Utah
Indoor Clean Air Act
*Rule
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Note: The listing and linking of
Rule R 392-510. Utah Indoor Clean Air Act
is provided for information purposes only- Users
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Rule R392-510. Utah Indoor Clean Air Act.
As in effect on February 1, 2000
Sections
(1) This rule is authorized by Sections 26-1-30(2)
and 26-15-12.
(2) This rule does not preempt other restrictions on
smoking that are otherwise allowed by
law.
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) "Agent" means the person to which a
building owner has delegated the maintenance and
care of the building.
(4) "Area" means a three dimensional space.
(5) "Building" means an entire free
standing structure enclosed by exterior walls.
(6) "Building owner" means the person(s)
who has an ownership interest in any public or
private building.
(7) "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) "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) "Executive Director" means the
Executive Director of the Utah Department of Health or his
designee.
(10) "Facility" means any part of a building, or an entire building.
(11) "HVAC system" means the collective
components of a heating, ventilation and air
conditioning system.
(12) "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) "Nonsmoker" means a person who has not
smoked a tobacco product in the preceding
30 days.
(16) "Operator" means a person who leases a place from a building owner or
controls,
operates or supervises a place.
(17) "Place" means any "place of public access", "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) "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.
The owner, agent or operator of a place exempt under
Section 26-38-3(2) is not required to allow smoking in the place.
(1) Places listed in Section 26-38-2(1)(a) through
(i) 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.
(3) A 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 completed by
January 1, 1995.
(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) Smoking may be permitted in vehicles that are work areas 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
or the NEBB, 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.
(a) 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) 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) 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) 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) The operator must
make the record or logs required in Subsection R392-510-7(1)(d)
available to the executive director or local health officer within five working days of
a
request.
(f) The records or logs required in Subsection
R392-510-7(1)(d) must include:
(i) The specific maintenance and repair action taken, and reasons for actions taken;
(ii) The name and affiliation of the individual performing the work;
(iii) The date of the inspection or maintenance activity.
(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, calibrated or replaced as specified in the
maintenance guidelines required in
Subsection R392-510-7(1)(c). HVAC inspection and
necessary maintenance activities
must be conducted according to the manufacturers'
recommendations. Operating
experience may establish that more frequent
maintenance activities are required.
(4) Visual or olfactory observation are 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 smoking
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) Ashtrays may be placed near entrances only if
they have easily readable signage
indicating that
the ashtray is provided for convenience only and the area around it
is not a smoking
area.
(2) An employer must 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.
(1) Educational facilities, as used in the Act, means
any enclosed location used for
instruction of people, including preschools,
elementary and middle schools, junior and
senior high schools, vocational schools, colleges and
universities, and any other school
or educational institution operated by a commercial
enterprise or nonprofit entity,
including hotel, motel, a 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).
R392-510-12. Private Dwellings Which Are Places of
Employment.
(1) A private dwelling is subject to
these rules if an individual, who does not reside in
the dwelling, is employed in the dwelling on a
regular basis. This includes situations
where an individual performs services such as:
(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.
(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.
(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.
(a) 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) 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) 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) 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). The sign
must
have the words, "smoking permitted" or similar wording and include the
international smoking symbol.
(e) 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.
(f) 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) If
smoking is not permitted, the announcements shall convey that the Utah Indoor
Clean Air Act prohibits smoking in the place.
(ii) 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) The building owner, agent, or operator
of a sports arena, convention center, special
events center, oncert 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) If smoking is not permitted, the announcements shall convey that the Utah Indoor
Clean Air Act prohibits smoking in the place.
(ii)
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) 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) 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 oganization 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.
(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.
Date of Last Substantive Amendment:
August 19, 1996
Notice of Continuation:
October 20, 1997
Authorizing Law:
This rule is authorized by, and implements or
interprets, the following:
26-1-30(2); 26-15-1 et seq.; 26-38-1
Converted by:
Utah State Division of Administrative Rules
PO Box 141007
Salt Lake City, Utah 84114-1007
Tel. (801) 538-3003
The HTML version of this rule is a convenience copy. This information is
made available on the Internet as a public service. PLEASE SEE DISCLAIMER ABOUT INFORMATION
AVAILABLE FROM www.rules.state.ut.us.
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