CHAPTER 287

FORMERLY

HOUSE BILL NO. 33

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO LIMITING EXPOSURE TO TOBACCO SMOKE IN PUBLIC PLACES THROUGH THE CREATION OF A CLEAN INDOOR AIR ACT.

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

Section 1. Amend Title 16 of the Delaware Code by adding a new Chapter 29 to read as follows:

"CHAPTER 29. CLEAN INDOOR AIR ACT §2901. Legislative Intent.

The General Assembly finds that it is in the best interest of the people of this State to protect non-smokers from involuntary exposure to environmental tobacco smoke in most indoor areas open to the public, public meetings, foods service establishments, and places of employment.

The General Assembly recognizes that a balance should be struck between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into and regulation of private spheres of conduct and choice with respect to the use or nonuse of tobacco products in certain designated public areas and in private places. Therefore, the General Assembly declares that the purpose of this Act is to preserve and improve the health, comfort and environment of the people of this State by limiting exposure to tobacco smoke.

§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) 'Auditorium' means the part of a public building where an audience
sits but does not include any corridors, hallways or lobbies adjacent thereto.

(b) 'Bar' means any indoor area open to the public operated primarily
for the sale and service of alcoholic beverages for on-premises consumption and where the service of food is secondary to the consumption of such beverages. An establishment which has been licensed by the Delaware Alcoholic Beverage Control Commission as a 'taproom' as that term is defined in Title 4 of the Delaware Code, shall be considered a 'bar' for purposes of the application of the provisions of this Chapter.

(c) 'Employer' means any person, partnership, association, corporation or nonprofit entity that employs one or more persons, including the legislative, executive, and judicial branches of state government; any county, city, town, village or any other political subdivision of the state, public improvement or special district, public authority, commission, agency or public benefit corporation; or any other separate corporate instrumentality or unit of state or local government.

(d) 'Food service establishment' means any indoor area open to the
public or portion thereof in which the principal business is the sale of food for on-premises consumption and that has an indoor seating capacity of greater than fifty persons including, but not limited to restaurants, cafeterias, coffee shops, diners, sandwich shops or short order cafes. A food service establishment shall not include the bar area of such establishment. An establishment which has been licensed by the Delaware Alcoholic Beverage Control Commission as a 'restaurant' as that term is defined in Title 4 of the Delaware Code, shall be considered a 'food service establishment' for purposes of the application of the provisions of this Chapter.

(a) 'Indoor area open to the public' means any indoor area or portion thereof generally accessible to the public.

(f) 'Place of employment' means any indoor area or portion thereof under the control of an employer in which employees of the employer perform services but that is not generally accessible to the public.

(g) 'Public building' means any building owned or operated by the state, including the legislative, executive, and judicial branches of state government; any county, city, town, village or any other political subdivision of the state, public improvement or special district, public authority, commission, agency or public benefit corporation; or any other separate corporate instrumentality or unit of state or local government.

(h) 'Public meeting' means all meetings open to the public pursuant to the laws of Delaware and its political subdivisions.

(i) 'Smoke-free work area' means an indoor area in a place of employment where no smoking occurs. Such area shall be clearly designated and separate from any smoking area.

(j) 'Smoking' means the burning of a lighted cigarette, cigar, pipe or any other matter or substance that contains tobacco.

(k) 'Smoking area means an enclosed indoor area in which smoking is permitted. Such smoking area shall be clearly designated and separate from any area in which smoking is not permitted. In a place of employment, the smoking area shall be separated from a smoke-free work area by walls or some other means equally effective in reducing the effects of smoke on the smoke-free work area, other than ventilation systems or air cleaning devices.

(1) 'Tobacco business' means a sole proprietorship, corporation,

partnership or other enterprise engaged primarily in the sale, manufacture or promotion of tobacco, tobacco products and accessories either at wholesale or retail, and in which the sale, manufacture or promotion of other products is merely incidental.

(m) 'Work area' means an area in a place of employment where one or more employees are routinely assigned and perform services for their employer.

§2903. Smoking restrictions.

(a) Smoking shall not be permitted and no person shall smoke in the following public places:

(1) public meetings;

(2) elevators;

(3) government owned and/or operated means of mass transportation when occupied by passengers, including buses, vans, trains, taxicabs, and limousines;

(4) public indoor areas of grocery stores with greater than 5,000 square feet;

(5) gymnasiums;

(6) jury waiting and deliberation rooms; and

(7) courtrooms.

(1) child day care facilities other than those located in a single family dwelling;

(1) health care facilities including hospitals, health care clinics, doctor's offices, or other health-care-related facilities, other than a nursing home, boarding care facility, or a licensed residential facility.

(b) Smoking shall not be permitted and no person shall smoke in any public place, except in designated areas. 'Public place' is any indoor area open to the public, exclusive of lobbies, including but not limited to:

(1) public buildings;

(2) auditoria;

(3) theaters;

(4) museums;

(1) libraries;

(2) all public schools, exclusive of faculty lounges and private offices including elementary and secondary schools; except as modified by negotiated contract;

(3) other educational and vocational institutions exclusive of faculty lounges and private offices, except as modified by negotiated contract;

(4) food service establishments.

(c) The owner, operator or manager of an indoor area open to the public subject to subsection (b) of this section may designate a smoking area or areas. Such smoking area shall not include any of the indoor areas open to the public set forth in subsection (a) of this section.

(d) The owner, operator or manager of a food service establishment:

(1) shall designate a nonsmoking area sufficient to meet customer demand and shall not determine that no such demand exists;

(2) shall prominently post notice at each entrance advising that a nonsmoking section is available, and each patron shall be given an opportunity to state his preference; and,

(3) may designate a separate enclosed room or rooms without a nonsmoking area.

(e) Each employer shall adopt and implement a written smoking policy that contains at least the following:

(1) that employers shall provide a work area where no smoking occurs for each employee who requests one;

(2) that employers may set aside a work area for smoking;

(3) that employers shall provide for nonsmoking areas in employee cafeterias, lunch rooms and lounges. The nonsmoking areas in
employee cafeterias and lunchrooms shall be sufficient to meet employee demand.

§2904. Smoking restrictions inapplicable.

This chapter shall not apply to:

(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) Enclosed private boxes in indoor arenas;

(e) A hotel or motel room rented to one or more guests;

(f) Bars; and

(g) Tobacco businesses.

§2905. Posting of signs.

'Smoking' or 'No Smoking' signs, or the international 'No Smoking' symbol, which consists of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it, shall be prominently posted and properly maintained where smoking is regulated by this Chapter, by the owner, operator, manager or other person having control of such indoor area.

§2906. Implementation; rules and regulations.

(a) The Department of Labor shall adopt rules and regulations as are necessary and reasonable to implement the provisions of this Chapter as they apply to employers, employees, places of employment and the work place.

(b) The State Board of Public Health shall adopt rules and regulations as are necessary and reasonable to implement the remaining provisions of this Chapter not affecting employers, employees and the work place.

(c) The Department of Labor and the State Board of Health shall in the effectuation and implementation of the provisions of this Chapter balance and accommodate the legitimate health concerns of nonsmokers with the privacy and freedom of choice concerns of consumers of tobacco products. The State Board of Health and the Department of Labor may upon request waive the provisions of this Chapter if they determine there are compelling reasons to do so, and such waiver will not significantly affect the health and comfort of nonconsumers of tobacco products.

§2907. Administrative Penalties.

Any person who violates any provision of this Chapter or any rule or regulation promulgated pursuant thereto shall be subject to an administrative penalty of $25 for a first violation and not less than $50 for each subsequent violation.

§2908. Preemption.

"(a) The provisions of this Chapter shall preempt and supersede any provisions of any municipal or county ordinance or regulation on the subject of this Chapter enacted or adopted after the effective date of this Chapter."

Section 2. If any provision of this Act or any portion thereof or the application or method of implementation is held invalid, the remainder of the Act or portion of any provision thereof to other persons or circumstances, shall not be affected by such holding and shall remain in full force and effect.

Section 3. This Act shall become effective upon enactment into law.

Approved June 28, 1994.