in prohibited areas according to the CIAA.
There were general comments against the law and how it takes away smokers' rights and freedom. There were also comments about facility owners who have spent significant amount of money on air cleaners specifically to reduce smoke in their facility. Others insisted the law would also hurt business by deterring smokers from frequenting non-smoking establishments. Some asked, why weren't other model laws followed like Massachusetts, which says the townships decide whether you smoke or don't smoke in establishments. In Maryland, you can smoke in the bars but not in the restaurant proper. There were also comments refuting published statistical data available on smoking related deaths and second-hand smoke deaths.
There were general comments for the law, how it will protect the public's health from the damaging effects of second-hand smoke. Others said the law is good for businesses, because more people would be apt to frequent establishments that are smoke-free. Some in favor of the law said in a year or two, non-smoking in public places will be the social norm and that education and awareness is the key to successful implementation of this law.
Minor amendments were made to the proposed regulations based on public comment; these amendments are not substantive in nature. Additionally, some grammatical amendments were made to the proposed regulations.
The public comment period was open from September 1, 2002 to October 1, 2002.
Verifying documents are attached to the Hearing Officer’s record. These regulation have been approved by the Delaware Attorney General’s office and the Cabinet Secretary of DHSS.
State Of Delaware
Clean Indoor Air Act Regulations
Section 99.1 GENERAL PROVISIONS
99.101 Preamble
These Regulations are adopted in accordance with authority vested in the Secretary, Department of Health and Social Services, by 16 Delaware Code Chapter 29 §2906(b). These Regulations establish standards for the enforcement of the Clean Indoor Air Act as it relates to most indoor enclosed areas to which the general public is invited or in which the general public is permitted. Regulations establishing standards for the enforcement of the Clean Indoor Air Act affecting employers, employees and the workplace are adopted by the Department of Labor.
99.102 Purpose
These regulations shall be construed and applied to protect the nonsmoker from involuntary exposure to environmental tobacco smoke in most enclosed indoor areas to which the public is invited or in which the general public is permitted. The purpose of the Clean Indoor Air Act is to preserve and improve the health, comfort and environment of the people of this State by limiting exposure to tobacco smoke.
99.103 Severability
In the event any particular clause or section of the regulations should be declared invalid or unconstitutional by any court of competent jurisdiction, the remaining portions shall remain in full force and effect.
99.104 Date of Effect
These regulations shall be effective November 27, 2002
99.105 Inspections
The Secretary, DHSS, or authorized designee shall have right of entry into any enclosed indoor area subject to 16 Delaware Code Chapter 29.
99.106 Waiver
The Department of Health and Social Services may upon written request waive the provisions of these Regulations if the Department determines there are compelling reasons to do so, and such waiver will not significantly affect the health and comfort of non-consumers of tobacco products.
99.107 Definitions
The following words, terms, and phrases, when used in these regulations, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning.
For the purposes of these Regulations:
99.107.1 “Department” means the Delaware Health and Social Services (DHSS) as defined in Title 29, Section 7901. of the Delaware Code.
99.107.2 “Environmental tobacco smoke” (ETS), or "secondhand smoke" is the complex mixture formed from the escaping smoke of a burning tobacco product (termed as sidestream smoke) and smoke exhaled by the smoker. Exposure to ETS is also frequently referred to as "passive smoking" or "involuntary smoking."
99.107.3 “Enclosed Indoor Area” means an indoor area that is neither open nor partially enclosed [., except for normal means of access and egress through doors or passageways.]
99.107.4 “Fraternal Benefit Society” means any incorporated society, order or supreme lodge, without capital stock, including one exempted under the provisions of 18 Delaware Code 6237(a)(2) of this title, whether incorporated or not, conducted solely for the benefit of its members and their beneficiaries and not for profit, operated on a lodge system with ritualistic form of work, having a representative form of government and which provides benefits in accordance with this chapter, is hereby declared to be a fraternal benefit society.
99.107.5 “Private social function” means a function [to which the public is neither invited or generally permitted access and which is] held in separate indoor enclosed indoor area [to which the public is neither invited nor permitted access.]
99.107.6 “Public transportation of children” means transportation which involves the transportation of children by a vehicle under the control of a daycare, school or other organizations.
99.107.7 “Secretary” means the Administrator of the Delaware Department of Health and Social Services (DHSS) of the State of Delaware, who shall hereafter in this document be referred to as: Secretary; The Secretary; or, Secretary, DHSS.
99.107.8 “Smoking” means the burning of a lighted cigarette, cigar, pipe or any other matter or substance that contains tobacco.
99.107.9 “Volunteer fire company” means a fire, ambulance, or rescue company recognized as such by the Delaware State Fire Prevention Commission.
99.2 SMOKING PROHIBITIONS
99.201 Except as is provided in 99.301 of these regulations, and in order to reduce the levels of exposure to environmental tobacco smoke, smoking shall not be permitted and no person shall smoke in any of the following areas:
A. Any enclosed indoor area [open to the public or portion thereof generally accessible to the public to which the general public is invited or in which the general public is permitted.]
B. Government owned and/or operated means of mass transportation including buses, vans, trains, taxicabs and limousines[.]
C. Any private vehicle used for the public transportation of children or as part of health care or day care transportation.
D. In private homes or private residences when such homes or residences are being used for child care or day care[.]
99.202 No owner of any indoor enclosed area subject to 16 Delaware Code Chapter 29 and/or person(s) responsible for the management of such area or employee thereof, shall permit or authorize smoking by any person(s) in areas not designated specifically for the smoking of tobacco products as permitted by Section 99.301.
99.3 SMOKING PROHIBITIONS INAPPLICABLE
99.301 Smoking prohibitions shall not apply in the following:
A. Private homes, private residences and private automobiles,
B. Any indoor area where private social functions are being held when seating arrangements are under the control of the sponsor of the function and not the owner, operator, manager or person in charge of such indoor area;
C. Limousines under private hire
D. A hotel or motel room rented to 1 or more guests provided that the total percentage of such hotel or motel rooms does not exceed twenty-five percent (25%).
E. Any fund raising activity or function sponsored by a volunteer fire company, auxiliary of a fire company, or a volunteer ambulance or volunteer rescue company; provided, however, that the fund raising activity or function takes place upon property owned or leased by the volunteer fire, rescue or ambulance company.
F. Any fund raising activity or function sponsored by a fraternal benefit society as defined by 18 Delaware Code §6201; provided, however, that the fund raising activity or function takes place upon property owned or leased by said organization.
99.4 POSTING OF SIGNS
99.401 Failure to Properly Post and Maintain Signs
Owners, operators, managers or other person(s) having control of enclosed indoor areas subject to the regulations of 16 Delaware Code Chapter 29 shall post signs which indicate “Warning: Smoking Permitted” prominently to indicate those locations where smoking is permitted pursuant to Regulation 99.301. Failure to prominently post properly maintained signs with letters at least one (1) inch in height and in accord with the CLEAN INDOOR AIR ACT shall be a violation subject to administrative penalties as set forth in Regulation 99.50[2 1] of the Clean Indoor Air Act Regulations.
99.5 COMPLIANCE AND ENFORCEMENT PROCEDURES
99.501 Administrative Penalties
Whoever violates any provision of these regulations shall be subject to an administrative penalty of $100.00 for the first violation and not less then $250.00 for each subsequent violation.
99.502 Right to Administrative Hearing
Upon due notice that the Department intends to assess an administrative penalty, as indicated in 99.501, the entity may submit to the Division, within thirty (30) days of the date of such notice of intent, a written request for an administrative hearing.
99.503 Orders of the Department
Whoever refuses, fails or neglects to perform the duties required under these regulations or violates, neglects or fails to comply with the duly adopted regulations or orders of the Dept. of Health and Social Services, shall be fined not less than $100.00 and not more than $1,000.00, together with cost, unless otherwise provided by law.