No. 30377 (Amendment): R392-510. Utah Indoor Clean Air Act

DAR File No.: 30377
Filed: 08/29/2007, 03:45
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

S.B. 19 (2006) and H.B. 273 (2007) statutory changes require the Utah Department of Health (UDOH) to modify this rule to conform to statute. Also, additional modifications are being proposed at this time to clarify language and make other changes to the rule as more fully expressed below. (DAR NOTE: S.B. 19 (2006) is found at Chapter 202, Laws of Utah 2006, and was effective 05/01/2006. H.B. 273 (2007) is found at Chapter 20, Laws of Utah 2007, and was effective 04/30/2007.)

Summary of the rule or change:

Language no longer necessary because of changes made to Section 26-38-1 has been deleted, and minor clarification changes requested by local health departments have been added. Deletions include definitions and sections that no longer apply. Clarified language was added regarding the right of proprietors to prohibit smoking on their premise. Work site exemptions for smoking permitted areas that are no longer allowed by statute have been deleted. Language which applied to social, fraternal, and religious organizations has been deleted. Language was added to clarify how the rule applies to educational facilities. The option of using the international no smoking sign has been added. Smoking permitted specifications were clarified and language added regarding public lodging facilities, nursing homes, assisted living facilities, small health care facilities, and hospitals with a certified swing bed program. This includes the requirement to provide permanent smoking and nonsmoking signage, to clean guest rooms that are changed from smoking to nonsmoking, and to clarify the requirement to prohibit mixing of air between smoking and nonsmoking permitted areas.

State statutory or constitutional authorization for this rule:

Subsection 26-1-30(2), Section 26-15-1 et seq., and Title 26, Chapter 38

Anticipated cost or savings to:

the state budget:

There will be no additional cost or savings to state government. Current funding priorities will be shifted to produce appropriate educational materials for businesses, government agencies, and other organizations regarding the changes to the statute and the rule.

local governments:

There will be no effect on local government budgets as education and enforcement of the rule will take place during existing routine inspections. There may be an initial increase in complaints and questions from the general public to local health departments regarding enforcement and educational activities, but complaints and questions should level off over time.

small businesses and persons other than businesses:

Based on the experience of other states who have adopted similar laws, there has been no aggregate loss of revenue to business. Studies have shown that in the beginning, business may lose some revenue, but overall, revenues return over time. It is anticipated that there will be a savings in cleaning costs previously associated with smoking. Also, there could be a potential increase in business revenue due to the elimination of smoking in facilities. There also could be a potential reduction in medical and property insurance costs. The exact amount of savings costs is very difficult, if not impossible, to predict.

Compliance costs for affected persons:

There will likely be no compliance costs associated with the changes proposed in this rule. Businesses may obtain required signage from UDOH or local governments free of charge. Education is being provided to businesses and employees by UDOH, local governments, and other agencies. There may be a compliance cost reduction for governments, businesses and other persons due to the elimination of the requirements of providing separate ventilation exhaust systems for smoking permitted areas. There may be a cost to some businesses that have smoking permitted areas to certify their heating and ventilation systems that have been altered since the prior certification. Estimate of exact costs are very difficult to determine due to the variation of size and number of smoking permitted facilities. As the previous rule did not require businesses to report number or size of smoking permitted areas, there is not a mechanism to determine the number of areas that currently exist.

Comments by the department head on the fiscal impact the rule may have on businesses:

No unacceptable fiscal impact is expected on businesses impacted by this rule change. This will be re-evaluated after the public has an opportunity to comment. David N. Sundwall, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Epidemiology and Laboratory Services, Environmental Services
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY UT 84116-3231

Direct questions regarding this rule to:

Ronald Marsden at the above address, by phone at 801-538-6191, by FAX at 801-538-6564, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/15/2007

This rule may become effective on:

10/22/2007

Authorized by:

David N. Sundwall, Executive Director

RULE TEXT

R392. Health, Epidemiology and Laboratory Services, Environmental Services.

R392-510. Utah Indoor Clean Air Act.

R392-510-1. Authority.

(1) This rule is authorized by Sections 26-1-30(2), [and ]26-15-12, and Title 26 Chapter 38.

(2) This rule does not preempt other restrictions on smoking that are otherwise allowed by law.

 

R392-510-2. Definitions.

The definitions in Section 26-38-2 apply to this rule in addition to the following:[

(1) "AABC" means the Associated Air Balance Council.

(2) "Act" means the Utah Indoor Clean Air Act.]

[(3)](1) "Agent" means the person to [which]whom a building owner has delegated the maintenance and care of the building.

[(4)](2) "Area" means a three dimensional space.

([5]3) "Building" means an entire free standing structure enclosed by exterior walls.

[(6)](4) "Building owner" means the person(s) who has an ownership interest in any public or private building.

[(7)](5) "Employer" means any individual, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which is the personal labor of such person or persons.

[(8)](6) "Enclosed" means space between a floor and ceiling which is designed to be surrounded on all sides at any time by solid walls, screens, windows or similar structures (exclusive of doors and passageways) which extend from the floor to the ceiling.

[(9)](7) "Executive Director" means the Executive Director of the Utah Department of Health or his designee.

[(10)](8) "Facility" means any part of a building, or an entire building.

[(11)](9) "HVAC system" means the collective components of a heating, ventilation and air conditioning system.

[(12)](10) "Local Health Officer" means the director of the jurisdictional local health department as defined in Title 26A, Chapter 1, or his designee.

[(13) "NEBB" means the National Environmental Balancing Bureau.

(14) "Nonpublic workplace" means a workplace where only employees of a single employer are allowed to enter, and no others except persons who perform deliveries, repairs and similar services on an infrequent basis, may enter.

(15)](11) "Nonsmoker" means a person who has not smoked a tobacco product in the preceding 30 days.

[(16)](12) "Operator" means a person who leases a place from a building owner or controls, operates or supervises a place.

[(17)](13) "Place" means any "place of public access", or "publicly owned building or office", ["private club" or "nonpublic workplace"] as defined in Title 26, Chapter 38.

[ (18) "Work area" means a space, including inside a vehicle, which has the potential to be occupied by an individual at any time during the performance of his work duties, including all common areas in the workplace, and the three foot zone surrounding that location.

] [(19)](14) "Workplace" means any enclosed space, including a vehicle, in which one or more individuals perform any type of service or labor for consideration of payment under any type of employment relationship. This includes such places wherein individuals gratuitously perform services for which individuals are ordinarily paid.

 

R392-510-3. Responsibility for Compliance.

Where this rule imposes a duty on a building owner, agent, or operator, each is independently responsible to assure compliance and each may be held liable for noncompliance.

 

R392-510-4. [Exempt Places Not Required to Allow Smoking]Proprietor Right to Prohibit Smoking.

(1) The owner, agent or operator of a place [exempt under Section 26-38-3(2) is not required to allow smoking in the place.]may prohibit smoking anywhere on the premises.

(2) The owner, agent or operator of a place may also prohibit smoking anywhere outdoors on the premises.

 

R392-510-5. Smoking Prohibited Entirely in Places of Public Access and Publicly Owned Buildings and Offices.

[(1) ]Places listed in Section 26-38-2(1)(a) through [(i)](p) are [considered to be] places of public access and smoking is prohibited in them except as provided for in Section 26-38-3(2).[

(2) In a building with more than one tenant, smoking is permitted in nonpublic workplaces which meet the requirements of Sections R392-510-6, 7, 8, 10, 13, and 14.

(3) Nursing homes, residential health care facilities, assisted living facilities, and hospitals may have designated enclosed areas where smoking is permitted.]

 

R392-510-6. Requirements for Smoking Permitted Areas.

(1) Any enclosed area where smoking is permitted must be designed and operated to prevent exposure of persons outside the area to tobacco smoke generated in the area.

[(a) A smoking-permitted area shall be separately enclosed, have negative pressure of .01 inches of water or more relative to all surrounding smoking-prohibited areas sufficient to prevent air movement from the smoking-permitted area into the smoking-prohibited areas, and have a separate mechanical exhaust which will move air at a speed of 25 feet per minute as measured through the open door-frame and which exhausts directly to the outside.

(i) Section R392-510-6 does not apply to guest rooms exempted in Section 26-38-3(2)(d).

(ii) Large conference rooms rented or leased for private functions, in operation prior to March 22, 1994 and located in hotels or other convention centers are not considered to be smoking-prohibited areas unless so designated by the building owner, agent or operator.

](2) [Any unenclosed area where smoking is allowed under Section 26-38-5(2)(c) must be operated so that tobacco smoke does not enter any work area of any nonsmoker in the workplace or any other workplace in the same building.]If a lodging facility permits smoking as provided in Section 26-38-3(2)(b) in designated smoking-allowed guest rooms, or if a nursing home, assisted living facility, small health care facility, or hospital with a certified swing-bed program permits smoking as provided in Section 26-38-3(2)(b) in designated smoking-allowed private residential sleeping rooms, the facility's air handling system or systems must not allow air from any smoking-allowed area to mix with air in or to be used in:

(a) any part of the facility defined as a place of public access in Section 26-38-2(1);

(b) another room designated as a non-smoking room; or

(c) common areas of the facility, including dining areas, lobby areas and hallways.

(d) If an operator of a lodging facility chooses to modify the status of a room from a smoking to a non- smoking room, then the operator shall perform a full deep cleaning of the room. The deep cleaning shall include cleaning of carpets, bedding, drapes, walls, and any other object in the room which absorbs smoking particles or smoking fumes.

(3) A Class B and Class D private club licensed under Title 32A, Chapter 5, Private Club Liquor Licenses, operating and sharing air space with an adjoining place of public access as of January 1, 1995 does not have to meet the requirements of Subsection R392-510-6(1)[(a)] if the adjoining place of public access is in operation or construction footers [have been]were completed by January 1, 1995. This exemption is only effective before January 1, 2009, at which time smoking is prohibited in Class B and Class D private clubs.

[(4) A smoking area established under Section 26-38-5(2)(b) must be closed to public access and may not include any work area, except that cleaning and maintenance work may be conducted in the smoking-permitted area when no smoking is occurring.

(a) Single passenger vehicles may be designated as a smoking area.

]([5]4) Smoking may be permitted in vehicles that are [work areas]workplaces when not occupied by nonsmokers.[

(6) Two or more nonpublic workplaces located in the same building may share a smoking permitted area. Entry into the smoking permitted area is limited to employees of the participating nonpublic workplaces.]

 

R392-510-7. HVAC System Documentation.

(1) If a building has a smoking-permitted area under Section 26-38-3(2)[(a)(ii), Section 26-38-3(2)(g), Section 26-38-5(2)(b), Subsection R392-510-5(3) or has more than one use or tenant, at least one of which is a tavern which permits smoking], the building owner must obtain and keep on file a signed statement from an air balancing firm certified by the [AABC]Associated Air Balance Council or the [NEBB]National Environmental Balancing Bureau, or an industrial hygienist certified by the American Board of Industrial Hygiene that the smoking permitted area meets the requirements of Subsections R392-510-6(1)[ and (2)]. [If a building has a smoking-permitted area under Section 26-38-5(2)(c), the building owner must obtain and keep on file a signed statement from a mechanical engineer licensed by the State of Utah who has expertise in the design and evaluation of HVAC systems that the design of the HVAC system meets the requirements of Subsections R392-510-6(1) and (2), and a signed statement from an air balancing firm certified by the AABC or NEBB, or an industrial hygienist certified by the American Board of Industrial Hygiene that the as-built HVAC system performs as designed in the plan certified by the mechanical engineer.]If a building's HVAC System is altered in any way, the building owner must obtain new certification on the system.

([a]2) The building owner must provide the information required in Subsection R392-510-7(1) within three working days upon request from the operator, executive director or local health officer.

([b]3) The operator must provide the information required in Subsection R392-510-7(1) within five working days upon the request of the executive director or local health officer.

([c]4) The building owner must provide the HVAC operation specifications and maintenance guidelines to the HVAC operation and maintenance personnel or contractor. The maintenance guidelines must include the manufacturer's recommended procedures and time lines for maintenance of HVAC system components. If the manufacturer's recommended procedures for operation and maintenance of the HVAC system are not available, the building owner must obtain and use guidelines developed by a mechanical engineer licensed by the State of Utah who has expertise in the design and evaluation of HVAC systems or by a mechanical contractor licensed by the State of Utah who has expertise in the repair and maintenance of HVAC systems.

([d]5) The building owner must maintain HVAC inspection and maintenance records or logs for the three previous years and must make them available to the operator, executive director or local health officer within three working days of a request[, except that in 1995, 1996 and 1997 the records or logs created after January 1, 1995 must be kept].

([e]6) The operator must make the record or logs required in Subsection R392-510-7([1)(d]5) available to the executive director or local health officer within five working days of a request.

([f]7) The records or logs required in Subsection R392-510-7([1)(d]5) must include:

([i]a) The specific maintenance and repair action taken, and reasons for actions taken;

([ii]b) The name and affiliation of the individual performing the work; and

([iii]c) The date of the inspection or maintenance activity.

 

R392-510-8. Operation and Maintenance of HVAC Systems.

(1) The building owner, agent, or operator of a place where smoking is permitted under Section 26-38-3(2) [(a)(ii), Section 26-38-3(2)(b), Section 26-38-3(2)(g) or Subsection R392-510-5(3) ]shall identify a person responsible for the operation and maintenance of the HVAC system.

(2) The building owner, agent, or operator of a place where smoking is permitted under Section 26-38-3(2)[(a)(ii), Section 26-38-3(2)(b), Section 26-38-3(2)(g) or Subsection R392-510-5(3)] must maintain and operate the HVAC system to meet the requirements of Subsections R392-510-6[(1) and (2)].

(3) The building owner, agent, or operator of a place where smoking is permitted under Section 26-38-3(2)[(a)(ii), Section 26-38-3(2)(b), Section 26-38-3(2)(g) or Subsection R392-510-5(3)] must cause the HVAC system components to be inspected, adjusted, cleaned, and calibrated according to the manufacturer's recommendations, or replaced as specified in the maintenance guidelines required in Subsection R392-510-7([1)(c]4).[ HVAC inspection and necessary maintenance activities must be conducted according to the manufacturers' recommendations.] The building owner, agent, or operator's[Operating] experience with the HVAC system may establish that more frequent maintenance activities are required.

(4) Visual or olfactory observation [are]is sufficient to determine whether a smoking-permitted area meets the requirements of Section R392-510-6.

 

R392-510-9. Protection of Air Used for Ventilation.

(1) [The building owner, agent, or operator of a place may not designate an outdoor s]Smoking is not permitted [area ]within 25 feet of any entrance-way, exit, open window, or air intake of a building where smoking is prohibited.[

(a) If the location of an entrance-way, exit, open window or air intake to any smoking prohibited area or the location of a barrier, such as a wall, property line, parking lot or street, makes the 25-foot requirement impossible to meet, the policy must maximize the distance between the smokers and the entrance-way, exit, open window or air intake.

(b) Nursing homes, residential health care facilities, assisted living facilities, small health care facilities and hospitals with a certified swing-bed program may designate outdoor smoking areas closer than 25 feet for residents.]

[(c)](2) Ashtrays may be placed near entrances only if they have durable and easily readable signage indicating that the ashtray is provided for convenience only and the area around it is not a smoking area. The sign shall include a reference to the 25 foot prohibition.

([2]3) An employer [must]shall establish a policy to prohibit employee smoking within 25 feet of any entrance-way, exit, open window, or air intake of a building where smoking is prohibited.[ If the location of an entrance-way, exit, open window, or air intake to any smoking prohibited area or the location of a barrier, such as a wall, property line, parking lot or street, makes the 25-foot requirement impossible to meet, the policy must maximize the distance between the smokers and the entrance-way, exit, open window or air intake.

(3) Subsections R392-510-9(1) and (2) do not apply to building entranceways or exits that consist of a vestibule with a self-closing outer door(s) and a separate self-closing inner door(s).

 

R392-510-10. Written Smoking Policies.

(1) An employer who operates a workplace that is not a place of public access or a publicly owned or operated building or office shall either:

(a) Establish; or

(b) Negotiate through the collective bargaining process if its employees are organized into a union and operating under a collective bargaining agreement;

a written smoking policy as required by Section 26-38-5.

(2) An employer required to develop a written smoking policy under Section 26-38-5 must make the policy available to the executive director or local health officer upon request.

(a) The front page of the policy shall list the telephone numbers of the local health department and the Utah Department of Health's Bureau of Environmental Services. The telephone numbers must be easily readable.

(b) The policy shall be conspicuously posted in a well traveled area of the workplace.

(3) All voting, as required in Section 26-38-5(2)(c), shall be by anonymous written ballot and conducted in a manner to assure the secrecy of the vote. The employer must arrange for at least two nonsmoking employees to monitor the vote counting and serve as witnesses. The employer must maintain a record of the vote, signed by the witnesses, on file at the facility and make it available to the executive director or local health officer upon request.

(4) An employer has the duty to assure that his employees comply with the smoking policy of any place where an employee performs his work duties.]

 

R392-510-1[1]0. Educational and Cultural Activities Not Exempted.

(1) Educational facilities, as used in the Utah Indoor Clean Air Act, means any [enclosed location]facility used for instruction of people, including preschools, elementary and middle schools, junior and senior high schools.

(2) Smoking is prohibited in facilities used by, vocational schools, colleges and universities, and any other [school]facility or educational institution operated by a commercial enterprise or nonprofit entity, including hotel, motel, and convention center rooms, for the purpose of providing academic classroom instruction, trade, craft, computer or other technical or professional training, or instruction in dancing, artistic, musical or other cultural skills as well as all areas supportive of instruction including classrooms, lounges, lecture halls, study areas and libraries.[

(2) Educational facilities are not included under the private function exclusion allowed under Section 26-38-3(2).]

 

R392-510-1[2]1. Private Dwellings Which Are Places of Employment.

(1) A private dwelling is subject to these rules [if]while an individual[,] who does not reside in the dwelling[,] is [employed]engaged to perform services in the dwelling on a regular basis is present. This includes situations where an individual performs services such as, but not limited to:

(a) domestic services;

(b) secretarial services for a home-based business; or

(c) bookkeeping services for a home-based business.

(2) In a private dwelling in which a business or service is operated and into which the public enters for purposes related to the business or service smoking is prohibited in the business or service area [when the public is present]during hours when the dwelling is open to the public.[

(3) A private dwelling meeting the criteria in Subsection R392-510-12(1) that does not have public access is a nonpublic workplace.]

(4) A private dwelling in which an individual is employed on a nonregular basis only is not subject to these rules. This includes situations where individuals perform services such as:

(a) baby-sitting services;

(b) trade services for the owner of the dwelling or individuals residing in the dwelling such as those services performed by plumbers, electricians and remodelers;

(c) emergency medical services;

(d) home health services; and

(e) part-time housekeeping services.

 

R392-510-1[3]2. Signs and Public Announcements.

[(1) ]Signs required in this section must be easily readable and must not be obscured in any way. The words "No Smoking" must be not less than 1.5 inches in height. If the international "No Smoking" symbol is used alone, it must be at least 4 inches in diameter.

[(a)](1) In a place where smoking is prohibited entirely, the building owner, agent, or operator must conspicuously post a sign using the words, "No smoking is permitted in this establishment" or a similar statement, which shall also include the international no-smoking symbol, on all entrances or in a position clearly visible on entry into the place.

[(b)](2) In a place where smoking is partially allowed, the building owner, agent, or operator must conspicuously post a sign using the words, "No smoking is permitted except in designated areas" or a similar statement, which shall also include the international no-smoking symbol, on all entrances or in a position clearly visible on entry into the place.

[(c)](3) In a place where smoking is allowed in its entirety, the building owner, agent, or operator must conspicuously post a sign using the words, "This establishment is a smoking area in its entirety" or similar statement.

[(d)](4) The building owner, agent, or operator must post a sign at all smoking-permitted areas provided for under Section 26-38-3(2)[(b),(c),(d) and (g)](a), (b), and (c). The sign must have the words, "smoking permitted" or similar wording and include the international smoking symbol.

[(e)](5) The building owner, agent, or operator must post a sign inside the exit of all smoking-permitted areas, if the exit leads to a smoking-prohibited area. The sign must have the words, "smoking not permitted beyond this point" or similar wording and include the international no-smoking symbol.

(6) In public lodging facilities that designate guest rooms as smoking allowed, the building owner, agent, or operator must conspicuously post a permanent sign on the smoking-allowed guest room door and meet the requirements of R392-510-6(1) and (2).

(7) In nursing homes, assisted living facilities, small health care facilities and hospitals with a certified swing-bed program that designate private residential sleeping rooms as "smoking allowed," the building owner, agent, or operator must conspicuously post a permanent sign on the door and meet the requirements of R392-510-6(1) and (2).

[(f)](8) The building owner, agent, or operator of an airport terminal, bus station, train station, or similar place must provide announcements on a public address system as often as necessary but not less than four times per hour during the hours that the place is open to the public, as follows:

[(i)](a) If smoking is not permitted, the announcements shall convey that the Utah Indoor Clean Air Act prohibits smoking in the place.

[(ii)](b) If smoking is partially permitted, the announcements shall convey that the Utah Indoor Clean Air Act requires smokers to smoke only in those areas specifically designated for smoking.

[(g)](9) The building owner, agent, or operator of a sports arena, convention center, special events center, concert hall or other similar place must provide announcements on a public address system prior to the beginning of any event, at intermissions, at the conclusion of the event and any other break in the program or event, as follows:

[(i)](a) If smoking is not permitted, the announcements shall convey that the Utah Indoor Clean Air Act prohibits smoking in the place.

[(ii)](b) If smoking is partially permitted, the announcements shall convey that the Utah Indoor Clean Air Act requires smokers to smoke only in those areas specifically designated for smoking.

[(h)](10) The building owner, agent, or operator of a large place, such as an airport, university, hotel or motel, or sports arena may, in writing, request the assistance of the local health officer to establish an effective signage and public announcements plan. The local health officer may cause the plan to be modified at any time to protect nonsmokers from being exposed to tobacco smoke.[

(i) At private functions where smoking is permitted by the sponsor of the function under Section 26-38-3(2)(a)(ii), the sponsor of the function must conspicuously post a sign using the words, "This is a private function at which smoking is permitted. The public is not allowed" or a similar statement on all entrances or in a position clearly visible on entry into the place.]

[(j)](11) Buildings that are places of worship operated by a religious organization are not required to post signs.

 

[R392-510-14. Determination of Social Organizations.

In determining whether smoking is not prohibited under Section 26-38-3(2)(a)(i) because the building is owned, rented, leased, or otherwise operated by a social organization, the following are indicators that are helpful in determining whether there is a social organization that meets the statute's requirements. In most situations, no single indicator establishes the existence of a social organization. Likewise, no single indicator disproves, in most instances, that a social organization does not exist. The indicators are given as an aid to the local health departments and to the public to gain compliance with the Utah Indoor Clean Air Act. The indicators are not equally weighted. Except as otherwise noted, answers in the affirmative indicate that there is a bona fide social organization; answers in the negative, indicate that there is not.

(1) Is it an organization?

(a) Are there written bylaws or other document that establishes the organization?

(b) Are there regularly elected officers?

(c) Are there provisions for elections?

(d) Are there regular meetings of the officers?

(e) Are there regular meetings of the membership?

(f) Do members receive mailed notices of meetings?

(g) Is the organization a nonprofit corporation regulated by the Division of Corporation and Codes?

(h) Is there a membership fee sufficient to support a social organization and its independent activities?

(i) How long has the organization been in existence?

(j) Is the organization affiliated with a national or statewide organization?

(2) Does the organization operate as a social organization?

(a) Does the organization regularly communicate to its members through a newsletter or some other regular and formal method?

(b) Are there organized social activities at the meetings other than consuming that offered by the proprietor of the building?

(c) Is there a record of members?

(d) Is the organization established to carry out some social function other than that normally offered in the building?

(e) Is the membership fee used to carry out some function other than that of using the services normally offered in the building?

(f) Is the organization a separate legal entity registered with the state?

(3) Is there an arms-length relationship between the building owner or operator and the social organization using it?

(a) Is there an arms-length rental arrangement between the organization and the building owner or operator?

(b) Does the building owner or operator offer the building to others for rental?

(c) Does the organization have the ability to hold all its meetings in another building?

(d) Is the membership fee set by the organization acting as an independent entity apart from the building owner or operator?

(e) Do the members have an equal voice in the use of the membership fees?

(f) Is the building owner or operator the promoter, organizer, or an officer of the social organization? (Affirmative answer indicates no social organization.)

(g) Does the social organization own the building?

(h) If the organization is a regulated nonprofit corporation, but the building owner or operator is an officer, is the organization a registered IRC Section 501(c)(3) organization?

(4) Is the public excluded from the building during the time that the organization is using the building?

(a) Does joining the organization involve more than entering the premises and paying a small membership fee?

(b) Can an individual gain easy access and be served upon payment of a small membership fee? (Affirmative answer indicates no social organization.)

(c) Is the place operated essentially like a competitor that is a place of public access, except for the payment of a small membership fee or issuance of a membership? (Affirmative answer indicates no social organization.)

 

R392-510-15. Facilities Rented or Leased for Private Functions.

A facility exempted from the smoking prohibitions of Section 26-38-3(1) by reason of the private function exemption provisions of Section 26-38-3(2)(ii) must meet the following requirements for private functions at which smoking is allowed:

(1) The private function must be associated with a special event, ceremony, celebration, or meeting.

(2) The start and end dates and times of the private function must be definite and determined before the commencement of the private function.

(3) The private function may not be of a duration longer than two weeks.

(4) The private function must be limited to the attendees whom the private function sponsor has invited to the specific private function before the commencement of the private function and their guests. An invitation to members of a group or organization to attend all of the private functions scheduled at a facility does not meet the requirement that the attendees be invited to the specific private function before the commencement of the private function.

(5) The owner, operator, and sponsor of the private function must exclude the general public, including those willing to pay an entrance or membership fee at the time of entrance or service.

(6) A private function attendee may not sponsor or otherwise make as his guest for the private function a member of the general public or an individual not personally known by the invited attendee.

(7) An employee of the facility or of the group or organization holding the private function may not sponsor or otherwise make any individual his guest for the private function.

(8) The owner or operator of a facility rented or leased for a private function must maintain a record of the following for 2 years:

(a) start time and date of the private function;

(b) end time and date of the private function;

(c) the nature of the event.

(9) The persons responsible for maintaining the records required in Subsection R392-510-15(8) must make them available to the local health officer or Executive Director upon request.

(10) The owner or operator of a facility rented or leased for private functions more than 50% of the time that the facility is open may not advertise or represent the facility to be a restaurant, cafe, arcade, or other place of public access to which an individual may gain access without an individualized invitation specifically directed to him.

(11) A facility may not consecutively schedule individual private functions for the same attendees, organization or group in a manner that gives the same attendees, organization or group substantially continuous access to the facility during its operating hours. The facility may not schedule a private function for a group or organization within 48 hours of the end of a separate private function for the same group or organization at the facility.

]

R392-510-1[6]4. Discrimination.

[(1) ]An employer may not discriminate or take any adverse action against an employee or applicant because that person has sought enforcement of the provisions of Title 26, Chapter 38, Rule R392-510, the smoking policy of the workplace or otherwise protests the smoking of others.[

(2) Wherever a break room is designated to be a smoking area provided for under Section 26-38-5(2)(b), the employer must provide a separate smoking-prohibited break room that is at least equal in area and accessories.]

 

KEY: public health, indoor air pollution, smoking, ventilation

Date of Enactment or Last Substantive Amendment: [August 19, 1996]2007

Notice of Continuation: April 23, 2007

Authorizing, and Implemented or Interpreted Law: 26-1-30(2); 26-15-1 et seq.; 26-38-1