Third 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 57-22-5, as enacted by Chapter 314, Laws of Utah 1990
13 78-38-1, as last amended by Chapter 69, Laws of Utah 1996
14 ENACTS:
15 78-38-.5, Utah Code Annotated 1953
16 Be it enacted by the Legislature of the state of Utah:
17 Section 1. Section 57-8-16 is amended to read:
18 57-8-16. Contents of bylaws.
19 The bylaws may provide for the following:
20 (1) the establishment of a management committee, the number of persons constituting the
21 committee and the method of selecting the members of the committee; the powers and duties of
22 the management committee; and whether or not the management committee may engage the
23 services of a manager[.];
24 (2) the method of calling meetings of the unit owners; what percentage of the unit owners
25 shall constitute a quorum, and be authorized to transact business[.];
26 (3) the maintenance, repair, and replacement of the common areas and facilities and
27 payment therefor[.];

1 (4) the manner of collecting from the unit owners their share of the common expenses[.];
2 (5) the designation and removal of personnel necessary for the maintenance, repair, and
3 replacement of the common areas and facilities[.];
4 (6) the method of adopting and of amending administrative rules and regulations
5 governing the details of the operation and use of the common areas and facilities[.];
6 (7) [Such] (a) restrictions on and requirements respecting the use and maintenance of the
7 units and the use of the common areas and facilities as are designed to prevent unreasonable
8 interference with the use of their respective units and of the common areas and facilities by the
9 several unit owners[.]; and
10 (b) restrictions regarding the use of the units may include other prohibitions on, or
11 allowance of, smoking tobacco products;
12 (8) the percentage of votes required to amend the bylaws[.]; and
13 (9) other provisions as may be [deemed] considered necessary for the administration of
14 the property consistent with this act.
15 Section 2. Section 57-22-5 is amended to read:
16 57-22-5. Renter's duties -- Cleanliness and sanitation -- Compliance with written
17 agreement -- Destruction of property, interference with peaceful enjoyment prohibited.
18 (1) Each renter shall:
19 (a) comply with the rules of the board of health having jurisdiction in the area in which
20 the residential rental unit is located which materially affect physical health and safety;
21 (b) maintain the premises occupied in a clean and safe condition and shall not
22 unreasonably burden any common area;
23 (c) dispose of all garbage and other waste in a clean and safe manner;
24 (d) maintain all plumbing fixtures in as sanitary a condition as the fixtures permit;
25 (e) use all electrical, plumbing, sanitary, heating, and other facilities and appliances in a
26 reasonable manner;
27 (f) occupy the residential rental unit in the manner for which it was designed, but the renter
28 may not increase the number of occupants above that specified in the rental agreement without
29 written permission of the owner;
30 (g) be current on all payments required by the rental agreement; and
31 (h) comply with all appropriate requirements of the rental agreement between the owner

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1 and the renter, which may include either a prohibition on, or the allowance of, smoking tobacco
2 products within the residential rental unit, or on the premises, or both.
3 (2) No renter may:
4 (a) intentionally or negligently destroy, deface, damage, impair, or remove any part of the
5 residential rental unit or knowingly permit any person to do so;
6 (b) interfere with the peaceful enjoyment of the residential rental unit of another renter;
7 or
8 (c) unreasonably deny access to, refuse entry to, or withhold consent to enter the
9 residential rental unit to the owner, agent, or manager for the purpose of making repairs to the unit.
10 Section 3. Section 78-38-.5 is enacted to read:
11 78-38-.5. Legislative intent.
12 (1) The Legislature finds:
13 (a) the federal Environmental Protection Agency (EPA) has determined that environmental
14 tobacco smoke is a Group A carcinogen, in the same category as other cancer-causing chemicals
15 such as asbestos;
16 (b) the EPA has determined that there is no acceptable level of exposure to Class A
17 carcinogens; and
18 (c) the EPA has determined that exposure to environmental tobacco smoke also causes an
19 increase in respiratory diseases and disorders among exposed persons.
20 (2) The Legislature finds that environmental tobacco smoke generated in a rental or
21 condominium unit may drift into other units, exposing the occupants of those units to tobacco
22 smoke, and that standard construction practices are not effective in preventing this drift of tobacco
23 smoke.
24 (3) The Legislature further finds that persons who desire to not be exposed to drifting
25 environmental tobacco smoke should be able to determine in advance of entering into a rental,
26 lease, or purchase agreement whether the subject unit may be exposed to environmental tobacco
27 smoke.
28 Section 4. Section 78-38-1 is amended to read:
29 78-38-1. Nuisance defined -- Right of action for -- Judgment.
30 (1) A nuisance is anything which is injurious to health, indecent, offensive to the senses,
31 or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of

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1 life or property. A nuisance may be the subject of an action.
2 (2) A nuisance may include the following:
3 (a) drug houses and drug dealing as provided in Section 78-38-9;
4 (b) gambling as provided in Title 76, Chapter 10, Part 11;
5 (c) criminal activity committed in concert with two or more persons as provided in Section
6 76-3-203.1;
7 (d) party houses which frequently create conditions defined in Subsection (1); and
8 (e) prostitution as provided in Title 76, Chapter 10, Part 13.
9 (3) A nuisance under this section includes tobacco smoke that drifts into any residential
10 unit a person rents, leases, or owns, and this smoke:
11 (a) drifts in more than once in each of two or more consecutive seven-day periods; and
12 (b) creates any of the conditions under Subsection (1).
13 (4) Subsection (3) does not apply to:
14 (a) residential rental units available for temporary rental, such as for vacations, or available
15 for only 30 or fewer days at a time; or
16 (b) hotel or motel rooms.
17 (5) Subsection (3) does not apply to any unit that is part of a timeshare project, as defined
18 in Section 57-19-2, or subject to a timeshare interest as defined in Section 57-19-2.
19 [(3)] (6) An action may be brought by any person whose property is injuriously affected,
20 or whose personal enjoyment is lessened by the nuisance.
21 (7) Upon judgment, the nuisance may be enjoined or abated, and damages may be
22 recovered.
23 (8) There is no cause of action for a nuisance under Subsection (3) if the rental, lease,
24 restrictive covenant, or purchase agreement for the unit states in writing that:
25 (a) smoking is allowed in other units, either residential or commercial, and that tobacco
26 smoke from those units may drift into the unit that is subject of the agreement; and
27 (b) by his signature the renter, lessee, or buyer acknowledges he has been informed that
28 tobacco smoke may drift into the unit he is renting, leasing, or purchasing, and he waives any right
29 to a cause of action for a nuisance under Subsection (3).
30 (9) A cause of action for a nuisance under Subsection (3) may be brought against:
31 (a) the individual generating the tobacco smoke;

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1 (b) the renter or lessee who permits or fails to control the generation of tobacco smoke,
2 in violation of the terms of his rental or lease agreement, on the premises he rents or leases; or
3 (c) the landlord, but only if:
4 (i) the terms of the renter's or lessee's contract provide the unit will not be subject to the
5 nuisance of drifting tobacco smoke;
6 (ii) the complaining renter or lessee has provided to the landlord a statement in writing
7 indicating that tobacco smoke is creating a nuisance in the renter's or lessee's unit; and
8 (iii) the landlord knowingly allows the continuation of a nuisance under Subsection (3)
9 after receipt of written notice under Subsection (c)(ii), and in violation of the terms of the rental
10 or lease agreement under Subsection (c)(i).

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