Hawaii Administrative Rules
Title 11 - DEPARTMENT OF HEALTH
Subtitle 1 - GENERAL DEPARTMENTAL PROVISIONS
Chapter 81 - SMOKING IN WORK PLACES AND PUBLIC PLACES
Section 11-81-2 - Reasonable distance; interim exemption
Universal Citation: HI Admin Rules 11-81-2
Current through February, 2024
(a) An owner, operator, manager, employer, or other person who owns or controls a place open to the public or place of employment covered by the provisions of sections 328J-3 or 328J-4, HRS, may apply to the department for an interim exemption to the reasonable distance presumption in section 328J-6, HRS. The application shall include:
(1) A
completed application form;
(2) A
floor plan to scale (1/4" or 1/8" = 1' -0") of the place open to the public or
place of employment with all entrances, exits, windows that open and
ventilation intakes clearly labeled;
(3) A floor plan to scale (1/8" or 1/16" = 1'
- 0") of the place open to the public or place of employment including all
entrances, exits, windows that open, and ventilation intakes in the area within
the 30 feet surrounding the area for which an interim exemption is sought. This
floor plan shall identify by name all adjoining property owners, lessees, and
tenants whose premises are within 30 feet of the area for which an interim
exemption is sought;
(4) An
elevation plan drawn to scale (1/8" or 1/16" = 1' - 0") of the place open to
the public or place of employment including all entrances, exits, windows that
open, and ventilation intakes in the area within 30 feet of area for which an
interim exemption is sought. The elevation plan shall identify by name all
adjoining property owners, lessees, and tenants within 30 feet of the place
open to the public or place of employment including vertically adjoining
property owners, lessees, and tenants; and
(5) Affidavits signed by each adjoining
property owner, lessee, and tenant located within 30 feet of the area for which
an interim exemption is sought attesting to their knowledge of and support for
the interim exempt ion.
(b) In reviewing an application for an interim exemption from the reasonable distance presumption of section 328J-6, HRS, the department shall:
(1) Determine if
the applicant has submitted the documents required under subsection (a) If the
applicant has not submitted the required documents or if the documents are
incomplete, the department shall notify the applicant of the missing or
incomplete documents and shall provide the applicant ten business days to
provide or complete the required, documents. If the required or completed
documents are not provided to the department within ten business days of the
sending of the notice, the department shall automatically reject the
application;
(2) Reject any
application for an interim exemption of less than twelve feet. Any application
for an interim exemption of less than twelve feet is by rule conclusively
presumed to be unreasonable and shall be rejected; and
(3) If the application and documents are
complete, review the application and the documents required under subsection
(a).
(c) Within 180 days of receipt of all documents required under subsection (a), the department shall grant an interim exemption subject to the following conditions;
(1) Sixty calendar days after the issuance of
an interim exemption, the applicant shall submit new affidavits signed by each
adjacent property owner, lessee, and tenant located within 30 feet of the area
for which an interim exemption is sought, that there has been no infiltration
of tobacco smoke into their premises. If the interim exemption holder fails to
submit these affidavits within ten business days of the sixtieth day following
the issuance of an interim exemption, the department shall automatically cancel
the interim exemption and shall notify the holder of the
cancellation;
(2) If within sixty
days following the issuance Of an interim exemption, the department has
received a written complaint signed by any person claiming to be an adjoining
property owner, lessee, or tenant located within 30 feet of the area for which
the interim exemption has been issued, the department shall investigate the
complaint. If the department, determines that:
(A) the complaint is from an owner, lessee,
or tenant located within 30 feet of the area for which an interim exemption has
been issued and
(B) the owner,
lessee, or tenant located within 30 feet of the area for which an interim
exemption has been issued claims that tobacco smoke from the area for which an
interim exemption has been issued has infiltrated their property, the
department shall automatically cancel the interim exemption and shall notify
the holder of the cancellation;
(3) At any time after issuance of an interim
exemption, if a written complaint signed by a property owner, lessee, or tenant
located within 30 feet of the area for which an interim exemption has been
issued that claims that smoke is infiltrating into the property of a property
owner, lessee, or tenant located within 30 feet of the area for which an
interim exemption has been issued, the department shall investigate the
complaint. If the department determines that:
(A) the complaint is from an owner, lessee,
or tenant located within 30 feet of the area for which an interim exemption has
been issued and
(B) the owner,
lessee, or tenant located within 30 feet of the area for which an interim
exemption has been issued claims that tobacco smoke from the area for which an
interim exemption has been issued has infiltrated their property, the
department shall automatically cancel the interim exemption and shall notify
the holder of the cancellation; and
(4) An interim exemption shall be valid
indefinitely until cancelled by the department.
(d) The affidavits required by this section shall not be unreasonably withheld by a property owner, lessee, or tenant located within 30 feet of the area for which an interim exemption is sought or has been issued.
(e) For purposes of this section, the "area for which an interim exemption is sought or has been issued" is the area between 12 and 20 feet in all directions of the entrance, exit, window that opens, or ventilation, intake for which an interim exemption is sought or has been issued.
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