PRINTER'S NO. 1878
No. 1541 Session of 2007
INTRODUCED BY GERBER, KENNEY, SHIMKUS, CARROLL, McILHATTAN,
K. SMITH, TURZAI, BENNINGTON, BISHOP, BLACKWELL, BRENNAN,
CAPPELLI, CLYMER, COHEN, CRUZ, DALEY, DALLY, DeLUCA,
DePASQUALE, FRANKEL, FREEMAN, GIBBONS, GINGRICH, HORNAMAN,
JOSEPHS, KILLION, KIRKLAND, LEACH, LENTZ, MARKOSEK, McCALL,
McILVAINE SMITH, MELIO, MOYER, MUNDY, MURT, MUSTIO, PHILLIPS,
REICHLEY, ROEBUCK, RUBLEY, SAMUELSON, SEIP, SIPTROTH,
M. SMITH, STEIL, SWANGER, TANGRETTI, TRUE, WALKO AND WATSON,
JUNE 11, 2007
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES,
JUNE 11, 2007
AN ACT
1 Establishing the Smoke Free Pennsylvania Act; prohibiting
2 smoking in enclosed and substantially enclosed areas;
3 imposing duties upon the Department of Health; imposing
4 penalties; and making a related repeal.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Smoke Free
9 Pennsylvania Act.
10 Section 2. Legislative findings and purpose.
11 (a) Findings.--The General Assembly finds as follows:
12 (1) The use of tobacco products is dangerous not only to
13 the person smoking, but also to nonsmokers who must breath
14 the contaminated air.
15 (2) The Department of Environmental Protection has
1 classified secondhand tobacco smoke as a Class A carcinogen,
2 a classification reserved for the most lethal environmental
3 hazards, such as asbestos, benzene, formaldehyde and radon.
4 (3) Approximately 53,000 nonsmokers in the United States
5 die annually from lung and heart disease due to exposure to
6 passive smoke.
7 (4) Three hundred thousand children exposed to tobacco
8 smoke have increased frequency of lower respiratory
9 infections, such as pneumonia and bronchitis.
10 (5) Second hand smoke exposure has been linked to sudden
11 infant death syndrome.
12 (6) Tobacco smoke is also responsible for up to
13 1,000,000 attacks of asthma, 8,000 to 26,000 new cases of
14 asthma and significant reduction in lung function and causes
15 serious middle ear infections among children each year.
16 (7) In a comprehensive report released by the Office of
17 the Surgeon General in June 2006, there is no risk-free level
18 of exposure to secondhand smoke. Nonsmokers exposed to
19 secondhand smoke face up to a 30% risk of developing heart
20 disease and lung cancer.
21 (b) Purpose.--The General Assembly intends to protect the
22 public health, the comfort of all persons and the environment by
23 prohibiting smoking in public places and workplaces.
24 Section 3. Definitions.
25 The following words and phrases when used in this act shall
26 have the meanings given to them in this section unless the
27 context clearly indicates otherwise:
28 "Bar." Any area, enclosed or substantially enclosed, devoted
29 to the sale and service of alcoholic beverages for on-premises
30 consumption and where the service of food is only incidental to
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1 the consumption of such beverages.
2 "Cigar bar." Any area, enclosed or substantially enclosed,
3 devoted to the sale and service of tobacco products and
4 accessories and the rental of onsite humidors for on-premises
5 consumption where the service of food and alcoholic beverages
6 generated 25% or less of its annual gross income in the calendar
7 year ending December 31, 2005, and, on an ongoing basis, the
8 calendar year preceding an establishment's claim of being a
9 cigar bar.
10 "Department." The Department of Health of the Commonwealth.
11 "Enclosed." Having a ceiling or roof, except for doors,
12 windows or passageways, wholly enclosed either on a permanent or
13 temporary basis.
14 "Enforcement officer." The board of health of a county or in
15 a county that does not have a board of health, the department.
16 "Government housing facility." Government-owned, multiple-
17 unit residential facilities.
18 "Health care facility." Any health care facility providing
19 clinically related health services, including, but not limited
20 to, a general or special hospital, including psychiatric
21 hospitals, rehabilitation hospitals, ambulatory surgical
22 facilities, long-term care nursing facilities, cancer treatment
23 centers using radiation therapy or special hospital, including
24 psychiatric hospitals, rehabilitation hospitals, ambulatory
25 surgical facilities, long-term care nursing facilities, cancer
26 treatment centers using radiation therapy on an ambulatory basis
27 and inpatient drug and alcohol treatment facilities, both profit
28 and nonprofit and including those operated by an agency or State
29 or local government. The term shall also include a hospice.
30 "Restaurant." Any area, enclosed or substantially enclosed,
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1 devoted to the sale or service of food.
2 "Retail tobacco business." A sole proprietorship, limited
3 liability company, corporation, partnership or other enterprise
4 in which the primary activity is the retail sale of tobacco
5 products and accessories where the sale of goods generated 25%
6 or less of its annual gross income in the calendar year ending
7 December 31, 2005, and, on an ongoing basis, the calendar year
8 preceding an establishment's claim of being a retail tobacco
9 business.
10 "School grounds." A building or structure located within a
11 public or private preschool, nursery school, elementary or
12 secondary school's legally defined property boundaries and any
13 vehicles used to transport children or school personnel.
14 "Smoking." The burning of a lighted cigar, cigarette, pipe
15 or any other matter or substance which contains tobacco.
16 "Substantially enclosed." Having a ceiling or roof, with an
17 opening in the walls constituting less than half the total area
18 of the walls. The area of the opening does not include doors,
19 windows or other fittings opened or shut.
20 "Workplace." An enclosed or substantially enclosed area
21 serving as a place of employment, occupation, business, trade,
22 craft, profession or volunteer activity, including employer-
23 owned vehicles with more than one occupant.
24 Section 4. Smoking restrictions.
25 (a) Restrictions.--Smoking shall not be permitted and no
26 individual shall smoke in any of the following areas if they are
27 enclosed or substantially enclosed areas:
28 (1) Workplaces.
29 (2) Bars.
30 (3) Restaurants.
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1 (4) Enclosed or substantially enclosed areas open to the
2 public.
3 (5) Means of mass transportation, including subways,
4 buses, trains, taxicabs and limousines.
5 (6) Ticketing, boarding and waiting areas in public
6 transportation terminals, including, but not limited to,
7 underground subway stations, train stations and bus stations.
8 (7) A public or private facility that houses or treats
9 children and youth in State or county custody, including
10 youth detention centers, group homes and private homes.
11 (8) A public or private facility, including a private
12 home that provides child-care and/or adult day-care services.
13 (9) School facilities.
14 (10) Public and private colleges, universities and other
15 educational and vocational institutions.
16 (11) Health care or government housing facilities. This
17 paragraph, however, shall not prohibit smoking by patients or
18 residents in separate enclosed rooms of residential health
19 care facilities, government housing facilities, adult care
20 facilities, community mental health residences or facilities
21 where day treatment programs are provided, which are
22 designated as smoking rooms for patients of the facilities or
23 programs, or in private residences within the facilities,
24 provided that the rooms or residences are ventilated to the
25 outside.
26 (12) Commercial establishments used for the purpose of
27 carrying on or exercising any trade, profession, vocation or
28 charitable activity.
29 (13) Indoor arenas.
30 (14) Zoos.
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1 (15) Facilities where bingo, as defined in the act of
2 July 10, 1981 (P.L.214, No.67), known as the Bingo Law, is
3 played.
4 (16) Licensed facilities, as defined under 4 Pa.C.S. §
5 1103 (relating to definitions), or any other similar type of
6 facility authorized under State law.
7 (17) At least 75% of the total number of sleeping
8 quarters available for rent to guests within a single lodging
9 establishment such as a hotel or motel.
10 (b) Signage.--"Smoking" or "No Smoking" signs or the
11 international "No Smoking" symbol, which consists of a pictorial
12 representation of a burning cigarette in a circle with a bar
13 across it, shall be prominently posted and properly maintained
14 where smoking is regulated by this section, by the owner,
15 operator, manager or other person having control of the area.
16 (c) Exceptions.--The provisions of this section shall not
17 apply to any of the following:
18 (1) Private homes, private residences and private
19 automobiles unless the private home, private residence or
20 private vehicle is being used at the time for the provision
21 of child-care services or services related to the care of
22 children and youth in State or county custody, pursuant to
23 section 4(a)(7), (8) and (9).
24 (2) Retail tobacco businesses.
25 (3) Cigar bars.
26 (4) Designated sleeping quarters within a lodging
27 establishment available for rent to guests accounting for no
28 more than 25% of the total number of lodging units within a
29 single lodging establishment such as a hotel or motel.
30 (5) Workplaces of any manufacturer, importer or
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1 wholesaler of tobacco products, of any tobacco leaf dealer or
2 processor and all tobacco storage facilities.
3 (d) Relationship to other laws.--Smoking may not be
4 permitted where prohibited by any other law, rule or regulation
5 of any Commonwealth agency or any political subdivision. Nothing
6 in this section shall be construed to restrict the power of any
7 political subdivision to adopt and enforce additional local
8 laws, ordinances or regulations that are more restrictive than
9 this section and comply with the standards set forth under this
10 section.
11 (e) Prohibited acts.--The following shall be unlawful:
12 (1) For any employer or other person that owns, manages,
13 operates or otherwise controls the use of an area in which
14 smoking is prohibited or restricted under this section to
15 fail to comply with the provisions of this section. It shall
16 be an affirmative defense that during the relevant time
17 period actual control of the area was not exercised by the
18 employer or other person, but rather by a lessee or a
19 sublessee. It shall also be an affirmative defense that the
20 employer or other person has made a good faith effort to
21 ensure compliance with the provisions of this section. To
22 establish an affirmative defense, the employer or other
23 person who controls the area shall submit an affidavit and
24 may submit any other relevant proof indicating that the
25 person did not exercise actual control of the area during the
26 relevant time period, or that he made a good faith effort to
27 ensure compliance with the law. The affidavit and other proof
28 shall be sent by certified mail to the appropriate
29 enforcement officer within 30 days of receipt by the person
30 of a notice of violation.
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1 (2) For an individual to smoke in any area where smoking
2 is prohibited or restricted under this section.
3 (f) Penalty for unlawful conduct.--
4 (1) If the enforcement officer determines that a
5 violation of subsection (e) has occurred, the enforcement
6 officer may impose a civil penalty of $250 for the first
7 offense, $500 for the second offense and $1,000 for each
8 subsequent offense. The money shall go to the county board of
9 health or in counties that do not have a board of health, the
10 department, to be used to enforce this act. In addition, a
11 court of competent jurisdiction may order immediate
12 compliance with the provisions of this section.
13 (2) The enforcement officer may bring an action to
14 recover the civil penalty provided under paragraph (1) in any
15 court of competent jurisdiction. A civil penalty recovered
16 under the provisions of this section shall be recovered by
17 and in the name of the county board of health or the county
18 for whom the enforcement officer has been designated.
19 (g) Enforcement officer.--If a county does not have a board
20 of health, the governing body of the county shall, by resolution
21 adopted within 30 days following the effective date of this
22 section, designate an officer for the purpose of enforcing this
23 section. The designation shall be filed with the department
24 within 30 days after adoption and shall be effective 30 days
25 after it is filed with the department. The enforcement officer
26 shall have sole jurisdiction to enforce the provisions of this
27 section on a countywide basis under the guidelines developed and
28 published by the department. Any person who desires to register
29 a complaint under this section may do so with the appropriate
30 enforcement officer.
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1 Section 5. Retaliation prohibited.
2 No person or employer shall discharge, refuse to hire or in
3 any manner retaliate against any employee or applicant for
4 employment because the employer or applicant exercises any right
5 to a smoke-free environment required by this act.
6 Section 6. Rules and regulations.
7 The department shall promulgate and adopt rules and
8 regulations as are necessary and reasonable to implement the
9 provisions of this act including the enforcement of this act in
10 the event individual counties fail to enforce this act. The
11 department shall also engage in a continuing program to explain
12 and clarify the purposes and requirements of this act to persons
13 affected by it and to guide owners, operators and managers in
14 their compliance with this act. The programs may include
15 publication of a brochure for affected businesses and
16 individuals explaining the provisions of this act.
17 Section 7. Construction.
18 In any dispute arising under the provisions of this act, the
19 authority adjudicating the dispute shall construe the provisions
20 of this act in favor of the health concerns of persons who do
21 not engage in smoking and whose concerns shall represent the
22 public interest.
23 Section 8. Repeal.
24 Section 10.1 of the act of April 27, 1927 (P.L.465, No.299),
25 referred to as the Fire and Panic Act, is repealed in order to
26 effectuate the provisions of this act.
27 Section 9. Effective date.
28 This act shall take effect in 90 days.
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