Smoking Regulations in Delaware

The Clean Indoor Air Act of  Delaware  seeks to protect nonsmokers from involuntary exposure to environmental tobacco smoke in most indoor areas open to the public, public meetings, foods service establishments and places of employment.[i]
The Code recognizes that a balance should be struck between the health concerns of non consumers of tobacco products and the need to minimize unwarranted governmental intrusion into private spheres of conduct and choice with respect to the use or nonuse of tobacco products in certain designated public areas and in private places.  The purpose of the Clean Indoor Air Act is to preserve and improve the health, comfort and environment of the people of Delaware by limiting exposure to tobacco smoke and emissions produced by electronic smoking devices.[ii]

Apart from the provisions in the Delaware Code, Delaware Regulations also contain rules regulating tobacco smoking in Delaware.  Delaware Regulations are meant to protect the nonsmoker from involuntary exposure to environmental tobacco smoke in most enclosed indoor areas to which the public is invited or permitted.[iii] 

 The preamble to the regulation states that the regulations establish standards for the enforcement of the Clean Indoor Air Act as it relates to most indoor enclosed areas to which the general public is invited or is permitted.[iv]  Regulations establishing standards for the enforcement of the Clean Indoor Air Act affecting employers, employees and the workplace is adopted by the Department of Labor.[v]

To reduce the levels of exposure to environmental tobacco smoke, smoking restrictions are imposed.  Smoking is not permitted in any indoor enclosed area to which the general public is invited or to which the general public is permitted.[vi]  The restrictions are imposed in places like public meetings, elevators, government owned or operated means of mass transportation including buses, vans, trains, taxicabs and limousines, grocery stores, gymnasiums, jury waiting and deliberation rooms, courtrooms, child day care facilities and health care facilities including hospitals, health care clinics, doctor’s offices or other health-care-related facilities.[vii]   Smoking is also prohibited in all workplace which are specifically not exempted from the regulation, restrooms, lobbies, reception areas, hallways and other common-use areas, restaurants which are licensed by the Division of Public Health or defined by Title 4, gaming facilities that are open to the public and in any indoor sports arena.[viii]  Lobbies, hallways and other common areas in apartment buildings, condominiums and other multiple-unit residential facilities, 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 are also places where smoking is not permitted.[ix]  Smoking restrictions also apply to bowling alleys, billiard or pool halls, retirement facilities and nursing homes not including any private residence, public buildings, auditoria, theaters, museums, libraries, public and nonpublic schools, and other educational and vocational institutions.  Smoking is also not permitted in any establishment defined as a motorsports speedway, tavern or taproom by Title 4.[x]

Tobacco smoking is not permitted in any enclosed indoor area, including, places to which the general public is invited or in which the general public is permitted.[xi]  Restriction is placed on smoking in all organization, business or establishment which caters to or offers goods or services or facilities to, or solicits patronage from the general public.[xii]  Smoking is also not permitted in any government owned or operated means of mass transportation including buses, vans, trains, taxicabs and limousines.[xiii]  Functions or activities of private clubs or organizations are also places where smoking is restricted when access by the general public is allowed or solicited.[xiv]  Smoking is also not permitted in any private vehicle used for the public transportation of children or as part of health care or day care transportation[xv] as well as in private homes or private residences[xvi] when such homes or residences are being used for child care or day care.

The owner of any indoor enclosed area or any person responsible for the management of such area or employee shall permit or authorize smoking by any person in areas not designated specifically for the smoking of tobacco products.[xvii]

Smoking is permitted in private homes, private residences and private automobiles.  However, the exemption becomes inapplicable when such homes, residences or vehicles are being used for child care or day care or when the private vehicle is being used for the public transportation of children or as part of health care or day care transportation.[xviii]  Exemption from the smoking regulation is also permitted in all indoor area where private social functions are being held.[xix]  In such cases also, the exemption is applicable only when the seating arrangements are under the control of the sponsor of the function and not the owner, operator, manager or person in charge of such indoor area.[xx]   Smoking is permitted inside limousines under private hire, and in hotel or motel room rented to guests.  However, this exemption can be availed only if the total percentage of such hotel or motel rooms does not exceed 25%.  Exemption is also granted from smoking regulations for any fund raising activity or function sponsored by a volunteer fire company, auxiliary of a fire company, or a volunteer ambulance or volunteer rescue company.[xxi]  However, in such cases also the fund raising activity or function should be taking place upon property owned or leased by the volunteer fire, rescue or ambulance company.  Smoking exemption is also applicable in cases of fund raising activity or function sponsored by a fraternal benefit society if the fund raising activity or function takes place upon property owned or leased by said organization.[xxii]

Apart from these places, the Delaware regulations also exempt certain places from the smoking regulations.[xxiii]  As per these regulations, smoking is permitted in private homes, private residences and private automobiles[xxiv], and in indoor area where private social functions are being held when seating arrangements are under the control of the sponsor of the function.[xxv]  Smoking is not prohibited in limousines under private hire[xxvi], in hotel or motel room rented to guests provided that the total percentage of such hotel or motel rooms does not exceed twenty-five percent (25%).[xxvii]  It is also allowed during fund raising activity or function sponsored by a volunteer fire company, auxiliary of a fire company, or a volunteer ambulance or volunteer rescue company; provided the fund raising activity or function takes place upon property owned or leased by the volunteer fire, rescue or ambulance company.[xxviii]  During fund raising activity or function sponsored by a fraternal benefit society, smoking is permitted if the fund raising activity or function takes place upon property owned or leased by said organization.[xxix]  Smoking is also allowed in enclosed indoor area operated or in use exclusively by a private club.[xxx]

Signs stating that smoking is permitted should be prominently posted and properly maintained in areas where smoking is permitted pursuant to § 2904(2) and (4).[xxxi]  Such signs shall be posted and maintained by the owner, operator, manager or other person having control of such area.[xxxii]  The letters on such signs are required to be at least 1 inch in height.[xxxiii]

The Delaware Regulations also mandate owners, operators, managers or person having control of enclosed indoor areas to post signs which indicate “Warning: Smoking Permitted” prominently for indicating locations where smoking is permitted.[xxxiv]  Failure to prominently post properly maintained signs with letters at least one (1) inch in height and in accord with the Clean Indoor Air Act is a violation subject to administrative penalties.[xxxv]

A person violating the restrictions relating to smoking is liable to be subject to an administrative penalty of $ 100 for a first violation and not less than $ 250 for each subsequent violation.[xxxvi] 

An employer who discharges or discriminates against an employee because that employee has made a complaint or has given information relating to smoking to the Department of Labor, or because the employee has caused to be instituted or is about to cause to be instituted any proceedings, or has testified or is about to testify in any proceedings, will be subject to a civil penalty of not less than $ 2,000 nor more than $ 10,000 for each violation.[xxxvii]

The Delaware Regulations also lays down provisions for administrative penalty.  Under the regulations, any person who violates the provision of these regulations shall be subject to an administrative penalty of $ 100.00 for the first violation and not less then $ 250.00 for each subsequent violation.[xxxviii] 

The regulation states about administrative hearing also.  In cases where a person receives due notice of the Delaware Health and Social Services Department’s intend to assess an administrative penalty, he/she should submit to the Division, a written request for an administrative hearing within thirty (30) days of the date of such notice of intent.[xxxix]

Under the Delaware Regulations, a person, who refuses, to comply with the law regarding smoking indoors is generally liable to be fined not less than $ 100.00 and not more than $ 1,000.00, together with cost.[xl]

 [i] 16 Del. C. § 2901

[ii] Id

[iii] CDR 16-4000-4452 (2)

[iv] CDR 16-4000-4452

[v] Id

[vi] 16 Del. C. § 2903

[vii]Id

[viii] Id

[ix] Id

[x] Id

[xi] CDR 16-4000-4452

[xii] CDR 16-4000-4452 (2.1.1)

[xiii] CDR 16-4000-4452 ( 2.1.2) 

[xiv] CDR 16-4000-4452  (2.1.3) 

[xv] CDR 16-4000-4452  (2.1.4) 

[xvi] CDR 16-4000-4452  (2.1.5) 

[xvii] CDR 16-4000-4452 (2.2)

[xviii] 16 Del. C. § 2904

[xix] Id

[xx] Id

[xxi] Id

[xxii] Id

[xxiii] CDR 16-4000-4452 (3.0)

[xxiv] CDR 16-4000-4452 (3.1.1)

[xxv]  CDR 16-4000-4452 (3.1.2)

[xxvi]  CDR 16-4000-4452 (3.1.3)

[xxvii]  CDR 16-4000-4452 (3.1.4)

[xxviii] CDR 16-4000-4452 (3.1.5)

[xxix] CDR 16-4000-4452 (3.1.6)

[xxx]  CDR 16-4000-4452 (3.1.7)

[xxxi] 16 Del. C. § 2905

[xxxii] Id

[xxxiii] Id

[xxxiv]CDR 16-4000-4452 (4.1.1)

[xxxv] Id. 

[xxxvi] 16 Del. C. § 2907

[xxxvii] Id

[xxxviii] CDR 16-4000-4452 (5.1)

[xxxix] CDR 16-4000-4452 (5.2)

[xl] CDR 16-4000-4452 (5.3)


Inside Smoking Regulations in Delaware