10.19.04.12

.12 Waivers.

A. A person may apply to the health officer for a waiver from the application of a specific provision of this chapter.

B. The Department shall provide a waiver application on the Department's website.

C. An applicant for a waiver shall establish that:

(1) Compliance with a specific provision of this chapter would cause undue financial hardship, as defined in §§D and E of this regulation; or

(2) The existence of other factors would render compliance with this chapter unreasonable.

D. Except as provided in §E of this regulation, an undue financial hardship may be found to exist, based on:

(1) An establishment's demonstration that:

(a) A reduction occurred of at least 15 percent in gross sales from the sale of food and beverages for a period of 2 consecutive months during which the establishment has operated smoke-free compared to the combined average of gross sales from the sale of food and beverages during the same 2 consecutive month period in the 2 years immediately before smoke-free operation; and

(b) The establishment's purported reduction in gross sales from the sale of food and beverages has occurred under similar operational conditions, other than the presence of a smoke-free environment, and is not due to other factors; or

(2) An establishment's demonstration that the owner is unable to recover the costs associated with a capital improvement project that was initiated before May 17, 2007, and was designed to provide a partial smoke-free environment at the facility.

E. If an establishment has not operated for a period of 2 years before February 1, 2008, the establishment shall demonstrate the requirement for undue financial hardship as set forth in §D(1) of this regulation by comparing a period of 3 consecutive months during which the establishment has operated smoke-free to the same 3 month period of the previous year or if the establishment was not operating at that time, to the 3 month period immediately preceding February 1, 2008.

F. The applicant for a waiver shall demonstrate how, if a waiver would be granted, the applicant will achieve full compliance with the provisions of the Act and this chapter by January 31, 2011.

G. Within 90 days from the receipt of a completed waiver application, the health officer may grant or deny a waiver to one or more specific provisions of this chapter, based on the criteria set forth in this regulation.

H. In granting a waiver, the health officer shall specify:

(1) The actions the applicant shall take that will result in the applicant's achievement of full compliance with the provisions of this chapter by January 31, 2011; and

(2) Any additional requirements to minimize the adverse effects of the waiver on individuals involuntarily exposed to secondhand smoke.

I. A person may not apply for a waiver after January 31, 2011.

J. A health officer may not grant a waiver after January 31, 2011.

K. A person may appeal a health officer's waiver denial in the same manner and subject to the same provisions provided for a violation and a penalty in Regulation .11 of this chapter.