Nature of the Proceedings
Clean Indoor Air Act Regulations
These attached regulations, "State of Delaware Clean Indoor Air Act Regulations," are being proposed pursuant to the State of Delaware Clean Indoor Air Act (16 Delaware Code, Chapter 29).
These Regulations establish standards for the enforcement of the Clean Indoor Air Act (CIAA) as it relates to most indoor enclosed areas to which the general public is invited or in which the general public is permitted.
Notice of Public Hearing
Health Systems Protection Section, Division of Public Health, Department of Health and Social Services will hold two public hearings to discuss the proposed State of Delaware Clean Indoor Air Act Regulations.
A public hearing will be held on September 25, 2002 at 7:00pm at Delaware Technical & Community College, Stanton Campus, Rm. A114, 400 Stanton-Christiana Road, Newark, Delaware, 19713.
A second public hearing will be held on September 26, 2002 at 7:00 PM in the DNREC Auditorium, Richardson and Robbins Building, 89 Kings Highway, Dover, Delaware.
Copies of the proposed regulations are available for review by calling the following location:
Health Systems Protection Section
Federal and Water Streets
Dover, DE 19903
Telephone: (302) 744-4722
Anyone wishing to present his or her oral comments at these hearings should contact Mr. David P. Walton at (302) 744-4700 by Friday, September 20, 2002. Anyone wishing to submit written comments as a supplement to or in lieu of oral testimony should submit such comments by October 1, 2002 to:
David P. Walton, Hearing Officer
Division of Public Health
P.O. Box 637
Dover, Delaware 19903-0637
STATE OF DELAWARE
CLEAN INDOOR AIR ACT REGULATIONS
TABLE OF CONTENTS
SECTION 99.1 - GENERAL PROVISIONS
99.101 Preamble
99.102 Purpose
99.103 Severability
99.104 Date of Effect
99.105 Inspections
99.106 Waiver
99.107 Definitions
SECTION 99.2 - SMOKING PROHIBITIONS
99.201 Smoking Not Permitted
99.202 Responsibility
SECTION 99.3 - SMOKING PROHIBITIONS INAPPLICABLE
99.301 Smoking Prohibitions Shall Not Apply
SECTION 99.4 - POSTING OF SIGNS
99.401 Failure to Properly Post and Maintain Signs
SECTION 99.5 - COMPLIANCE AND ENFORCEMENT
99.501 Administrative Penalties
99.502 Right to Administrative Hearing
99.503 Orders of the Department
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.
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 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 day-care, 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.
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 99.502 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.