Second Substitute S.B. 49

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SECOND HAND SMOKE AMENDMENTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Lane Beattie
5 AN ACT RELATING TO HEALTH; CLARIFYING THAT DRIFTING TOBACCO SMOKE IS
6 A NUISANCE UNDER SPECIFIED CIRCUMSTANCES; PROVIDING THAT
7 RESIDENTIAL UNIT RENTAL AND PURCHASE AGREEMENTS MAY PROHIBIT
8 GENERATION OF TOBACCO SMOKE; AND PROVIDING LEGISLATIVE INTENT.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 57-8-16, as enacted by Chapter 111, Laws of Utah 1963
12 57-17-1, as enacted by Chapter 74, Laws of Utah 1981
13 57-22-5, as enacted by Chapter 314, Laws of Utah 1990
14 78-38-1, as last amended by Chapter 69, Laws of Utah 1996
15 ENACTS:
16 78-38-.5, Utah Code Annotated 1953
17 Be it enacted by the Legislature of the state of Utah:
18 Section 1. Section 57-8-16 is amended to read:
19 57-8-16. Contents of bylaws.
20 The bylaws may provide for the following:
21 (1) the establishment of a management committee, the number of persons constituting the
22 committee and the method of selecting the members of the committee; the powers and duties of
23 the management committee; and whether or not the management committee may engage the
24 services of a manager[.];
25 (2) the method of calling meetings of the unit owners; what percentage of the unit owners
26 shall constitute a quorum, and be authorized to transact business[.];
27 (3) the maintenance, repair, and replacement of the common areas and facilities and

1 payment therefor[.];
2 (4) the manner of collecting from the unit owners their share of the common expenses[.];
3 (5) the designation and removal of personnel necessary for the maintenance, repair, and
4 replacement of the common areas and facilities[.];
5 (6) the method of adopting and of amending administrative rules and regulations
6 governing the details of the operation and use of the common areas and facilities[.];
7 (7) [Such] (a) restrictions on and requirements respecting the use and maintenance of the
8 units and the use of the common areas and facilities as are designed to prevent unreasonable
9 interference with the use of their respective units and of the common areas and facilities by the
10 several unit owners[.]; and
11 (b) restrictions regarding the use of the units may include other prohibitions on, or
12 allowance of, smoking tobacco products;
13 (8) the percentage of votes required to amend the bylaws[.]; and
14 (9) other provisions as may be [deemed] considered necessary for the administration of
15 the property consistent with this act.
16 Section 2. Section 57-17-1 is amended to read:
17 57-17-1. Return or explanation of retainage upon termination of tenancy.
18 (1) Owners or designated agents requiring deposits however denominated from renters
19 leasing or renting residential dwelling units shall either:
20 (a) return those deposits at the termination of the tenancy; or
21 (b) provide the renter with written notice explaining why any deposit refundable under the
22 terms of the lease or rental agreement is being retained.
23 (2) Violation of a written rental or lease agreement provision prohibiting tobacco products
24 in the unit is a ground for retaining an otherwise refundable deposit.
25 Section 3. Section 57-22-5 is amended to read:
26 57-22-5. Renter's duties -- Cleanliness and sanitation -- Compliance with written
27 agreement -- Destruction of property, interference with peaceful enjoyment prohibited.
28 (1) Each renter shall:
29 (a) comply with the rules of the board of health having jurisdiction in the area in which
30 the residential rental unit is located which materially affect physical health and safety;
31 (b) maintain the premises occupied in a clean and safe condition and shall not

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1 unreasonably burden any common area;
2 (c) dispose of all garbage and other waste in a clean and safe manner;
3 (d) maintain all plumbing fixtures in as sanitary a condition as the fixtures permit;
4 (e) use all electrical, plumbing, sanitary, heating, and other facilities and appliances in a
5 reasonable manner;
6 (f) occupy the residential rental unit in the manner for which it was designed, but the renter
7 may not increase the number of occupants above that specified in the rental agreement without
8 written permission of the owner;
9 (g) be current on all payments required by the rental agreement; and
10 (h) comply with all appropriate requirements of the rental agreement between the owner
11 and the renter, which may include either a prohibition on, or the allowance of, smoking tobacco
12 products within the residential rental unit, or on the premises, or both.
13 (2) No renter may:
14 (a) intentionally or negligently destroy, deface, damage, impair, or remove any part of the
15 residential rental unit or knowingly permit any person to do so;
16 (b) interfere with the peaceful enjoyment of the residential rental unit of another renter,
17 including the generation of tobacco smoke that drifts into the residential rental unit of another; or
18 (c) unreasonably deny access to, refuse entry to, or withhold consent to enter the
19 residential rental unit to the owner, agent, or manager for the purpose of making repairs to the unit.
20 Section 4. Section 78-38-.5 is enacted to read:
21 78-38-.5. Legislative intent.
22 (1) The Legislature finds:
23 (a) the federal Environmental Protection Agency (EPA) has determined that environmental
24 tobacco smoke is a Group A carcinogen, in the same category as other cancer-causing chemicals
25 such as asbestos;
26 (b) the EPA has determined that there is no acceptable level of exposure to Class A
27 carcinogens; and
28 (c) the EPA has determined that exposure to environmental tobacco smoke also causes an
29 increase in respiratory diseases and disorders among exposed persons.
30 (2) The Legislature finds that environmental tobacco smoke generated in a rental or
31 condominium unit may drift into other units, exposing the occupants of those units to tobacco

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1 smoke, and that standard construction practices are not effective in preventing this drift of tobacco
2 smoke.
3 (3) The Legislature further finds that persons who desire to not be exposed to drifting
4 environmental tobacco smoke should be able to determine in advance of entering into a rental,
5 lease, or purchase agreement whether the subject unit may be exposed to environmental tobacco
6 smoke.
7 (4) The Legislature further finds that if tobacco smoke regularly drifts into a unit, and the
8 renter, lessee, or purchaser of the unit was not advised in the rental, lease, or purchase agreement
9 that environmental tobacco smoke may drift into the unit, that person should have a cause of action
10 for a nuisance under state law.
11 Section 5. Section 78-38-1 is amended to read:
12 78-38-1. Nuisance defined -- Right of action for -- Judgment.
13 (1) A nuisance is anything which is injurious to health, indecent, offensive to the senses,
14 or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of
15 life or property. A nuisance may be the subject of an action.
16 (2) A nuisance may include the following:
17 (a) drug houses and drug dealing as provided in Section 78-38-9;
18 (b) gambling as provided in Title 76, Chapter 10, Part 11;
19 (c) criminal activity committed in concert with two or more persons as provided in Section
20 76-3-203.1;
21 (d) party houses which frequently create conditions defined in Subsection (1); and
22 (e) prostitution as provided in Title 76, Chapter 10, Part 13.
23 (3) A nuisance under this section includes tobacco smoke that drifts into any unit rented,
24 leased, or owned by the plaintiff and this smoke:
25 (a) drifts in more than once in each of two or more consecutive seven-day periods; and
26 (b) creates any of the conditions under Subsection (1).
27 (4) Subsection (3) does not apply to residential rental units that are available:
28 (a) for temporary rental, such as for vacations; and
29 (b) for only 30 or fewer days at a time.
30 [(3)] (5) An action may be brought by any person whose property is injuriously affected,
31 or whose personal enjoyment is lessened by the nuisance.

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1 (6) Upon judgment[,]:
2 (a) the nuisance may be enjoined or abated, and damages may be recovered[.] by the
3 prevailing party; and
4 (b) under Subsections (2)(a), (b), (c), and (e) and Subsection (3) costs and attorneys' fees
5 may also be covered by the prevailing party.
6 (7) There is no cause of action for a nuisance under Subsection (3) if the rental, lease, or
7 purchase agreement for the unit states in writing that:
8 (a) smoking is allowed in other units and that tobacco smoke from those units may drift
9 into the unit that is subject of the agreement; and
10 (b) by his signature the renter, lessee, or buyer acknowledges he has been informed that
11 tobacco smoke may drift into the unit he is renting, leasing, or purchasing, and he waives any right
12 to a cause of action for a nuisance under Subsection (3).
13 (8) A cause of action for a nuisance under Subsection (3) may be brought against:
14 (a) the individual generating the tobacco smoke;
15 (b) the renter or lessee who permits or fails to control the generation of tobacco smoke,
16 in violation of the terms of the rental or lease agreement, on the premises he rents or leases; or
17 (c) the landlord, but only if he knowingly allows creation of a nuisance under Subsection
18 (3) in violation of the terms of a rental or lease agreement.

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