Civil Division - New Castle County November 26, 2002




The Honorable Vincent P. Meconi
Secretary

Department of Health and Social Services
Herman M. Holloway, Sr. Campus
1901 N. duPont Highway - Main Bldg.
New Castle, DE 19720



Re: The Clean Indoor Air Act


Dear Secretary Meconi:


You have asked whether "private clubs" are subject to the Clean Indoor Air Act ("Act"), 16 Del.C. Chapter 29. For the reasons set forth below, we conclude that "private clubs" are not subject to the Clean Indoor Air Act. 

Our analysis begins with an overview of the Clean Indoor Air Act. The Act prohibits smoking generally in certain indoor areas and then lists, without limitation, 27 indoor areas where smoking is prohibited. The certain indoor areas where smoking is prohibited are areas "to which the general public is invited or in which the general public is permitted." 16 Del.C. §2903(a). Each of the 27 indoor areas in which the Act expressly prohibits smoking is an area to which the general public has access. The Act then lists 6 types of areas in which the Act does not prohibit smoking. These areas primarily involve areas to which the general public does not have access. 16 Del.C. §2904. The remaining exemptions include enclosed area to which the public clearly has access -- fund-raising activities and functions of volunteer fire companies, ambulance and rescue companies under Section 2904(5) and fraternal benefit societies under Section 2904(6). Finally, the Act permits DHSS to waive the smoking prohibitions imposed by §2903 of the Act if DHSS "determine[s] that there are compelling reasons to do so, and such waiver will not significantly affect the health and comfort of non-consumers of tobacco products." 29 Del.C. §2906.

Nowhere in the Act does the term "private clubs" appear. The Act uses different terminology. Under the Act, the ban against smoking in an indoor area applies in any "enclosed area to which the general public is invited or in which the general public is permitted," unless such area is specifically exempted from the Act. The question you ask relates to the interplay between the words "private club" and this statutory language. The question is whether private clubs are excluded from the Act if they are not occupying an "enclosed area to which the general public is invited or in which the general public is permitted" unless specifically provided otherwise in the Act. 

The question you ask involves issues of statutory interpretation. The applicable principles of statutory interpretation are well-established. "To apply a statute the fundamental rule is to ascertain and give effect to the intent of the legislature. (Citations omitted). If the statute as a whole is unambiguous, there is no reasonable doubt as to the meaning of the words used and the Court's role is then limited to an application of the literal meaning of the words. Coastal Barge Corporation v. Coastal Zone Industrial Control Board, Del. Supr., 492 A.2d 1242, 1246 (1985). "A statute is passed by the General Assembly as a whole and not in parts or sections. Consequently, each part or section should be read in light of every other part or section to produce it an harmonious whole." Id. at 1245. Each of these principles is relevant to the interpretation of the Clean Indoor Air Act.

Application of these principles compels us to conclude that the General Assembly did not intend to subject private indoor areas to the smoking prohibition of the Act. We interpret the words "enclosed area to which the general public is invited or in which the general public is permitted" in accordance with their common meaning to prohibit smoking only in areas accessible to the public. This conclusion is consistent with a reading of the Clean Indoor Air Act as a whole. The Act expressly exempts private indoor enclosed areas from the application of the smoking ban. 16 Del.C. §2904. Moreover, it is evident that the General Assembly contemplated that private indoor enclosed areas would include areas used by private clubs. The General Assembly recognized the public nature of fund-raising activities and functions sponsored by private clubs as distinct from the internal operations of private clubs when it enacted Section 2904(5)and (6). These provisions exempt certain private clubs from the Act's smoking ban during the clubs' functions that are open to the public. It follows that the General Assembly recognized that fund-raising activities and functions sponsored by private clubs, including those listed in Section 2904(5) and(6), are public in nature and subject to the Act, but for the specific exemptions provided by Section 2904(5) or (6). The remaining routine operations occur in areas that are private and off-limits to the public and so are not covered by the Act. Finally, this interpretation is consistent with the legislative intent codified in the Act. The General Assembly found that environmental tobacco smoke should be prohibited in "most indoor areas open to the public" but that the ban should not apply to "certain designated public areas and in private places." 16 Del.C. §2901.

This interpretation is consistent with the interpretation of similar laws in other jurisdictions.(1) The Supreme Court of Nebraska ruled that where there are no restrictions on a membership sports team, membership is open to the general public. Loewenstein v. Amateur Softball Association of America, 418 N.W. 2d 231, 233 (1988). In construing the term "general public" in connection with a discrimination complaint, the Supreme Court of Iowa determined that a class of persons characterized by 15 criteria did not constitute the "general public." Good v. Iowa Civil Rights Commission, Iowa Supr., 368 N.W. 2d 151, 155-156 (1985). Subsequent to and in reliance on the Good decision, the Attorney General of Iowa issued an opinion on the question whether a private club is exempt from a smoking ban imposed against an indoor enclosed area used by the general public. Iowa Attorney General Opinion No. 91-6-6(L) (June 28, 1991). The Iowa Attorney General wrote "[a]pplying these interpretations to the question at hand, i.e., whether a private club frequented only by members and their invited guests, such as a country club is, according to Iowa Code §98A.1(2), an enclosed indoor area used by the general public, it is our considered opinion that such a club would not be an indoor enclosed area used by the 'general public.'" Id. at 3. 

We conclude that the words "enclosed area to which the general public is invited or in which the general public is permitted" as used in the Clean Indoor Air Act are intended to exclude indoor enclosed areas used by private clubs. We emphasize, however, that at any time during which the private club permits access by the general public to its indoor enclosed area, that indoor enclosed area is subject to the Act. Under such circumstances, it would be exempt from the smoking ban imposed by the Act only if it falls within the exemptions contained in §2904 or if it obtained a waiver pursuant to §2906.

Although the foregoing addresses your question whether a private club is subject to the smoking ban imposed by the Act, we believe some additional discussion is warranted. We offer an analysis of what constitutes a private club to assist DHSS in its enforcement obligations under the Act.

Identifying the indicia of a private club has been the subject of extensive litigation, often in connection with civil rights and equal accommodation laws. Whether an organization is a private club is a fact intensive analysis. Some criteria that have been developed include whether the organization has permanent machinery to carefully screen applicants on subjective rather than objective factors, whether the organization limits the use of the facilities and services of the organization to members and guests of the members, whether the organization is controlled by its membership, whether the organization is operated solely for the benefit and pleasure of its members, and whether the organization directs its publicity exclusively and only to members. New York State Club Association, Inc. v. City of New York, Ct. App. 513 N.Y.S. 2d 349, 353 (1987); Wright v. Cork Club, 315 F. Supp. 1143, 1153 (1970). Even where members must be approved by a "membership committee," an organization may be ruled public if no applicant is ever rejected. Olzman v. Lake Hills Swim Club, 495 F. 2d 1333 (2d Cir. 1974); Smith v. YMCA of Montgomery, 462 F. 2d 634 (11th Cir. 1972). An organization that charges "membership fees" that are in fact no more than cover charges may be deemed not a private club. Dreamland and Ballroom and Social Dance Club, Inc. v. City of Ft. Lauderdale, CT App, 789 So. 2d 1099, 1103 (2001). These criteria are permissive, and no organization need meet each criterion to be considered private. If DHSS intends to rely upon a list of established criteria based on the discussion above, it should promulgate those criteria via regulation pursuant to the Administrative Procedures Act, 29 Del.C. Ch. 101. DHSS should begin consideration of appropriate criteria for a proposed regulation similar to the proposed regulation that we drafted for DHSS' consideration on the private club issue during early October.
We trust this covers the questions you have asked. Please do not hesitate to contact us if you need further guidance.

Very truly your



Calvin L. Scott, Jr.

Deputy Attorney General



A. Ann Woolfolk

Deputy Attorney General



Approved:

Malcolm S. Cobin, 

State Solicitor




cc: The Honorable M. Jane Brady



i:\Aaw\DHSS\MeconiCleanAirAct.ltr

1. Delaware's Equal Accommodations law defines public accommodation to mean "any establishment which caters to or offers goods or services or facilities to, or solicits patronage from, the general public. 6 Del.C. §4502. However, there is no Delaware case law that construes the meaning of "general public" as it is used in that law.

We are mindful of State v. Elliot, Del. Super., 548 A.2d 28(1988) but conclude that it is inapposite. Elliot addressed the issue whether persons picketing an abortion clinic were entitled to picket on clinic property. One salient fact was that the picketers were neither permitted nor invited to be on the property of the clinic. The Clean Indoor Air Act, in contrast, applies only to indoor enclosed areas "to which the general public is invited or in which the general public is permitted."