SPONSOR:

Sen. Bunting

DELAWARE STATE SENATE

141st GENERAL ASSEMBLY

SENATE BILL NO. 93

AN ACT TO AMEND CHAPTER 29, TITLE 16 OF THE DELAWARE CODE RELATING TO THE CLEAN INDOOR AIR ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 29, Title 16 of the Delaware Code by striking §2902, §2903, and §2904, and substituting in lieu thereof the following:

"§2902. Definitions.

The following words, terms and phrases, when used in this chapter, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:

(a) "Eating and drinking establishment" shall mean any enterprise that prepares or sells food or drink for human consumption on or off the premises, and including but not limited to:

(1) any restaurant, coffee shop, retail market, cafeteria, short-order café, luncheonette, tavern, sandwich stand, soda fountain; and

(2) any food service facility in an industry, institution, hospital, club, school, church, catering kitchen or camp.

(b) "Employee" shall mean any person who regularly provides services to a business for compensation. The word "employee" includes a temporary or part-time employee, contractor or consultant.

(d) "Health care facility" shall mean any office or institution where individual care or treatment of physical, mental, or emotional illness, or any other medical, physiological, or psychological condition is provided. The term "health care facility" shall include any hospital, clinic, nursing home for the aging or chronically ill, laboratory, or office of any physician, dentist, psychologist, psychiatrist, physiologist, podiatrist, optometrist or optician.

(e) "Person" shall mean any individual, firm, partnership, association, corporation, company, or organization of any kind.

(f) "Public area" or "public place" shall include any enclosed area in which members of the public are normally invited or permitted.

(g) "Public meeting" shall mean any meeting wherever held, open to the public with no membership requirement.

(h) "Rail transit station" shall mean any area in such station that:

(1) includes any area where fares are paid and any roofed area servicing the station;

(2) is a regular stopping place for the pickup and discharge of passengers in regular (fixed) route service, contract service, or other special services, including emergency services;

(3) is owned, operated, or controlled by a transportation agency of the State of Delaware.

(i) "Retail store" shall mean any establishment whose primary purpose is to sell merchandise or food for consumption off the premises, directly to consumers.

(j) "Shared workplace" shall mean a workplace or part of a workplace that is regularly used by more than one employee.

(k) "Smoking" shall mean the act of lighting, smoking, or carrying a lighted or smoldering cigar, cigarette, or pipe, of any kind.

(l) "Tobacco shop" shall mean any store that primarily sells tobacco, tobacco products and pipes or other implements used to smoke tobacco. The term "Tobacco shop" shall not include an area of a larger store in which tobacco is sold.

(m) "Workplace" shall mean an enclosed area or any part of an enclosed area used in the performance of employment or related activities. The word "Workplace" includes a motor vehicle owned or leased by the employer; and includes any conference room, auditorium, library, office machine station, lunchroom, vending area, locker room, lounge, hallway, or stairwell.

§2903. Smoking prohibited in certain areas or public places.

(a) Smoking is not permitted, and no person shall smoke in any:

(1) elevator, regardless of capacity, except elevators in single-family dwellings as provided by state law;

(2) health care facility, regardless of capacity, except:

a. in the private, enclosed sleeping or living quarters of persons working in a health care facility where patients and members of the public are not normally present; and

b. in patient sleeping quarters, if:

1. all patients assigned to the room have agreed to have the room designated as a smoking area;

2. the administrator of the facility, or the designee of such administrator, has designated the room as a smoking area; and

3. a reasonable effort is made to assign patients to sleeping rooms according to the patient's nonsmoking or smoking preference;

(3) school or other educational facility operated by the State of Delaware or any public school district, except when expressly permitted under state law;

(4) building or part of a building owned or leased by the State or any subdivision thereof, and any private building or part of a building during a public meeting called by a government body;

(5) theatre (other than a dinner theatre) or movie theatre;

(6) State government workplace, including any privately-owned workplace where State employees are regularly assigned;

(7) rail transit station;

(8) the public area of any business or organization open to the public, including any retail store, bank, office, factory, or any other private business or organization except:

a. an eating and drinking establishment;

b. when the public area is being used exclusively for a private function. A private function is an event open only to persons specifically invited, not to the general public, and in which the entire public area is under the control of the sponsor of the event;

c. a public reception area of a professional office operated by a sole practitioner; or

d. a retail store in which not more than 2 persons work at any time;

(9) restroom, except a restroom in a private residence; or

(10) enclosed auditorium, concert or lecture hall when it is open to the public, or

(11) shared workplace in a retail store, bank, office, factory, or any other private business, except:

a. a business in which not more than 2 persons work at any time;

b. a shared workplace in a private residence where members of the public are not regularly invited; or

c. a shared workplace in a public area of an eating and drinking establishment.

§2904. Exceptions to smoking restrictions.

(a) Smoking is not prohibited by this Chapter:

(1) when any public area in which smoking is prohibited under §2903 is closed to the public, unless the public area is also a shared workplace;

(2) in that part of a large, open indoor space (such as a hotel or theater lobby, shopping mall, bowling alley, office reception area, or transportation waiting area) that is designated as a smoking area. Any smoking area designated within a large, open indoor space must:

a. consist of less than 20% (in a bowling alley, less than 40%) of the open indoor space in which it is located, or a lower percentage specified in applicable State, County or Municipal regulations;

b. not be located in the center of the open indoor space or in an area that the public must pass through to gain access to an office, store, restroom or other essential part of the building;

c. use barriers and ventilation systems, where practical, to minimize the effects of smoke in adjacent areas; and

d. conform to all applicable State, County or Municipal regulations that include criteria for size of the open space, size and location of the smoking area, and adequacy of ventilation.

(3) in barbershops and beauty salons in which not more than two (2) persons work at any time, and in tobacco shops a tobacco shop;

(4) in a vehicle, when used in the course of employment and occupied by only one individual;

(5) when smoking is necessary to the conduct of scientific research into the health effects of tobacco smoke and is conducted at an analytical or educational laboratory;

(6) in private, enclosed offices (except offices in a State government workplace) where members of the public are not normally present and when the door leading to another workplace is closed; provided however, that if the office is a shared workplace, smoking is permitted only if all employees regularly sharing the office agree to permit smoking.

(7) in any part of a workplace where smoking is permitted under the terms of a collective bargaining agreement.

(8) by actors as part of a stage production.

(9) in any part of a private residence which is not open to the public for business purposes;

(10) in up to 40% of the sleeping rooms in a hotel or motel; and

(11) in up to 40% of the premises of a fraternal, religious, patriotic, or charitable organization or corporation or fire company or rescue squad during an event that the organization or corporation holds on its own property and which is open to the public.

(b) Designated smoking areas.

(1) The person in charge of any area specified in this subsection may designate separate areas where smoking is permitted. An area shall not be designated as a smoking area if smoking in that area is prohibited by any other law or regulation, or by a fire marshal. In order to accommodate persons who desire to avoid contact with smoke, to the extent possible:

a. those areas which are best served by filters, air changers, other ventilation devices, and convection currents should be reserved as nonsmoking areas; and

b. walls, screens or semi-partitions should be used to help keep a nonsmoking area smoke free, but this subsection does not require construction of walls or other structures.

(2) Designated smoking areas shall not include shared workplaces or areas normally used by members of the public, except:

a. a smoking area designated within a large, open indoor space in accordance with §2904 (a) (2);

b. an enclosed room within a private business, which is not a large, open indoor space defined or described in §2904, and which is used exclusively as a smoking lounge; or

c. an enclosed lunchroom, vending area, locker room, or lounge, if at least one similar, conveniently-located lunchroom, vending area, locker room, or lounge is reserved for nonsmoking employees.

(3) Restrooms and elevators shall not be designated as smoking areas, except that a restroom which is accessible only from a private office may be so designated.

(4) This subsection shall not apply to any State government workplace or other building or part of a building owned or leased by a non-governmental entity or any State subdivision which permits smoking in such workplace.

SYNOPSIS

This Act contains several differences from the present Clean Indoor Air Act, some of which are:

(a) Increased restrictions. This Act has the following new smoking restrictions:

(1) buildings owned or leased by the state or any subdivision thereof;

(2) State government workplaces;

(3) railroad stations;

(4) public business areas, such as retail stores (present §2903(4) already includes grocery stores);

(5) public restrooms; and

(6) workplaces shared by two or more businesses.

(b) The number and type of exceptions are changed. The present Act (§2904) contains seven general exceptions. This Act contains eleven exceptions (excluding "designated smoking areas"). The exceptions under the present Act are also included within this Act, although the wording is different.

(1) Many of the definitions in this Act are more general and inclusive. Thus "eating and drinking establishment" under this Act would include two definitions under the present Act ("bar" and "food service establishment").

(2) Some definitions eliminate present exclusions. For example, the present definition of "health care facility" [§2903(a)(9)] excludes nursing homes, boarding care facilities and similar places from the Act's prohibitions; but these exclusions are not contained in this Act's definition of "health care facility."

Author: George H. Bunting