PRINTER'S NO.  1477

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

1245

Session of

2009

  

  

INTRODUCED BY SCAVELLO, CHRISTIANA, BOYD, D. COSTA, EVERETT, FRANKEL, FREEMAN, GIBBONS, GINGRICH, JOSEPHS, MELIO, MUNDY, MURT, SWANGER AND VULAKOVICH, APRIL 8, 2009

  

  

REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, APRIL 8, 2009  

  

  

  

AN ACT

  

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Amending the act of June 13, 2008 (P.L.182, No.27), entitled "An

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act regulating smoking in this Commonwealth; imposing powers

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and duties on the Department of Health and local boards of

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health; providing penalties; preempting local action; and

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making a related repeal," further prohibiting smoking in

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public places; providing for local ordinances; and making a

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related repeal of the Fire and Panic Act.

8

The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  The title of the act of June 13, 2008 (P.L.182,

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No.27), known as the Clean Indoor Air Act, is amended to read:

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AN ACT

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Regulating smoking in this Commonwealth; imposing powers and

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duties on the Department of Health and local boards of

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health; providing penalties; [preempting] repealing

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provisions relating to preemption of local action; providing

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for effect on local ordinances; and making [a related repeal]

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related repeals.

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Section 2.  Sections 2, 3(b) and (c), 4, 5(d), 6(c) and 10 of

 


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the act are amended to read:

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Section 2.  Definitions.

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The following words and phrases when used in this act shall

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have the meanings given to them in this section unless the

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context clearly indicates otherwise:

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"Cigar bar."  Any of the following:

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(1)  An establishment which, on [the effective date of

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this section] September 11, 2008, operates pursuant to an

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eating place retail dispenser's or restaurant liquor license

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under the act of April 12, 1951 (P.L.90, No.21), known as the

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Liquor Code, and is physically connected by a door,

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passageway or other opening and directly adjacent to a

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tobacco shop.

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(2)  An establishment which, at any time, operates

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pursuant to an eating place retail dispenser's license, malt

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or brewed beverage distributor's license or restaurant liquor

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license under the Liquor Code, and has total annual sales of

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tobacco products, including tobacco, accessories or cigar

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storage lockers or humidors of at least 15% of the combined

20

gross sales of the establishment.

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"Department."  The Department of Health of the Commonwealth.

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"Drinking establishment."  [Any of the following:

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(1)]  An establishment which[:

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(i)]  operates pursuant to an eating place retail

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dispenser's license, restaurant liquor license or retail

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dispenser's license under the act of April 12, 1951

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(P.L.90, No.21), known as the Liquor Code[;]. The term

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also includes a nightclub.

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[(ii)  has total annual sales of food sold for on-

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premises consumption of less than or equal to 20% of the

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combined gross sales of the establishment; and

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(iii)  does not permit individuals under 18 years of

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age.

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(2)  An enclosed area within an establishment which, on

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the effective date of this section:

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(i)  operates pursuant to an eating place retail

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dispenser's license, restaurant liquor license or retail

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dispenser's license under the Liquor Code;

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(ii)  is a physically connected or directly adjacent

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enclosed area which is separate from the eating area, has

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a separate air system and has a separate outside

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entrance;

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(iii)  has total annual sales of food sold for on-

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premises consumption of less than or equal to 20% of the

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combined gross sales within the permitted smoking area of

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the establishment; and

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(iv)  does not permit individuals under 18 years of

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age.

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The term does not include a nightclub.]

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"Full-service truck stop."  An establishment catering to

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long-haul truck drivers that provides shower facilities for a

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fee.

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"Gaming floor."  Any portion of a licensed facility where

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slot machines have been installed for use or play as approved by

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the Pennsylvania Gaming Control Board. [The term does not

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include an area adjacent to the gaming floor, including any

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hallway, reception area, retail space, bar, nightclub,

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restaurant, hotel, entertainment venue or office space.]

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"Licensed facility."  As defined in 4 Pa.C.S. § 1103 

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(relating to definitions).

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"Night club."  A public hall or hall for which admission is

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generally charged and which is primarily or predominantly

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devoted to dancing or to shows or cabarets as opposed to a

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facility that is primarily a bar, tavern or dining facility.

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"Private club."  An organization [which is any of the

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following:] including, but not limited to:

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(1)  A reputable group of individuals associated together

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as an organization for legitimate purposes of mutual benefit,

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entertainment, fellowship or lawful convenience. [which does

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all of the following:

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(i)  Regularly and exclusively occupies, as owner or

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lessee, a clubhouse or quarter for the use of its

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members.

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(ii)  Holds regular meetings; conducts its business

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through officers regularly elected; admits members by

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written application, investigation and ballot; and

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charges and collects dues from elected members.

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(iii)  Has been in continuous existence for a period

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of ten years as such an organization.]

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(2)  A volunteer ambulance service.

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(3)  A volunteer fire company.

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(4)  A volunteer rescue company.

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"Public meeting."  A meeting open to the public. The term

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includes a meeting under 65 Pa.C.S. Ch. 7 (relating to open

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meetings).

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"Public place."  An enclosed area which serves as a

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workplace, commercial establishment or an area where the public

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is invited or permitted. The term includes:

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(1)  A facility which provides education, food or health

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care-related services.

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(2)  A vehicle used for mass transportation. This

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paragraph includes a train, subway, bus, including a

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chartered bus, plane, taxicab and limousine.

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(3)  A train station, subway station or bus station.

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(4)  A public facility. This paragraph includes a

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facility to which the public is invited or in which the

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public is permitted and a private home which provides child-

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care or adult day-care services.

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(5)  A sports or recreational facility, theater or

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performance establishment.

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(6)  A full service truck stop.

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(7)  A residential facility.

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(8)  A private club.

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(9)  A drinking establishment.

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(10)  A gaming floor.

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(11)  Any outdoor deck, patio or similar outdoor service

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area which is part of a food or drinking establishment.

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"Residential facilities."  The term includes any of the

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following:

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(1)  A long-term care facility regulated under 42 CFR

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483.15 (relating to quality of life).

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(2)  Residential adult care facility.

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(3)  Community mental health care facility.

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(4)  Drug or alcohol facility.

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(5)  Day treatment programs.

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"Smoking."  The carrying by a person of a lighted cigar,

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cigarette, pipe or other lighted smoking device.

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"Tobacco shop."  A business establishment whose sales of

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tobacco and tobacco-related products, including cigars, pipe

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tobacco and smoking accessories, comprise at least 50% of the

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gross annual sales. This term does not include a stand-alone

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kiosk or establishment comprised solely of cigarette vending

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machines.

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"Volunteer ambulance service."  As defined in section 102 of

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the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer

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Fire Company and Volunteer Ambulance Service Grant Act.

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"Volunteer fire company."  As defined in section 102 of the

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act of July 31, 2003 (P.L.73, No.17), known as the Volunteer

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Fire Company and Volunteer Ambulance Service Grant Act.

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"Volunteer rescue company."  As defined in section 102 of the

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act of July 31, 2003 (P.L.73, No.17), known as the Volunteer

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Fire Company and Volunteer Ambulance Service Grant Act.

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"Workplace."  An indoor area serving as a place of

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employment, occupation, business, trade, craft, professional or

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volunteer activity.

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Section 3.  Prohibition.

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* * *

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(b)  Exceptions.--Subsection (a) shall not apply to any of

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the following:

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(1)  A private home, private residence or private vehicle

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unless the private home, private residence or private vehicle

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is being used at the time for the provision of child-care

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services, adult day-care services or services related to the

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care of children and youth in State or county custody.

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(2)  Designated quarters[:

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(i)]  within a lodging establishment which are

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available for rent to guests accounting for no more than

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25% of the total number of lodging units within a single

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lodging establishment.[; or

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(ii)  within a full-service truck stop.]

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(3)  A tobacco shop.

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(4)  A workplace of a manufacturer, importer or

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wholesaler of tobacco products; a manufacturer of tobacco-

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related products, including lighters; a tobacco leaf dealer

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or processor; or a tobacco storage facility.

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[(5)  Any of the following residential facilities:

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(i)  A long-term care facility regulated under 42 CFR

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483.15 (relating to quality of life). This subparagraph

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shall not apply if 42 CFR 483.15 is abrogated or expires.

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(ii)  A separate enclosed room or designated smoking

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room in a residential adult care facility, community

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mental health care facility, drug and alcohol facility or

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other residential health care facility not covered under

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subparagraph (i).

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(iii)  A designated smoking room in a facility which

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provides day treatment programs.

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(6)  Subject to subsection (c)(2), a private club, except

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where the club is:

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(i)  open to the public through general advertisement

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for a club-sponsored event; or

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(ii)  leased or used for a private event which is not

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club sponsored.

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(7)  A place where a fundraiser is conducted by a

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nonprofit and charitable organization one time per year if

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all of the following apply:

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(i)  The place is separate from other public areas

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during the event.

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(ii)  Food and beverages are available to attendees.

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(iii)  Individuals under 18 years of age are not

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permitted to attend.

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(iv)  Cigars are sold, auctioned or given as gifts,

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and cigars are a feature of the event.

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(8)  An exhibition hall, conference room, catering hall

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or similar facility used exclusively for an event to which

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the public is invited for the primary purpose of promoting or

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sampling tobacco products, subject to the following:

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(i)  All of the following must be met:

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(A)  Service of food and drink is incidental.

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(B)  The sponsor or organizer gives notice in all

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advertisements and other promotional materials that

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smoking will not be restricted.

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(C)  At least 75% of all products displayed or

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distributed at the event are tobacco or tobacco-

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related products.

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(D)  Notice that smoking will not be restricted

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is prominently posted at the entrance to the

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facility.

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(ii)  A single retailer, manufacturer or distributor

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of tobacco may not conduct more than six days of a

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promotional event under this paragraph in any calendar

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year.]

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(9)  A cigar bar.

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[(10)  A drinking establishment.

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(11)  Unless otherwise increased under this paragraph,

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25% of the gaming floor at a licensed facility. No earlier

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than 90 days following the effective date of this section or

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the date of commencement of slot machine operations at a

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licensed facility, whichever is later, a licensed facility

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shall request a report from the Department of Revenue that

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analyzes the gross terminal revenue per slot machine unit in

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operation at the licensed facility within the 90-day period

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preceding the request. If the report shows that the average

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gross terminal revenue per slot machine unit in the

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designated smoking area equals or exceeds the average gross

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terminal revenue per slot machine unit in the designated

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nonsmoking area, the licensed facility may increase the

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designated smoking area of the gaming floor in proportion to

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the percentage difference in revenue. A licensed facility may

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request this report from the Department of Revenue on a

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quarterly basis and may increase the designated smoking area

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of the gaming floor accordingly. At no time may the

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designated smoking area exceed 50% of the gaming floor. The

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board shall have jurisdiction to verify the gross terminal

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revenues included in the report to ensure compliance with the

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requirements under this paragraph. Movement of the licensed

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facility from a temporary facility to a permanent facility

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shall not require the licensed facility to revert to the

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minimum percentage set forth under this paragraph.]

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(12)  A designated outdoor smoking area within the

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confines of a sports or recreational facility, theater or

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performance establishment.

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(c)  Conditions and qualifications for exceptions.--

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[(1)]  In order to be excepted under subsection (b), a

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[drinking establishment,] cigar bar or tobacco shop must

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submit a letter, accompanied by verifiable supporting

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documentation,to the department claiming an exception under

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subsection (b). Exception shall be based upon the

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establishment's books, accounts, revenues or receipts,

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including those reported to the Department of Revenue for

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sales tax purposes, from the previous year or stated

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projected annual revenues, which shall be verified within six

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months.

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[(2)  In order to qualify for the exception under

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subsection (b)(6), a private club must take and record a vote

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of its officers under the bylaws to address smoking in the

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private club's facilities.]

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Section 4.  Signage.

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"Smoking Permitted" or "No Smoking" signs or the

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international "No Smoking" symbol, which consists of a pictorial

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representation of a burning cigarette in a circle with a bar

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across it, shall be prominently posted and properly maintained

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where smoking is regulated by this act by the owner, operator,

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manager or other person having control of the area. A "Smoking

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Permitted" sign shall be prominently posted and maintained at

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every entrance to a public place where smoking is permitted

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under this act.

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Section 5.  Enforcement.

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* * *

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(d)  Access to records.--A [drinking establishment,] cigar

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bar and tobacco shop shall make available all books, accounts,

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revenues, receipts and other information to the department, the

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Department of Revenue, the State licensing agency or a county

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board of health as necessary to enforce this act. All

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information submitted to the Department of Health, a county

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board or other Commonwealth agency with enforcement duties under

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this act[, including information to verify the on-site food

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consumption of a drinking establishment,] shall be confidential

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and shall not be subject to the [act of June 21, 1957 (P.L.390,

29

No.212), referred to as the Right-to-Know Law] act of February

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14, 2008 (P.L.6, No.3), known as the Right-to-Know Law.

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Section 6.  Violations, affirmative defenses and penalties.

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* * *

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(c)  Commonwealth administrative penalties.--

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(1)  If the department or a State licensing agency [or a

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county board of health] determines that a person has violated

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subsection (a), the person shall be subject to a penalty not

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to exceed $250.

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(2)  If the department or a State licensing agency [or a

9

county board of health] determines that a person has violated

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subsection (a) within one year of receiving a penalty under

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paragraph (1), the person shall be subject to a penalty not

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to exceed $500.

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(3)  If the department or a State licensing agency [or a

14

county board of health] determines that a person violated

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subsection (a) within one year of receiving a penalty under

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paragraph (2), the person shall be subject to a penalty not

17

to exceed $1,000.

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(4)  This subsection is subject to 2 Pa.C.S. (relating to

19

administrative law and procedure).

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(5)  The penalties collected under this subsection shall

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be retained by the department or the State licensing agency

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initiating the enforcement action.

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* * *

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Section 10.  Administration.

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(a)  Regulations.--The department shall promulgate

26

regulations to implement this act.

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(b)  Revision of forms.--The Department of Revenue may revise

28

the form for reporting sales tax revenue to require separate

29

reporting of sales of [alcohol and] tobacco and tobacco-related

30

products for purposes of claiming exemptions under this act.

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Section 3.  Section 11 of the act is repealed:

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[Section 11.  Preemption of local ordinances.

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(a)  General rule.--Except as set forth in subsection (b),

4

the following apply:

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(1)  This act shall supersede any ordinance, resolution

6

or regulation adopted by a political subdivision concerning

7

smoking in a public place.

8

(2)  No political subdivision shall have the authority to

9

adopt or enforce any ordinance, regulation or resolution

10

which is in conflict with this act.

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(b)  Exception.--Subsection (a) shall not apply to a city of

12

the first class. A city of the first class may not change or

13

amend its ordinance to conflict with any provision of this act.]

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Section 4.  The act is amended by adding a section to read:

15

Section 12.  Effect on local rules and ordinances.

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This act shall not be construed to restrict the power of a

17

political subdivision to adopt and enforce any rule or ordinance

18

that complies with at least the minimum applicable standards set

19

forth in this act.

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Section 5.  Sections 29 and 30 of the act are amended to

21

read:

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Section [29] 13.  [Repeal] Repeals.

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(a)  Intent.--The General Assembly declares that the repeal

24

under subsection (b) is necessary to effectuate this act.

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(b)  [Provision] Provisions.--

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(1)  Section 10.1 of the act of April 27, 1927 (P.L.465,

27

No.299), referred to as the Fire and Panic Act, is repealed.

28

(2)  Section 15.1 of the Fire and Panic Act is repealed

29

insofar as it refers to section 10.1 of that act and to the

30

extent of any inconsistency with this act.

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Section [30] 14.  Effective date.

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This act shall take effect in 90 days.

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Section 6.  This act shall take effect in 60 days.

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