Health, Disease Control and Prevention, Environmental Services

Rule R392-510

Utah Indoor Clean Air Act

Notice of Proposed Rule

(Amendment)

DAR File No.: 36620
Filed: 08/01/2012 05:16:52 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In the 2012 General Session, the statute regarding Utah Indoor Clean Air requirements was modified in H.B. 245. This bill was passed which required an amendment to the rule.

Summary of the rule or change:

The rule has been updated to include the requirements of the statute. The main modification was the inclusion of a restriction of the use of e-cigarettes and also the use of a heated substance containing tobacco or nicotine. These are now defined as smoking and would now be prohibited under the new rule. Also, the rule has included the allowed exemption for certain businesses operating under required criteria listed by statute as of January 2012.

State statutory or constitutional authorization for this rule:

• Section 26-15-2

Anticipated cost or savings to:

the state budget:

There is no anticipated cost of savings to state budgets. Administration will be handled with existing funding.

local governments:

There may be some slight increase in regulatory costs which will impact budgets of local health departments due to a small increase in the number of facilities required to inspect. The impact of this cost can be mitigated by required permit fees allowed by statute. Total costs are unknown at this time.

small businesses:

There are fewer than five small businesses statewide known at this time based on information received from local health departments which will be affected by the restriction of the use of heated tobacco. As outlined by statute and proposed rule, facilities have the opportunity to apply for a one-time, five-year exemption to mitigate possible revenue reductions due to these restrictions. It is unknown at this time how many of these businesses will qualify for the exemption, but it is anticipated that at least 50% will qualify. Those who do not qualify for the exemption will be severely impacted.

persons other than small businesses, businesses, or local governmental entities:

There are no known large businesses that allow smoking of tobacco in hookah apparatus known at this time.

Compliance costs for affected persons:

There will be slight increase in costs for the individual local health departments with exempted facilities within their jurisdiction, due to increased education and inspection costs. For those individual businesses who qualify for an exemption, there will be permit fees for a "reasonable amount" which will be paid to local health departments as the statute requires. For those businesses which do not qualify for an exemption, their individual revenue will be severely reduced, but the amount is not known.

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

This rule follows Legislative direction and implements with cost minimization to business as a significant guiding factor. Comments will be carefully evaluated.

David Patton, PhD, Executive Director

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

Health
Disease Control and Prevention, 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 [email protected]

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:

09/14/2012

This rule may become effective on:

09/21/2012

Authorized by:

David Patton, Executive Director

R392. Health, Disease Control and Prevention, Environmental Services.

R392-510. Utah Indoor Clean Air Act.

R392-510-2. Definitions.

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

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

(2) "Area" means a three dimensional space.

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

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

(5) "E-cigarette" means any electronic oral device that provides a vapor of nicotine or other substance and which simulates smoking through its use or through inhalation of the vapor through the device; and includes an oral device that is composed of a heating element, battery, or electronic circuit and marketed, manufactured, distributed, or sold as an e-cigarette, e-cigar, e-pipe, or any other product name or descriptor, if the function of the product meets the definition of an electronic oral device.

[(5)](6) "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.

[(6)](7) "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.

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

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

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

[(10)](11) "Lighted Tobacco" means both tobacco that is under self sustained combustion and tobacco that is heated to a point of smoking or vaporizing.

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

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

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

[(14)](15) "Place" means any "place of public access", or "publicly owned building or office", as defined in Title 26, Chapter 38.

[(15)](16) "Smoking" means the possession of any lighted or heated tobacco product in any form[.]; inhaling, exhaling, burning, or heating a substance containing tobacco or nicotine intended for inhalation through a cigar, cigarette, pipe, or hookah.

[(16)](17) "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.

 

R392-510-6. 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.

(2) 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) if the adjoining place of public access is in operation or construction footers 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]3) Smoking may be permitted in vehicles that are workplaces when not occupied by nonsmokers.

 

R392-510-14. Temporary Exemption.

(1) The definition of smoking, which prohibits heated tobacco inhaled or exhaled through a hookah does not apply to a place of public access if it meets the requirements outlined by statute in 26-38-2.5, and action was required prior to July 1, 2012. The department or local health department shall certify that the exemption requirements are met as directed by 26-38-2.5 and a reasonable fee may be imposed to recover the cost of certification of exemption. In addition, penalties may be imposed for violation of the exemption as defined in 26-23-6. The exemption will sunset, in accordance with 63I-1-226, July 1, 2017. Additionally, as required by statute, the place of public access must provide through written notice on menus, or conspicuously located signage that only tobacco products sold at this place of public access may be heated, inhaled, and exhaled and that only those 21 years of age and older may be admitted. Any change in exemption status must be reported to the local health department.

(2) The place of public access shall allow the local health department and State Health Department to inspect the facility to verify ongoing compliance with the rule and statute during the 5 year exemption period. To maintain the exemption, the place of public access must:

(a) Maintain its class C or D liquor license.

(b) Admit only individuals 21 years of age and older into the place of public access.

(c) Prominently display signs on the premises and in advertisements that disclose the dangers of second hand smoke and inhaling tobacco.

(d) Require that only tobacco products sold by the place of public access may be heated, inhaled, and exhaled in the place of public access.

(e) Not sell a product for use in a hookah that contains more than 30% tobacco or more than .05% nicotine.

(f) Sell a mixture of tobacco and other flavors for the purpose of heating, inhaling, and exhaling the tobacco mixture through a hookah pipe

(g) Be able to demonstrate that the sale of the mixture of tobacco and other flavors for use in a hookah pipe in the place of public access constitutes at least 10% of the establishment’s gross annual sales (January 1 to December 31 during the exemption period).

(3) If the place of public access does not meet the requirements of the exemption as determined by inspection of the local health department and/or State Health Department, the certification of exemption shall be suspended, and the place of public access shall go through the appeals process as outlined in 26a-1-121 (2) to determine if the permit should be permanently revoked or if corrections have been made, renewed for the balance of the 5 year period.

 

R392-510-15. Signs Required for Temporary Exemption.

(1) The building owner, agent or operator must conspicuously post signs that are easily readable and not obscured in any way as outlined in R392-510-12. The words must not be less than 1.5 inches in height. The signs shall state "WARNING: There is no risk-free level of inhaling tobacco smoke or exposure to secondhand tobacco smoke. -U.S. Surgeon General".

(2) The sign shall be posted at all entrances or in a position clearly visible on entry into the place.

(3) Any advertisements to the public must include the statement "WARNING: There is no risk-free level of inhaling tobacco smoke or exposure to secondhand tobacco smoke. -U.S Surgeon General".

 

R392-510-16. Restriction on Use of e-Cigarette in Place of Public Access.

The prohibition against the use of an e-cigarette in a place of public access does not apply if:

(1) the use of the e-cigarette occurs in the place of public access that is a retail establishment that sells e-cigarettes and the use is for the purpose of:

(a) the retailer of an e-cigarette demonstrating to the purchaser of the e-cigarette how to use the e-cigarette; or

(b) the customer sampling a product sold by the retailer for use in an e-cigarette; and the retailer of e-cigarettes:

(i) has all required licenses for the possession and sale of e-cigarettes in a place of business;

(ii) does not permit a person under the age of 19 to enter any part of the premises of the retail establishment in which the e-cigarettes are sold; and

(iii) the sale of e-cigarettes and substances for use in e-cigarettes constitutes at least 75% of the establishment’s gross sales.

(2) this section sunsets, in accordance with 63I-1-226, July 1, 2017.

 

R392-510-17. Enforcement action by Proprietors.

An owner, agent, or employee of the owner of a place where smoking is prohibited by this rule who observes a person smoking in apparent violation of this rule shall request the person to stop smoking. If the person fails to comply, the proprietor, agent, or employee shall ask the person to leave the premises.

 

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

Date of Enactment or Last Substantive Amendment: [September 12, 2011]2012

Notice of Continuation: April 2, 2012

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