Bill Text: DE HB388 | 2023-2024 | 152nd General Assembly | Draft
Bill Title: An Act To Amend Title 16 Of The Delaware Code Relating To The Clean Indoor Air Act.
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Introduced) 2024-05-09 - Introduced and Assigned to Health & Human Development Committee in House [HB388 Detail]
Download: Delaware-2023-HB388-Draft.html
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SPONSOR: |
Rep. Minor-Brown & Rep. Heffernan & Sen. Townsend |
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Reps. Baumbach, Dorsey Walker, K. Johnson, Neal, Parker Selby; Sens. Hansen, Lockman, Walsh |
HOUSE OF REPRESENTATIVES
152nd GENERAL ASSEMBLY
HOUSE BILL NO. 388
AN ACT TO AMEND 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 making deletions as shown by strike through and insertions as shown by underline as follows and redesignating accordingly:
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 nonsmokers from involuntary exposure to environmental tobacco and marijuana smoke and emissions produced by electronic smoking devices in most indoor areas open to the public, public meetings, food service establishments and places of employment.
The General Assembly recognizes that a balance should be struck between the health concerns of nonconsumers of tobacco and marijuana 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 and marijuana 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 and marijuana smoke and emissions produced by electronic smoking devices.
§ 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: As used in this chapter:
(1) “Auditorium” means the part of a public building where an audience sits and any corridors, hallways or lobbies adjacent thereto.
(2) “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 or tavern” as that term is defined in Title 4 shall be considered a “bar” for purposes of the application of the provisions of this chapter. [Repealed.]
(3) “Electronic smoking device” means any product containing or delivering nicotine or any other similar substance intended for human consumption that can be used by a person to simulate smoking through inhalation of vapor or aerosol from the product. The term includes any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, or vape pen, or under any other product name or descriptor.
(4) “Employer” means any person, partnership, association, corporation or nonprofit entity that employs 1 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.
(5) “Environmental tobacco and marijuana smoke” (ETS) or “secondhand smoke” is the complex mixture formed from the escaping smoke of a burning tobacco or marijuana product (termed as “sidestream smoke”) and smoke exhaled by the smoker. Exposure to ETS environmental tobacco and marijuana smoke is also frequently referred to as “passive smoking” or “involuntary smoking.”
(6) “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 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 shall be considered a “food service establishment” for purposes of the application of the provisions of this chapter.
(7) “Indoor area open to the public” means any indoor area or portion thereof generally accessible to the public.
(8) “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.
(9) “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.
(10) “Public meeting” means all meetings open to the public pursuant to the laws of Delaware and its political subdivisions.
(11) “Smoke-free work area” means an indoor area in a place of employment where no smoking occurs.
(12) “Smoking” means: means both of the following:
a. The burning of a lighted cigarette, cigar, pipe or any other matter or substance that contains tobacco; or tobacco.
b. The use of an electronic smoking device which creates an aerosol or vapor, in any manner or in any form.
(13) “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. [Repealed.]
(14) “Vapor establishment” means a business that: [Repealed.]
a. Generates at least 80% of its revenue from the sale of electronic smoking devices and substances for use within electronic smoking devices; and
b. Does not share indoor common space with other businesses unless there are doors from the vapor establishment to the indoor common space that remain closed other than for ingress and egress.
(15) “Vehicle” means motor vehicles, trailers, recreational vehicles, recreational trailers, and any other device, in, upon, or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by animal power, human power, electric bicycles, off-highway vehicles, special mobile equipment and farm equipment.
(16) “Work area” means an area in a place of employment where 1 or more employees are routinely assigned and perform services for their employer. [Repealed.]
§ 2903. Smoking restrictions.
Except as is provided Unless specifically exempted in § 2904 of this title, and in order to reduce the levels of exposure to environmental tobacco and marijuana smoke and emissions produced by electronic smoking devices, smoking shall not be is not permitted and no person shall may smoke in any indoor enclosed area to which the general public is invited or in which the general public is permitted, including, but not limited to: to all of the following:
(1) Public meetings; meetings.
(2) Elevators; Elevators.
(3) Government owned and/or operated means of mass transportation including buses, vans, trains, taxicabs and limousines; taxicabs, and limousines.
(4) Grocery stores; stores.
(5) Gymnasiums; Gymnasiums.
(6) Jury waiting and deliberation rooms; rooms.
(7) Courtrooms; Courtrooms.
(8) Child day care facilities; facilities.
(9) Health-care facilities including hospitals, health care clinics, doctor’s offices or other health-care-related facilities; facilities.
(10) Any workplace place of employment not exempted; exempted.
(11) Restrooms, lobbies, reception areas, hallways and other common-use areas; areas.
(12) Restaurants as licensed by the Division of Public Health or defined by Title 4; - Food-service establishments.
(13) Gaming facilities that are open to the public; public.
(14) Any indoor sports arena; arena.
(15) Lobbies, hallways and other common areas in apartment buildings, condominiums and other multiple-unit residential facilities ; facilities.
(16) Lobbies, hallways and other common areas in hotels and motels, and in no less than 75% of the sleeping quarters within a hotel or motel that are rented to guests; guests.
(17) Bowling alleys; alleys.
(18) Billiard or pool halls; halls.
(19) Retirement facilities and nursing homes not including any private residence; residence.
(20) Public buildings; buildings.
(21) Auditoria; Auditoriums.
(22) Theaters; Theaters.
(23) Museums; Museums.
(24) Libraries; Libraries.
(25) Public and nonpublic schools; schools.
(26) Other educational and vocational institutions.
(27) Establishments defined as a motorsports speedway, tavern or taproom speedway by Title 4.
(28) Bars, taprooms, taverns, and other indoor venues licensed under Chapter 5 of Title 4.
§ 2904. Smoking restrictions inapplicable.
This chapter shall not apply to any of the following:
(1) Private homes, private residences, or private vehicles, except when any of the following apply:
a. The home, residence, or vehicle is being used for child care or day care.
b. The private vehicle is being used for the public transportation of children or as part of health-care or day care transportation.
c. A passenger under 16 years of age is in the vehicle.
(2) 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 the indoor area.
(3) Limousines under private hire, unless a passenger under 16 years of age is in the limousine.
(4) 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 25%.
(5) Any fundraising activity or function sponsored by a volunteer fire company, auxiliary of a fire company, or a volunteer ambulance or volunteer rescue company, if the fundraising activity or function takes place upon property owned or leased by the volunteer fire, rescue, or ambulance company.
(6) Any fundraising activity or function sponsored by a fraternal benefit society as defined under § 6201 of Title 18, if the fundraising activity or function takes place upon property owned or leased by the fraternal benefit society.
§ 2906. Implementation; rules and regulations.
(c) The Department of Health and Social Services 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 or marijuana products.
§ 2908. Vapor establishments. [Repealed.]
(a) Vapor establishments are permitted to have emissions produced by electronic smoking devices within their places of business.
(b) Any vapor establishment permitted to have emissions produced by electronic smoking devices in such vapor establishment pursuant to this section, and which permits such emissions, shall prohibit anyone under the age of 21 from entering and shall display a sign at all entrances stating that no one under the age of 21 is allowed in such vapor establishment.
(c) (1) An employee who is under the age of 21 and who is employed by a vapor establishment on July 16, 2019, may continue as an employee of that vapor establishment, if the vapor establishment provides the Division of Alcohol and Tobacco Enforcement with all of the following information:
a. The employee’s name.
b. The employee’s date of birth.
c. The employer’s name.
d. Proof that the employee was employed by the vapor establishment on July 16, 2019, by providing any of the following:
1. A paystub.
2. An Internal Revenue Service W-2 tax form.
3. A state UC-8A quarterly report.
4. Other documentation of monetary pay to an employee by an employer in return for work performed.
(2) The information required under paragraph (c)(1) of this section must be received by the Division of Alcohol and Tobacco Enforcement no later than August 15, 2019.
(3) The Division of Alcohol and Tobacco Enforcement shall retain the information provided under this subsection for 3 years.
§ 2910. Restrictions on use of marijuana through smoking or electronic smoking device.
(a) The restrictions in § 2903 of this title on smoking and the use of electronic smoking devices are applicable where the substance burned or vaporized is marijuana, whether or not the substance also contains tobacco.
(b) Violations of § 2903 of this title pertaining to marijuana may be investigated and regulated by the Department of Health and Social Services and the Department of Labor and an administrative penalty may be assessed under § 2907 of this title.
(c) Nothing in this section is intended to abrogate or supersede provisions on public consumption of marijuana or the consumption of marijuana in a vehicle that are contained elsewhere in this title or in Title 4.
Section 2. This Act takes effect January 1, 2025.
SYNOPSIS
This Act updates the Clean Indoor Air Act to include the burning of marijuana or the use of marijuana in an electronic smoking device as a prohibited activity in all the same locations where smoking a tobacco product or using an electronic smoking device is prohibited.
Further, the Act updates and clarifies some of the definitions used in this chapter. Several of the defined terms are no longer used in the substantive portions of the chapter because they pertained to exceptions to the Clean Indoor Air Act that were legislatively removed. This bill also makes technical changes to conform to the requirements of the Delaware Legislative Drafting Manual.
Finally, the exception on smoking prohibitions for vapor establishments is repealed. The exception for tobacco businesses was removed from the Clean Indoor Air Act in 2002, and this repeal will treat the businesses more alike. In addition, the definition of vapor establishment had proved difficult for agencies to understand and implement properly.
This Act is effective January 1, 2025.
