HOUSE AMENDED
        PRIOR PRINTER'S NOS. 25, 1227, 1286           PRINTER'S NO. 1326

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 246 Session of 2007


        INTRODUCED BY GREENLEAF, ERICKSON, O'PAKE, CORMAN, WASHINGTON,
           C. WILLIAMS, LOGAN, ORIE, STACK, FERLO AND DINNIMAN,
           JANUARY 29, 2007

        AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
           JULY 15, 2007

                                     AN ACT

     1  Prohibiting smoking in certain public places and workplaces;      <--
     2     imposing duties upon the Department of Health; imposing
     3     penalties; preempting local regulations; and repealing a
     4     related provision of the Fire and Panic Act.
     5  ESTABLISHING THE SMOKE FREE PENNSYLVANIA ACT; PROHIBITING         <--
     6     SMOKING IN ENCLOSED AND SUBSTANTIALLY ENCLOSED AREAS;
     7     IMPOSING DUTIES UPON THE DEPARTMENT OF HEALTH; IMPOSING
     8     PENALTIES; AND MAKING A RELATED REPEAL.

     9     The General Assembly of the Commonwealth of Pennsylvania
    10  hereby enacts as follows:
    11  Section 1.  Short title.                                          <--
    12     This act shall be known and may be cited as the Clean Indoor
    13  Air Act.
    14  Section 2.  Legislative findings and purpose.
    15     (a)  Findings.--The General Assembly finds as follows:
    16         (1)  The use of tobacco products is dangerous not only to
    17     the person smoking, but also to nonsmokers who must breathe
    18     the contaminated air.
    19         (2)  The Environmental Protection Agency has classified

     1     second-hand tobacco smoke as a Class A carcinogen, a
     2     classification reserved for the most lethal environmental
     3     hazards.
     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)  Tobacco smoke is also responsible for up to
    11     1,000,000 attacks of asthma, 8,000 to 26,000 new cases of
    12     asthma and significant reduction in lung function, and causes
    13     serious middle ear infections among children each year.
    14     (b)  Purpose.--By enactment of this legislation, the General
    15  Assembly intends to protect the public health, the comfort of
    16  all persons and the environment by prohibiting smoking in public
    17  places and workplaces.
    18  Section 3.  Definitions.
    19     The following words and phrases when used in this act shall
    20  have the meanings given to them in this section unless the
    21  context clearly indicates otherwise:
    22     "Cigar bar."  An establishment which operates pursuant to an
    23  eating place or restaurant liquor license under the act of April
    24  12, 1951 (P.L.90, No.21), known as the Liquor Code, that is
    25  physically connected and directly adjacent to a tobacco shop.
    26     "Department."  The Department of Health of the Commonwealth.
    27     "Drinking establishment."  An establishment which operates
    28  pursuant to an eating place, restaurant license or retail
    29  dispenser license under the act of April 12, 1951 (P.L.90,
    30  No.21), known as the Liquor Code, has total annual sales of food
    20070S0246B1326                  - 2 -     

     1  sold for on-premises consumption of less than or equal to 20% of
     2  the combined gross sales of the establishment.
     3     "Gaming floor."  Any portion of a licensed gaming facility
     4  where slot machines have been installed for use or play as
     5  approved by the Pennsylvania Gaming Control Board. The area
     6  shall not include nongaming floor associated areas adjacent to
     7  the gaming floor, including hallways, reception areas, retail
     8  space, bars, nightclubs, restaurants, hotels, entertainment
     9  venues or office spaces.
    10     "Private club."  An organization which is any of the
    11  following:
    12         (1)  A reputable group of individuals associated together
    13     as a not-for-profit organization for legitimate purposes of
    14     mutual benefit, entertainment, fellowship or lawful
    15     convenience that:
    16             (i)  regularly and exclusively occupies, as owner or
    17         lessee, a clubhouse or quarters for the use of its
    18         members;
    19             (ii)  holds regular meetings, conducts its business
    20         through officers regularly elected, admits members by
    21         written application, investigation and ballot and charges
    22         and collects dues from elected members; and
    23             (iii)  has been in continuous existence for a period
    24         of ten years.
    25         (2)  A volunteer ambulance service.
    26         (3)  A volunteer fire company.
    27         (4)  A volunteer rescue company.
    28     "Public meeting."  A meeting open to the public including any
    29  meeting open to the public pursuant to 65 Pa.C.S. Ch. 7
    30  (relating to open meetings).
    20070S0246B1326                  - 3 -     

     1     "Public place."  An enclosed area to which the public is
     2  invited or in which the public is permitted, including any place
     3  listed in section 5.
     4     "Restaurant."  An eating establishment that offers food for
     5  sale to the public.
     6     "Service line."  A line at which one or more persons are
     7  waiting for or receiving service of any kind, whether or not
     8  such service involves the exchange of money.
     9     "Smoking."  The carrying by a person of a lighted cigar,
    10  cigarette, pipe or other lighted smoking device.
    11     "Sports arena."  A sports stadium, sports pavilion,
    12  exhibition hall, gymnasium, health spa, boxing arena, swimming
    13  pool, roller or ice rink, bowling alley or similar place where
    14  members of the general public assemble to engage in physical
    15  exercise, participate in athletic competition or witness sports
    16  events.
    17     "Tobacco shop."  A business establishment the main purpose of
    18  which is the sale of tobacco products including cigars, pipe
    19  tobacco and smoking accessories.
    20     "Volunteer ambulance service."  As defined in section 102 of
    21  the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
    22  Fire Company and Volunteer Ambulance Service Grant Act.
    23     "Volunteer fire company."  As defined in section 102 of the
    24  act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
    25  Fire Company and Volunteer Ambulance Service Grant Act.
    26     "Volunteer rescue company."  As defined in section 102 of the
    27  act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
    28  Fire Company and Volunteer Ambulance Service Grant Act.
    29     "Workplace."  An indoor area serving as a place of
    30  employment, occupation, business, trade, craft, profession or
    20070S0246B1326                  - 4 -     

     1  volunteer activity.
     2  Section 4.  Prohibition.
     3     No person shall smoke in a public place or in a workplace.
     4  Section 5.  Public place.
     5     The following enclosed areas are examples of public places:
     6         (1)  A place in which a public meeting is held.
     7         (2)  An educational facility.
     8         (3)  A school bus.
     9         (4)  A health facility.
    10         (5)  An auditorium.
    11         (6)  An arena.
    12         (7)  A theater.
    13         (8)  A museum.
    14         (9)  A restaurant.
    15         (10)  A bar or tavern.
    16         (11)  A concert hall.
    17         (12)  A commercial establishment.
    18         (13)  A retail store.
    19         (14)  A service line.
    20         (15)  A grocery store.
    21         (16)  A bingo hall.
    22         (17)  A waiting room or area.
    23         (18)  A hallway.
    24         (19)  A polling place.
    25         (20)  A restroom.
    26         (21)  A sports arena.
    27         (22)  A convention hall.
    28         (23)  An elevator.
    29         (24)  Public transit.
    30         (25)  A public food assistance program and facility.
    20070S0246B1326                  - 5 -     

     1         (26)  A shopping mall.
     2         (27)  An exhibition hall.
     3         (28)  A rotunda or lobby.
     4         (29)  A licensed gaming facility.
     5         (30)  At least 75% of the total number of sleeping
     6     quarters that are available for rent to guests within any
     7     single lodging establishment.
     8  Section 6.  Exception.
     9     (a)  General rule.--Subject to subsection (b), this act shall
    10  not apply to the following places:
    11         (1)  A private residence, except when used as a child
    12  day-care center or group or family day-care home subject to
    13  licensure, registration or certification by the Department of
    14  Public Welfare.
    15         (2)  Designated sleeping quarters within a lodging
    16     establishment that are available for rent to guests
    17     accounting for no more than 25% of the total number of
    18     lodging units within a single lodging establishment.
    19         (3)  A wholesale or retail tobacco shop whose sales of
    20     tobacco products comprise 85% or more of gross sales on an
    21     annual basis.
    22         (4)  All workplaces of any manufacturer, importer or
    23     wholesaler of tobacco products, of any tobacco leaf dealer or
    24     processor, and all tobacco storage facilities.
    25         (5)  The following residential facilities:
    26             (i)  A long-term care facility regulated under 42 CFR
    27         483.15 (relating to quality of life) or similar
    28         regulation. This exception shall not apply if 42 CFR
    29         483.15, or similar regulation, is repealed or expires.
    30             (ii)  Separate enclosed rooms or designated smoking
    20070S0246B1326                  - 6 -     

     1         rooms in a residential adult care facility, community
     2         mental health care facility, drug and alcohol facility or
     3         an adult care facility or other residential health care
     4         facility not covered under subparagraph (i).
     5             (iii)  Designated smoking rooms in a facility that
     6         provides day treatment programs.
     7         (6)  A cigar bar.
     8         (7)  Up to 25% of a gaming floor within a licensed gaming
     9     facility.
    10         (8)  A private club, except where the club is:
    11             (i)  open to the public through general advertisement
    12         for a club-sponsored event; or
    13             (ii)  is leased or used for a private event that is
    14         not club-sponsored.
    15         (9)  A drinking establishment.
    16         (10)  A place where a fundraiser is conducted by a
    17     nonprofit and charitable organization one time per year if:
    18             (i)  The place is separate from other public areas
    19         during the event.
    20             (ii)  Food and beverages are available to the
    21         attendees.
    22             (iii)  Individuals under 18 years of age are not
    23         permitted to attend.
    24             (iv)  Cigars are sold, auctioned or given as gifts
    25         and cigars are a feature of the event.
    26         (11)  An exhibition hall, conference room or similar
    27     facility used exclusively for an event to which the public is
    28     invited for the primary purpose of promoting and sampling
    29     tobacco products, and where the service of food and drink is
    30     incidental, if the sponsor or organizer gives notice in all
    20070S0246B1326                  - 7 -     

     1     advertisements and other promotional materials give notice
     2     that smoking will not be restricted. At least 75% of all
     3     products displayed or distributed at the event shall be
     4     tobacco or tobacco-related products. Notice that smoking will
     5     not be restricted must be prominently posted at the entrance
     6     to the facility. No retailer, manufacturer or distributor of
     7     tobacco may conduct more than six days of a promotional event
     8     under this paragraph in any calendar year.
     9     (b)  Notice.--To qualify for exemption under subsection (a),
    10  the owner or lessee of the place must conspicuously post at
    11  every public entrance to the place a sign stating that smoking
    12  is permitted on the premises.
    13  Section 7.  Retaliation prohibited.
    14     No person or employer shall discharge, refuse to hire or in
    15  any manner retaliate against any employee or applicant for
    16  employment because the employee or applicant exercises any right
    17  to a smoke-free environment required by this act.
    18  Section 8.  Enforcement.
    19     The Department of Health, a local board or department of
    20  health or any affected party may institute an action in any
    21  court with jurisdiction to enjoin a violation of the provisions
    22  of this act.
    23  Section 9.  Penalty.
    24     Any person who smokes in a public place or in a workplace or
    25  violates any other provision of this act commits a summary
    26  offense and shall pay:
    27         (1)  A fine not exceeding $250 for a first violation.
    28         (2)  A fine not exceeding $500 for a second violation
    29     that occurs within one year.
    30         (3)  A fine not exceeding $1,000 for each additional
    20070S0246B1326                  - 8 -     

     1     violation that occurs within one year.
     2  Section 10.  Annual reports.
     3     The department shall file an annual report by December 1 of
     4  each year with the chairman and minority chairman of the Public
     5  Health and Welfare Committee of the Senate and the chairman and
     6  minority chairman of the Health and Human Services Committee of
     7  the House of Representatives. The report shall include the
     8  number of violations of this act by county, the number of
     9  enforcement actions initiated under this act within each county,
    10  a description of the enforcement activities of the department,
    11  including the number of personnel, enforcement strategies and
    12  other issues relating to the administration and implementation
    13  of this act.
    14  Section 11.  Rules and regulations.
    15     The Department of Health shall promulgate and adopt, within
    16  180 days of the effective date of this section, rules and
    17  regulations as are necessary and reasonable to implement the
    18  provisions of this act. The department shall also engage in a
    19  continuing program to explain and clarify the purposes and
    20  requirements of this act to persons affected by it and to guide
    21  owners, operators and managers in their compliance with it. The
    22  programs may include publication of a brochure for affected
    23  businesses and individuals explaining the provisions of this
    24  act.
    25  Section 12.  Construction.
    26     In any dispute arising under the provisions of this act, the
    27  authority adjudicating the dispute shall construe the provisions
    28  of this act in favor of the health concerns of persons who do
    29  not engage in smoking and whose concerns shall represent the
    30  public interest.
    20070S0246B1326                  - 9 -     

     1  Section 13.  Preemption of local ordinances.
     2     The provisions of this act shall supersede any ordinance or
     3  rule or regulation adopted by a political subdivision concerning
     4  smoking in an indoor public place or workplace. No political
     5  subdivision shall have the authority to adopt or enforce any
     6  rule or ordinance which is more restrictive than the standards
     7  set forth in this act.
     8  Section 14.  Repeal.
     9     Repeals are as follows:
    10         (1)  The General Assembly declares that the repeal under
    11     paragraph (2) is necessary to effectuate this act.
    12         (2)  Section 10.1 of the act of April 27, 1927 (P.L.465,
    13     No.299), referred to as the Fire and Panic Act, is repealed.
    14  Section 15.  Effective date.
    15     This act shall take effect as follows:
    16         (1)  Section 10 shall take effect immediately.
    17         (2)  The remainder of this act shall take effect in 180
    18     days.
    19  SECTION 1.  SHORT TITLE.                                          <--
    20     THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE SMOKE FREE
    21  PENNSYLVANIA ACT.
    22  SECTION 2.  LEGISLATIVE FINDINGS AND PURPOSE.
    23     (A)  FINDINGS.--THE GENERAL ASSEMBLY FINDS AS FOLLOWS:
    24         (1)  THE USE OF TOBACCO PRODUCTS IS DANGEROUS NOT ONLY TO
    25     THE PERSON SMOKING, BUT ALSO TO NONSMOKERS WHO MUST BREATH
    26     THE CONTAMINATED AIR.
    27         (2)  THE DEPARTMENT OF ENVIRONMENTAL PROTECTION HAS
    28     CLASSIFIED SECONDHAND TOBACCO SMOKE AS A CLASS A CARCINOGEN,
    29     A CLASSIFICATION RESERVED FOR THE MOST LETHAL ENVIRONMENTAL
    30     HAZARDS, SUCH AS ASBESTOS, BENZENE, FORMALDEHYDE AND RADON.
    20070S0246B1326                 - 10 -     

     1         (3)  APPROXIMATELY 53,000 NONSMOKERS IN THE UNITED STATES
     2     DIE ANNUALLY FROM LUNG AND HEART DISEASE DUE TO EXPOSURE TO
     3     PASSIVE SMOKE.
     4         (4)  THREE HUNDRED THOUSAND CHILDREN EXPOSED TO TOBACCO
     5     SMOKE HAVE INCREASED FREQUENCY OF LOWER RESPIRATORY
     6     INFECTIONS, SUCH AS PNEUMONIA AND BRONCHITIS.
     7         (5)  SECOND HAND SMOKE EXPOSURE HAS BEEN LINKED TO SUDDEN
     8     INFANT DEATH SYNDROME.
     9         (6)  TOBACCO SMOKE IS ALSO RESPONSIBLE FOR UP TO
    10     1,000,000 ATTACKS OF ASTHMA, 8,000 TO 26,000 NEW CASES OF
    11     ASTHMA AND SIGNIFICANT REDUCTION IN LUNG FUNCTION AND CAUSES
    12     SERIOUS MIDDLE EAR INFECTIONS AMONG CHILDREN EACH YEAR.
    13         (7)  IN A COMPREHENSIVE REPORT RELEASED BY THE OFFICE OF
    14     THE SURGEON GENERAL IN JUNE 2006, THERE IS NO RISK-FREE LEVEL
    15     OF EXPOSURE TO SECONDHAND SMOKE. NONSMOKERS EXPOSED TO
    16     SECONDHAND SMOKE FACE UP TO A 30% RISK OF DEVELOPING HEART
    17     DISEASE AND LUNG CANCER.
    18     (B)  PURPOSE.--THE GENERAL ASSEMBLY INTENDS TO PROTECT THE
    19  PUBLIC HEALTH, THE COMFORT OF ALL PERSONS AND THE ENVIRONMENT BY
    20  PROHIBITING SMOKING IN PUBLIC PLACES AND WORKPLACES.
    21  SECTION 3.  DEFINITIONS.
    22     THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL
    23  HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
    24  CONTEXT CLEARLY INDICATES OTHERWISE:
    25     "BAR."  ANY AREA, ENCLOSED OR SUBSTANTIALLY ENCLOSED, DEVOTED
    26  TO THE SALE AND SERVICE OF ALCOHOLIC BEVERAGES FOR ON-PREMISES
    27  CONSUMPTION AND WHERE THE SERVICE OF FOOD IS ONLY INCIDENTAL TO
    28  THE CONSUMPTION OF SUCH BEVERAGES.
    29     "CIGAR BAR."  ANY AREA, ENCLOSED OR SUBSTANTIALLY ENCLOSED,
    30  DEVOTED TO THE SALE AND SERVICE OF TOBACCO PRODUCTS AND
    20070S0246B1326                 - 11 -     

     1  ACCESSORIES AND THE RENTAL OF ONSITE HUMIDORS FOR ON-PREMISES
     2  CONSUMPTION WHERE THE SERVICE OF FOOD AND ALCOHOLIC BEVERAGES     <--
     3  GENERATED 25% OR LESS SALES OF TOBACCO AND TOBACCO-RELATED        <--
     4  PRODUCTS GENERATED 75% OR MORE OF ITS ANNUAL GROSS INCOME IN THE
     5  CALENDAR YEAR ENDING DECEMBER 31, 2005, AND, ON AN ONGOING
     6  BASIS, THE CALENDAR YEAR PRECEDING AN ESTABLISHMENT'S CLAIM OF
     7  BEING A CIGAR BAR.
     8     "DEPARTMENT."  THE DEPARTMENT OF HEALTH OF THE COMMONWEALTH.
     9     "ENCLOSED."  HAVING A CEILING OR ROOF, EXCEPT FOR DOORS,
    10  WINDOWS OR PASSAGEWAYS, WHOLLY ENCLOSED EITHER ON A PERMANENT OR
    11  TEMPORARY BASIS.
    12     "ENFORCEMENT OFFICER."  THE BOARD OF HEALTH OF A COUNTY OR IN
    13  A COUNTY THAT DOES NOT HAVE A BOARD OF HEALTH, THE DEPARTMENT.
    14     "GOVERNMENT HOUSING FACILITY."  GOVERNMENT-OWNED, MULTIPLE-
    15  UNIT RESIDENTIAL FACILITIES.
    16     "HEALTH CARE FACILITY."  ANY HEALTH CARE FACILITY PROVIDING
    17  CLINICALLY RELATED HEALTH SERVICES, INCLUDING, BUT NOT LIMITED
    18  TO, A GENERAL OR SPECIAL HOSPITAL, INCLUDING PSYCHIATRIC
    19  HOSPITALS, REHABILITATION HOSPITALS, AMBULATORY SURGICAL
    20  FACILITIES, LONG-TERM CARE NURSING FACILITIES, CANCER TREATMENT
    21  CENTERS USING RADIATION THERAPY OR SPECIAL HOSPITAL, INCLUDING
    22  PSYCHIATRIC HOSPITALS, REHABILITATION HOSPITALS, AMBULATORY
    23  SURGICAL FACILITIES, LONG-TERM CARE NURSING FACILITIES, CANCER
    24  TREATMENT CENTERS USING RADIATION THERAPY ON AN AMBULATORY BASIS
    25  AND INPATIENT DRUG AND ALCOHOL TREATMENT FACILITIES, BOTH PROFIT
    26  AND NONPROFIT AND INCLUDING THOSE OPERATED BY AN AGENCY OR STATE
    27  OR LOCAL GOVERNMENT. THE TERM SHALL ALSO INCLUDE A HOSPICE.
    28     "PRIVATE CLUB."  ANY REPUTABLE GROUP OF INDIVIDUALS            <--
    29  ASSOCIATED TOGETHER AS A NOT-FOR-PROFIT ORGANIZATION FOR
    30  LEGITIMATE PURPOSES OF MUTUAL BENEFIT, ENTERTAINMENT, FELLOWSHIP
    20070S0246B1326                 - 12 -     

     1  OR LAWFUL CONVENIENCE WHICH REGULARLY AND EXCLUSIVELY OCCUPIES,
     2  AS OWNER OR LESSEE, A CLUBHOUSE OR QUARTERS FOR THE USE OF ITS
     3  MEMBERS AND WHICH HOLDS REGULAR MEETINGS, CONDUCTS BUSINESS
     4  THROUGH OFFICERS REGULARLY ELECTED, ADMITS MEMBERS BY WRITTEN
     5  APPLICATION, INVESTIGATION AND BALLOT, AND CHARGES AND COLLECTS
     6  DUES FROM ELECTED MEMBERS. THE CLUB SHALL EITHER BE INCORPORATED
     7  OR, IF UNINCORPORATED, PROVIDE PROOF OF CONTINUOUS EXISTENCE FOR
     8  THE PAST TEN YEARS IN A MANNER DEEMED SUFFICIENT BY THE
     9  DEPARTMENT OF HEALTH.
    10     "RESTAURANT."  ANY AREA, ENCLOSED OR SUBSTANTIALLY ENCLOSED,
    11  DEVOTED TO THE SALE OR SERVICE OF FOOD.
    12     "RETAIL TOBACCO BUSINESS."  A SOLE PROPRIETORSHIP, LIMITED
    13  LIABILITY COMPANY, CORPORATION, PARTNERSHIP OR OTHER ENTERPRISE
    14  IN WHICH THE PRIMARY ACTIVITY IS THE RETAIL SALE OF TOBACCO
    15  PRODUCTS AND ACCESSORIES WHERE THE SALE OF GOODS GENERATED 25%    <--
    16  OR LESS TOBACCO AND TOBACCO-RELATED PRODUCTS GENERATED 75% OR     <--
    17  MORE OF ITS ANNUAL GROSS INCOME IN THE CALENDAR YEAR ENDING
    18  DECEMBER 31, 2005, AND, ON AN ONGOING BASIS, THE CALENDAR YEAR
    19  PRECEDING AN ESTABLISHMENT'S CLAIM OF BEING A RETAIL TOBACCO
    20  BUSINESS.
    21     "SCHOOL GROUNDS FACILITIES."  A BUILDING OR STRUCTURE LOCATED  <--
    22  WITHIN A PUBLIC OR PRIVATE PRESCHOOL, NURSERY SCHOOL, ELEMENTARY
    23  OR SECONDARY SCHOOL'S LEGALLY DEFINED PROPERTY BOUNDARIES AND
    24  ANY VEHICLES OPERATED DIRECTLY BY THE SCHOOL OR UNDER THEIR       <--
    25  CONTRACT USED TO TRANSPORT CHILDREN OR SCHOOL PERSONNEL.
    26     "SMOKING."  THE BURNING OF A LIGHTED CIGAR, CIGARETTE, PIPE
    27  OR ANY OTHER MATTER OR SUBSTANCE WHICH CONTAINS TOBACCO.
    28     "SUBSTANTIALLY ENCLOSED."  HAVING A CEILING OR ROOF, WITH AN
    29  OPENING IN THE WALLS CONSTITUTING LESS THAN HALF THE TOTAL AREA
    30  OF THE WALLS. THE AREA OF THE OPENING DOES NOT INCLUDE DOORS,
    20070S0246B1326                 - 13 -     

     1  WINDOWS OR OTHER FITTINGS OPENED OR SHUT.
     2     "WORKPLACE."  AN ENCLOSED OR SUBSTANTIALLY ENCLOSED AREA
     3  SERVING AS A PLACE OF EMPLOYMENT, OCCUPATION, BUSINESS, TRADE,
     4  CRAFT, PROFESSION OR VOLUNTEER ACTIVITY, INCLUDING EMPLOYER-
     5  OWNED VEHICLES WITH MORE THAN ONE OCCUPANT.
     6  SECTION 4.  SMOKING RESTRICTIONS.
     7     (A)  RESTRICTIONS.--SMOKING SHALL NOT BE PERMITTED AND NO
     8  INDIVIDUAL SHALL SMOKE IN ANY OF THE FOLLOWING AREAS IF THEY ARE
     9  ENCLOSED OR SUBSTANTIALLY ENCLOSED AREAS:
    10         (1)  WORKPLACES.
    11         (2)  BARS.
    12         (3)  RESTAURANTS.
    13         (4)  ENCLOSED OR SUBSTANTIALLY ENCLOSED AREAS OPEN TO THE
    14     PUBLIC.
    15         (5)  MEANS OF MASS TRANSPORTATION, INCLUDING SUBWAYS,
    16     BUSES, TRAINS, TAXICABS AND LIMOUSINES.
    17         (6)  TICKETING, BOARDING AND WAITING AREAS IN PUBLIC
    18     TRANSPORTATION TERMINALS, INCLUDING, BUT NOT LIMITED TO,
    19     UNDERGROUND SUBWAY STATIONS, TRAIN STATIONS AND BUS STATIONS.
    20         (7)  A PUBLIC OR PRIVATE FACILITY THAT HOUSES OR TREATS
    21     CHILDREN AND YOUTH IN STATE OR COUNTY CUSTODY, INCLUDING
    22     YOUTH DETENTION CENTERS, GROUP HOMES AND PRIVATE HOMES.
    23         (8)  A PUBLIC OR PRIVATE FACILITY, INCLUDING A PRIVATE
    24     HOME THAT PROVIDES CHILD-CARE AND/OR ADULT DAY-CARE SERVICES.
    25         (9)  SCHOOL FACILITIES.
    26         (10)  PUBLIC AND PRIVATE COLLEGES, UNIVERSITIES AND OTHER
    27     EDUCATIONAL AND VOCATIONAL INSTITUTIONS.
    28         (11)  HEALTH CARE OR GOVERNMENT HOUSING FACILITIES. THIS
    29     PARAGRAPH, HOWEVER, SHALL NOT PROHIBIT SMOKING BY PATIENTS OR
    30     RESIDENTS IN SEPARATE ENCLOSED ROOMS OF RESIDENTIAL HEALTH
    20070S0246B1326                 - 14 -     

     1     CARE FACILITIES, GOVERNMENT HOUSING FACILITIES, ADULT CARE
     2     FACILITIES, COMMUNITY MENTAL HEALTH RESIDENCES OR FACILITIES
     3     WHERE DAY TREATMENT PROGRAMS ARE PROVIDED, WHICH ARE
     4     DESIGNATED AS SMOKING ROOMS FOR PATIENTS OF THE FACILITIES OR
     5     PROGRAMS, OR IN PRIVATE RESIDENCES WITHIN THE FACILITIES,
     6     PROVIDED THAT THE ROOMS OR RESIDENCES ARE VENTILATED TO THE
     7     OUTSIDE.
     8         (12)  COMMERCIAL ESTABLISHMENTS USED FOR THE PURPOSE OF
     9     CARRYING ON OR EXERCISING ANY TRADE, PROFESSION, VOCATION OR
    10     CHARITABLE ACTIVITY.
    11         (13)  INDOOR ARENAS.
    12         (14)  ZOOS.
    13         (15)  FACILITIES WHERE BINGO, AS DEFINED IN THE ACT OF
    14     JULY 10, 1981 (P.L.214, NO.67), KNOWN AS THE BINGO LAW, IS
    15     PLAYED.
    16         (16)  LICENSED FACILITIES, AS DEFINED UNDER 4 PA.C.S. §
    17     1103 (RELATING TO DEFINITIONS), OR ANY OTHER SIMILAR TYPE OF
    18     FACILITY AUTHORIZED UNDER STATE LAW.
    19         (17)  AT LEAST 75% OF THE TOTAL NUMBER OF SLEEPING
    20     QUARTERS AVAILABLE FOR RENT TO GUESTS WITHIN A SINGLE LODGING
    21     ESTABLISHMENT SUCH AS A HOTEL OR MOTEL.
    22     (B)  SIGNAGE.--"SMOKING" OR "NO SMOKING" SIGNS OR THE
    23  INTERNATIONAL "NO SMOKING" SYMBOL, WHICH CONSISTS OF A PICTORIAL
    24  REPRESENTATION OF A BURNING CIGARETTE IN A CIRCLE WITH A BAR
    25  ACROSS IT, SHALL BE PROMINENTLY POSTED AND PROPERLY MAINTAINED
    26  WHERE SMOKING IS REGULATED BY THIS SECTION, BY THE OWNER,
    27  OPERATOR, MANAGER OR OTHER PERSON HAVING CONTROL OF THE AREA.
    28     (C)  EXCEPTIONS.--THE PROVISIONS OF THIS SECTION SHALL NOT
    29  APPLY TO ANY OF THE FOLLOWING:
    30         (1)  PRIVATE HOMES, PRIVATE RESIDENCES AND PRIVATE
    20070S0246B1326                 - 15 -     

     1     AUTOMOBILES UNLESS THE PRIVATE HOME, PRIVATE RESIDENCE OR
     2     PRIVATE VEHICLE IS BEING USED AT THE TIME FOR THE PROVISION
     3     OF CHILD-CARE SERVICES OR SERVICES RELATED TO THE CARE OF
     4     CHILDREN AND YOUTH IN STATE OR COUNTY CUSTODY, PURSUANT TO
     5     SUBSECTION (A)(7), (8) AND (9).
     6         (2)  RETAIL TOBACCO BUSINESSES.
     7         (3)  CIGAR BARS.
     8         (4)  DESIGNATED SLEEPING QUARTERS WITHIN A LODGING
     9     ESTABLISHMENT AVAILABLE FOR RENT TO GUESTS ACCOUNTING FOR NO
    10     MORE THAN 25% OF THE TOTAL NUMBER OF LODGING UNITS WITHIN A
    11     SINGLE LODGING ESTABLISHMENT SUCH AS A HOTEL OR MOTEL.
    12         (5)  WORKPLACES OF ANY MANUFACTURER, IMPORTER OR
    13     WHOLESALER OF TOBACCO PRODUCTS, OF ANY TOBACCO LEAF DEALER OR
    14     PROCESSOR AND ALL TOBACCO STORAGE FACILITIES.
    15         (6)  A PRIVATE CLUB.                                       <--
    16         (7)  AN EXHIBITION HALL, CONFERENCE ROOM OR SIMILAR
    17     FACILITY USED EXCLUSIVELY FOR AN EVENT TO WHICH THE PUBLIC IS
    18     INVITED FOR THE PRIMARY PURPOSE OF PROMOTING AND SAMPLING
    19     TOBACCO PRODUCTS, AND WHERE THE SERVICE OF FOOD AND DRINK IS
    20     INCIDENTAL, IF THE SPONSOR OR ORGANIZER GIVES NOTICE IN ALL
    21     ADVERTISEMENTS AND OTHER PROMOTIONAL MATERIALS GIVE NOTICE
    22     THAT SMOKING WILL NOT BE RESTRICTED. AT LEAST 75% OF ALL
    23     PRODUCTS DISPLAYED OR DISTRIBUTED AT THE EVENT SHALL BE
    24     TOBACCO OR TOBACCO-RELATED PRODUCTS. NOTICE THAT SMOKING WILL
    25     NOT BE RESTRICTED MUST BE PROMINENTLY POSTED AT THE ENTRANCE
    26     TO THE FACILITY. NO RETAILER, MANUFACTURER OR DISTRIBUTOR OF
    27     TOBACCO MAY CONDUCT MORE THAN SIX DAYS OF A PROMOTIONAL EVENT
    28     UNDER THIS PARAGRAPH IN ANY CALENDAR YEAR.
    29     (D)  RELATIONSHIP TO OTHER LAWS.--SMOKING MAY NOT BE
    30  PERMITTED WHERE PROHIBITED BY ANY OTHER LAW, RULE OR REGULATION
    20070S0246B1326                 - 16 -     

     1  OF ANY COMMONWEALTH AGENCY OR ANY POLITICAL SUBDIVISION. NOTHING
     2  IN THIS SECTION SHALL BE CONSTRUED TO RESTRICT THE POWER OF ANY
     3  POLITICAL SUBDIVISION TO ADOPT AND ENFORCE ADDITIONAL LOCAL
     4  LAWS, ORDINANCES OR REGULATIONS THAT ARE MORE RESTRICTIVE THAN
     5  THIS SECTION AND COMPLY WITH THE STANDARDS SET FORTH UNDER THIS
     6  SECTION.
     7     (E)  PROHIBITED ACTS.--THE FOLLOWING SHALL BE UNLAWFUL:
     8         (1)  FOR ANY EMPLOYER OR OTHER PERSON THAT OWNS, MANAGES,
     9     OPERATES OR OTHERWISE CONTROLS THE USE OF AN AREA IN WHICH
    10     SMOKING IS PROHIBITED OR RESTRICTED UNDER THIS SECTION TO
    11     FAIL TO COMPLY WITH THE PROVISIONS OF THIS SECTION. IT SHALL
    12     BE AN AFFIRMATIVE DEFENSE THAT DURING THE RELEVANT TIME
    13     PERIOD ACTUAL CONTROL OF THE AREA WAS NOT EXERCISED BY THE
    14     EMPLOYER OR OTHER PERSON, BUT RATHER BY A LESSEE OR A
    15     SUBLESSEE. IT SHALL ALSO BE AN AFFIRMATIVE DEFENSE THAT THE
    16     EMPLOYER OR OTHER PERSON HAS MADE A GOOD FAITH EFFORT TO
    17     ENSURE COMPLIANCE WITH THE PROVISIONS OF THIS SECTION. TO
    18     ESTABLISH AN AFFIRMATIVE DEFENSE, THE EMPLOYER OR OTHER
    19     PERSON WHO CONTROLS THE AREA SHALL SUBMIT AN AFFIDAVIT AND
    20     MAY SUBMIT ANY OTHER RELEVANT PROOF INDICATING THAT THE
    21     PERSON DID NOT EXERCISE ACTUAL CONTROL OF THE AREA DURING THE
    22     RELEVANT TIME PERIOD, OR THAT HE MADE A GOOD FAITH EFFORT TO
    23     ENSURE COMPLIANCE WITH THE LAW. THE AFFIDAVIT AND OTHER PROOF
    24     SHALL BE SENT BY CERTIFIED MAIL TO THE APPROPRIATE
    25     ENFORCEMENT OFFICER WITHIN 30 DAYS OF RECEIPT BY THE PERSON
    26     OF A NOTICE OF VIOLATION.
    27         (2)  FOR AN INDIVIDUAL TO SMOKE IN ANY AREA WHERE SMOKING
    28     IS PROHIBITED OR RESTRICTED UNDER THIS SECTION.
    29     (F)  PENALTY FOR UNLAWFUL CONDUCT.--
    30         (1)  IF THE ENFORCEMENT OFFICER DETERMINES THAT A
    20070S0246B1326                 - 17 -     

     1     VIOLATION OF SUBSECTION (E) HAS OCCURRED, THE ENFORCEMENT
     2     OFFICER MAY IMPOSE A CIVIL PENALTY OF $250 FOR THE FIRST
     3     OFFENSE, $500 FOR THE SECOND OFFENSE AND $1,000 FOR EACH
     4     SUBSEQUENT OFFENSE. THE MONEY SHALL GO TO THE COUNTY BOARD OF
     5     HEALTH OR IN COUNTIES THAT DO NOT HAVE A BOARD OF HEALTH, THE
     6     DEPARTMENT, TO BE USED TO ENFORCE THIS ACT. IN ADDITION, A
     7     COURT OF COMPETENT JURISDICTION MAY ORDER IMMEDIATE
     8     COMPLIANCE WITH THE PROVISIONS OF THIS SECTION.
     9         (2)  THE ENFORCEMENT OFFICER MAY BRING AN ACTION TO
    10     RECOVER THE CIVIL PENALTY PROVIDED UNDER PARAGRAPH (1) IN ANY
    11     COURT OF COMPETENT JURISDICTION. A CIVIL PENALTY RECOVERED
    12     UNDER THE PROVISIONS OF THIS SECTION SHALL BE RECOVERED BY
    13     AND IN THE NAME OF THE COUNTY BOARD OF HEALTH OR THE COUNTY
    14     FOR WHOM THE ENFORCEMENT OFFICER HAS BEEN DESIGNATED.
    15     (G)  ENFORCEMENT OFFICER.--IF A COUNTY DOES NOT HAVE A BOARD
    16  OF HEALTH, THE GOVERNING BODY OF THE COUNTY SHALL, BY RESOLUTION
    17  ADOPTED WITHIN 30 DAYS FOLLOWING THE EFFECTIVE DATE OF THIS
    18  SECTION, DESIGNATE AN OFFICER FOR THE PURPOSE OF ENFORCING THIS
    19  SECTION. THE DESIGNATION SHALL BE FILED WITH THE DEPARTMENT
    20  WITHIN 30 DAYS AFTER ADOPTION AND SHALL BE EFFECTIVE 30 DAYS
    21  AFTER IT IS FILED WITH THE DEPARTMENT. THE ENFORCEMENT OFFICER
    22  SHALL HAVE SOLE JURISDICTION TO ENFORCE THE PROVISIONS OF THIS
    23  SECTION ON A COUNTYWIDE BASIS UNDER THE GUIDELINES DEVELOPED AND
    24  PUBLISHED BY THE DEPARTMENT. ANY PERSON WHO DESIRES TO REGISTER
    25  A COMPLAINT UNDER THIS SECTION MAY DO SO WITH THE APPROPRIATE
    26  ENFORCEMENT OFFICER.
    27  SECTION 5.  RETALIATION PROHIBITED.
    28     NO PERSON OR EMPLOYER SHALL DISCHARGE, REFUSE TO HIRE OR IN
    29  ANY MANNER RETALIATE AGAINST ANY EMPLOYEE OR APPLICANT FOR
    30  EMPLOYMENT BECAUSE THE EMPLOYER OR APPLICANT EXERCISES ANY RIGHT
    20070S0246B1326                 - 18 -     

     1  TO A SMOKE-FREE ENVIRONMENT REQUIRED BY THIS ACT.
     2  SECTION 6.  RULES AND REGULATIONS.
     3     THE DEPARTMENT SHALL PROMULGATE AND ADOPT RULES AND
     4  REGULATIONS AS ARE NECESSARY AND REASONABLE TO IMPLEMENT THE
     5  PROVISIONS OF THIS ACT INCLUDING THE ENFORCEMENT OF THIS ACT IN
     6  THE EVENT INDIVIDUAL COUNTIES FAIL TO ENFORCE THIS ACT. THE
     7  DEPARTMENT SHALL ALSO ENGAGE IN A CONTINUING PROGRAM TO EXPLAIN
     8  AND CLARIFY THE PURPOSES AND REQUIREMENTS OF THIS ACT TO PERSONS
     9  AFFECTED BY IT AND TO GUIDE OWNERS, OPERATORS AND MANAGERS IN
    10  THEIR COMPLIANCE WITH THIS ACT. THE PROGRAMS MAY INCLUDE
    11  PUBLICATION OF A BROCHURE FOR AFFECTED BUSINESSES AND
    12  INDIVIDUALS EXPLAINING THE PROVISIONS OF THIS ACT.
    13  SECTION 7.  CONSTRUCTION.
    14     IN ANY DISPUTE ARISING UNDER THE PROVISIONS OF THIS ACT, THE
    15  AUTHORITY ADJUDICATING THE DISPUTE SHALL CONSTRUE THE PROVISIONS
    16  OF THIS ACT IN FAVOR OF THE HEALTH CONCERNS OF PERSONS WHO DO
    17  NOT ENGAGE IN SMOKING AND WHOSE CONCERNS SHALL REPRESENT THE
    18  PUBLIC INTEREST.
    19  SECTION 8.  REPEAL.
    20     SECTION 10.1 OF THE ACT OF APRIL 27, 1927 (P.L.465, NO.299),
    21  REFERRED TO AS THE FIRE AND PANIC ACT, IS REPEALED IN ORDER TO
    22  EFFECTUATE THE PROVISIONS OF THIS ACT.
    23  SECTION 9.  EFFECTIVE DATE.
    24     THIS ACT SHALL TAKE EFFECT IN 90 DAYS.




    A17L35DMS/20070S0246B1326       - 19 -
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