AN ACT

 

1Amending the act of June 13, 2008 (P.L.182, No.27), entitled "An
2act regulating smoking in this Commonwealth; imposing powers
3and duties on the Department of Health and local boards of
4health; providing penalties; preempting local action; and
5making a related repeal," further prohibiting smoking in
6public places; providing for local ordinances; and making a
7related repeal of the Fire and Panic Act.

8The General Assembly of the Commonwealth of Pennsylvania
9hereby enacts as follows:

10Section 1. The title of the act of June 13, 2008 (P.L.182,
11No.27), known as the Clean Indoor Air Act, is amended to read:

12AN ACT

13Regulating smoking in this Commonwealth; imposing powers

14and duties on the Department of Health and local boards of
15health; providing penalties; [preempting] repealing 
16provisions relating to preemption of local action; providing 
17for effect on local ordinances; and making [a related repeal]
18related repeals.

19Section 2. Sections 2, 3(b) and (c), 4, 5(d), 6(c) and 10 of
20the act are amended to read:

1Section 2. Definitions.

2The following words and phrases when used in this act shall
3have the meanings given to them in this section unless the
4context clearly indicates otherwise:

5["Cigar bar." Any of the following:

6(1) An establishment which, on the effective date of 
7this section, operates pursuant to an eating place retail 
8dispenser's or restaurant liquor license under the act of 
9April 12, 1951 (P.L.90, No.21), known as the Liquor Code, and 
10is physically connected by a door, passageway or other 
11opening and directly adjacent to a tobacco shop.

12(2) An establishment which, at any time, operates
13pursuant to an eating place retail dispenser's license, malt
14or brewed beverage distributor's license or restaurant liquor
15license under the Liquor Code, and has total annual sales of
16tobacco products, including tobacco, accessories or cigar
17storage lockers or humidors of at least 15% of the combined
18gross sales of the establishment.]

19"Cigar bar." An establishment with a permit or license to
20sell alcoholic beverages pursuant to the act of April 12, 1951
21(P.L.90, No.21), known as the Liquor Code, that satisfies all of
22the following:

23(1) Generates 60% or more of its quarterly gross revenue
24from the sale of alcoholic beverages for consumption on the
25premises by the customers.

26(2) Generates 25% or more of its quarterly gross revenue
27from the sale of cigars for consumption on the premises by
28customers.

29(3) Has a humidor on the premises.

30(4) Does not permit individuals under 18 years of age.

1Revenue generated from other tobacco sales, including cigarette
2vending machines, shall not be used to determine whether an
3establishment satisfies the definition of a cigar bar.

4"Cigar lounge." An establishment without a license to sell
5alcoholic beverages that satisfies all of the following:

6(1) Derives more than 80% of its quarterly gross revenue
7from the sale of cigars for consumption on the premises by
8customers.

9(2) Has a humidor on the premises.

10(3) Does not allow individuals under 18 year of age to
11enter the premises.

12(4) May serve food and nonalcoholic beverages for
13consumption on the premises by customers.

14Revenue generated from other tobacco sales, including cigarette
15vending machines, shall not be used to determine whether an
16establishment satisfies this definition.

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

18"Drinking establishment." [Any of the following:

19(1)] An establishment which[:

20(i)] operates pursuant to an eating place retail 
21dispenser's license, restaurant liquor license or retail 
22dispenser's license under the act of April 12, 1951 (P.L.

2390, No.21), known as the Liquor Code[;]. The term also 
24includes a nightclub.

25[(ii) has total annual sales of food sold for on-
26premises consumption of less than or equal to 20% of the
27combined gross sales of the establishment; and

28(iii) does not permit individuals under 18 years of
29age.

30(2) An enclosed area within an establishment which, on

1the effective date of this section:

2(i) operates pursuant to an eating place retail
3dispenser's license, restaurant liquor license or retail
4dispenser's license under the Liquor Code;

5(ii) is a physically connected or directly adjacent
6enclosed area which is separate from the eating area, has
7a separate air system and has a separate outside
8entrance;

9(iii) has total annual sales of food sold for on-
10premises consumption of less than or equal to 20% of the
11combined gross sales within the permitted smoking area of
12the establishment; and

13(iv) does not permit individuals under 18 years of
14age.

15The term does not include a nightclub.]

16"E-cigarette." Any electronic oral device, such as one
17composed of a heating element, battery or electronic circuit,
18which provides a vapor of nicotine or any other substances and
19the use or inhalation of which simulates smoking. The term shall
20include any such device, whether manufactured, distributed,
21marketed or sold as an e-cigarette, e-cigar or e-pipe or under
22any other product name or descriptor.

23"Enclosed area." All space between a floor and a ceiling
24that is bounded on at least two sides by walls, doorways or
25windows, either open or closed. A wall includes any retractable
26divider, garage door or other physical barrier, whether
27temporary or permanent and whether or not containing openings of
28any kinds.

29["Full-service truck stop." An establishment catering to
30long-haul truck drivers that provides shower facilities for a

1fee.

2"Gaming floor." Any portion of a licensed facility where
3slot machines have been installed for use or play as approved by
4the Pennsylvania Gaming Control Board. The term does not include
5an area adjacent to the gaming floor, including any hallway,
6reception area, retail space, bar, nightclub, restaurant, hotel,
7entertainment venue or office space.]

8"Licensed facility." As defined in 4 Pa.C.S. § 1103 
9(relating to definitions).

10"Night club." A public hall or hall for which admission is
11generally charged and which is primarily or predominantly
12devoted to dancing or to shows or cabarets as opposed to a
13facility that is primarily a bar, tavern or dining facility.

14"Patio." Any outdoor deck, patio or similar outdoor service
15area which is part of a food or drinking establishment.

16"Private club." An organization [which is any of the
17following:

18(1) A reputable group of individuals associated together
19as an organization for legitimate purposes of mutual benefit,
20entertainment, fellowship or lawful convenience which does
21all of the following:

22(i) Regularly and exclusively occupies, as owner or
23lessee, a clubhouse or quarter for the use of its
24members.

25(ii) Holds regular meetings; conducts its business
26through officers regularly elected; admits members by
27written application, investigation and ballot; and
28charges and collects dues from elected members.

29(iii) Has been in continuous existence for a period
30of ten years as such an organization.

1(2) A volunteer ambulance service.

2(3) A volunteer fire company.

3(4) A volunteer rescue company.], whether incorporated 
4or not:

5(1) Which is the owner, lessee or occupant of a building
6or portion thereof used exclusively for club purposes at all
7times.

8(2) Which is operated solely for a recreational,
9fraternal, social, patriotic, political, benevolent or
10athletic purpose, but not for pecuniary gain.

11(3) Which only sells alcoholic beverages incidental to
12its operation.

13(4) The affairs and management of which are conducted by
14a board of directors, executive committee or similar body
15chosen by the members at an annual meeting.

16(5) Which has established bylaws or a constitution to
17govern its activities.

18(6) Has been granted an exemption from the payment of
19Federal income tax as a club under section 501 of the
20Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. §
21501).

22"Public meeting." A meeting open to the public. The term 
23includes a meeting under 65 Pa.C.S. Ch. 7 (relating to open 
24meetings).

25"Public place." An enclosed area which serves as a
26workplace, commercial establishment or an area where the public
27is invited or permitted. The term includes:

28(1) A facility which provides education, food or health
29care-related services.

30(2) A vehicle used for mass transportation. This

1paragraph includes a train, subway, bus, including a
2chartered bus, plane, taxicab and limousine.

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

4(4) A public facility. This paragraph includes a
5facility to which the public is invited or in which the
6public is permitted and a private home which provides child-
7care or adult day-care services.

8(5) A sports or recreational facility, theater or
9performance establishment.

10(6) A truck stop.

11(7) A residential facility.

12(8) A private club.

13(9) A drinking establishment.

14(10) A licensed facility.

15(11) A patio.

16"Residential facility." The term includes any of the
17following:

18(1) A long-term care facility regulated under 42 CFR §
19483.15 (relating to quality of life).

20(2) Residential adult care facility.

21(3) Community mental health care facility.

22(4) Drug or alcohol treatment facility.

23(5) Day treatment programs.

24"Smoking." [The carrying by a person of a lighted cigar,
25cigarette, pipe or other lighted smoking device.] Inhaling, 
26exhaling, burning or carrying any lighted or heated cigar, 
27cigarette or pipe or any other lighted or heated tobacco plant 
28product intended for inhalation, in any manner or in any form. 
29The term includes the use of an e-cigarette which creates a 
30vapor in any manner or in any form or the use of any oral
 

1smoking device for the purpose of circumventing the prohibition 
2of smoking in this act.

3"Tobacco shop." A business establishment whose sales of
4tobacco and tobacco-related products, including cigars, pipe
5tobacco and smoking accessories, comprise at least [50%] 80% of
6the gross annual sales where sale of nontobacco items is 
7incidental. This term does not include a stand-alone kiosk or
8establishment comprised solely of cigarette vending machines.

9["Volunteer ambulance service." As defined in section 102 of 
10the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer 
11Fire Company and Volunteer Ambulance Service Grant Act.

12"Volunteer fire company." As defined in section 102 of the 
13act of July 31, 2003 (P.L.73, No.17), known as the Volunteer 
14Fire Company and Volunteer Ambulance Service Grant Act.

15"Volunteer rescue company." As defined in section 102 of the 
16act of July 31, 2003 (P.L.73, No.17), known as the Volunteer 
17Fire Company and Volunteer Ambulance Service Grant Act.]

18"Workplace." An indoor area serving as a place of
19employment, occupation, business, trade, craft, professional or
20volunteer activity[.], including, but not limited to, work 
21areas, private offices, employee lounges, restrooms, conference 
22rooms, meeting rooms, classrooms, employee cafeterias, hallways, 
23construction sites, temporary offices and work vehicles.

24Section 3. Prohibition.

25* * *

26(b) Exceptions.--Subsection (a) shall not apply to any of
27the following:

28(1) A private home, private residence or private vehicle
29unless the private home, private residence or private vehicle
30is [being used at the] used at any time for the provision of

1child-care services, adult day-care services or services
2related to the care of children and youth in State or county
3custody.

4[(2) Designated quarters:

5(i) within a lodging establishment which are
6available for rent to guests accounting for no more than
725% of the total number of lodging units within a single
8lodging establishment; or

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

10(3) A tobacco shop.

11[(4) A workplace of a manufacturer, importer or
12wholesaler of tobacco products; a manufacturer of tobacco-
13related products, including lighters; a tobacco leaf dealer
14or processor; or a tobacco storage facility.

15(5) Any of the following residential facilities:

16(i) A long-term care facility regulated under 42 CFR
17483.15 (relating to quality of life). This subparagraph
18shall not apply if 42 CFR 483.15 is abrogated or expires.

19(ii) A separate enclosed room or designated smoking
20room in a residential adult care facility, community
21mental health care facility, drug and alcohol facility or
22other residential health care facility not covered under
23subparagraph (i).

24(iii) A designated smoking room in a facility which
25provides day treatment programs.

26(6) Subject to subsection (c)(2), a private club, except
27where the club is:

28(i) open to the public through general advertisement
29for a club-sponsored event; or

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

1club sponsored.

2(7) A place where a fundraiser is conducted by a
3nonprofit and charitable organization one time per year if
4all of the following apply:

5(i) The place is separate from other public areas
6during the event.

7(ii) Food and beverages are available to attendees.

8(iii) Individuals under 18 years of age are not
9permitted to attend.

10(iv) Cigars are sold, auctioned or given as gifts,
11and cigars are a feature of the event.

12(8) An exhibition hall, conference room, catering hall
13or similar facility used exclusively for an event to which
14the public is invited for the primary purpose of promoting or
15sampling tobacco products, subject to the following:

16(i) All of the following must be met:

17(A) Service of food and drink is incidental.

18(B) The sponsor or organizer gives notice in all
19advertisements and other promotional materials that
20smoking will not be restricted.

21(C) At least 75% of all products displayed or
22distributed at the event are tobacco or tobacco-
23related products.

24(D) Notice that smoking will not be restricted
25is prominently posted at the entrance to the
26facility.

27(ii) A single retailer, manufacturer or distributor
28of tobacco may not conduct more than six days of a
29promotional event under this paragraph in any calendar
30year.

1(9) A cigar bar.

2(10) A drinking establishment.

3(11) Unless otherwise increased under this paragraph, 
425% of the gaming floor at a licensed facility. No earlier 
5than 90 days following the effective date of this section or 
6the date of commencement of slot machine operations at a 
7licensed facility, whichever is later, a licensed facility 
8shall request a report from the Department of Revenue that 
9analyzes the gross terminal revenue per slot machine unit in 
10operation at the licensed facility within the 90-day period 
11preceding the request. If the report shows that the average 
12gross terminal revenue per slot machine unit in the 
13designated smoking area equals or exceeds the average gross 
14terminal revenue per slot machine unit in the designated 
15nonsmoking area, the licensed facility may increase the 
16designated smoking area of the gaming floor in proportion to 
17the percentage difference in revenue. A licensed facility may 
18request this report from the Department of Revenue on a 
19quarterly basis and may increase the designated smoking area 
20of the gaming floor accordingly. At no time may the 
21designated smoking area exceed 50% of the gaming floor. The 
22board shall have jurisdiction to verify the gross terminal 
23revenues included in the report to ensure compliance with the 
24requirements under this paragraph. Movement of the licensed 
25facility from a temporary facility to a permanent facility 
26shall not require the licensed facility to revert to the 
27minimum percentage set forth under this paragraph.]

28(12) A designated outdoor smoking area within the
29confines of a sports or recreational facility, theater or
30performance establishment.

1(13) A cigar bar or cigar lounge that, as of the
2effective date of this paragraph, operated as a cigar bar or
3cigar lounge and satisfies all of the following requirements:

4(i) Smoke from the cigar bar or cigar lounge does
5not migrate into an enclosed area where smoking is
6prohibited pursuant to this act.

7(ii) The cigar bar or cigar lounge is located in a
8freestanding structure that shares no common walls with
9other establishments and is occupied solely by the cigar
10bar or cigar lounge.

11(iii) The cigar bar or cigar lounge satisfactorily
12reports on a quarterly basis to the department on a form
13prescribed by the department one of the following:

14(A) the revenue generated from the sale of
15cigars for consumption on the premises by customers;
16or

17(B) the sale of cigars and alcoholic beverages
18for consumption on the premises by customers as a
19percentage of quarterly gross revenue.

20The department shall determine whether any additional
21documentation is required by the cigar bar or cigar
22lounge to verify revenue data submitted by the cigar bar
23or cigar lounge.

24(iv) The cigar bar or cigar lounge does not expand
25in size or change its location after the date of this
26paragraph.

27This paragraph shall not apply to any business that is
28established for the purpose of avoiding compliance with this
29act. Any cigar bar or cigar lounge that fails to satisfy any
30of the requirements of this paragraph, including the gross

1revenue requirements, in any one calendar quarter shall
2immediately lose its exception status and shall not be
3eligible for the exception in the future.

4(c) Conditions and qualifications for exceptions.--

5[(1)] In order to be excepted under subsection (b), a 
6[drinking establishment,] cigar bar, cigar lounge or tobacco 
7shop must submit a letter to the department, accompanied by 
8verifiable supporting documentation,[to the department] 
9claiming an exception under subsection (b). Exception shall 
10be based upon the establishment's books, accounts, revenues 
11or receipts, including those reported to the Department of 
12Revenue for sales tax purposes, from the previous year or 
13stated projected annual revenues, which shall be verified 
14within six months.

15[(2) In order to qualify for the exception under 
16subsection (b)(6), a private club must take and record a vote 
17of its officers under the bylaws to address smoking in the 
18private club's facilities.]

19Section 4. Signage.

20(a) General rule.--"Smoking Permitted" or "No Smoking" signs
21or the international "No Smoking" symbol, which consists of a
22pictorial representation of a burning cigarette in a circle with
23a bar across it, shall be prominently posted and properly
24maintained where smoking is regulated by this act by the owner,
25operator, manager or other person having control of the area. A
26"Smoking Permitted" sign shall be prominently posted and
27maintained at every entrance to a public place where smoking is
28permitted under this act.

29(b) Cigar bars and cigar lounges.--

30(1) A person who manages, operates or controls a cigar

1bar or cigar lounge shall post or cause to be posted health
2warning signage that states:

3WARNING: Cigar smoking causes lung cancer, heart disease
4and other diseases and cancers. Cigars contain nicotine,
5tar and carcinogens. Cigar smoking is not a safe
6alternative to cigarette smoking.

7(2) The health warning signage shall be clearly visible
8to persons entering the cigar bar or cigar lounge and visibly
9posted in 48-point font size or greater in every room where
10smoking is permitted. The owner of the cigar bar or cigar
11lounge shall provide the health warning required by paragraph
12(1) on every menu available to customers, and the warning
13shall be clearly stated in 14-point font size or greater.

14Section 5. Enforcement.

15* * *

16(d) Access to records.--A [drinking establishment,] cigar 
17bar and tobacco shop shall make available all books, accounts, 
18revenues, receipts and other information to the department, the 
19Department of Revenue, the State licensing agency or a county 
20board of health as necessary to enforce this act. All 
21information submitted to the Department of Health, a county 
22board or other Commonwealth agency with enforcement duties under 
23this act[, including information to verify the on-site food 
24consumption of a drinking establishment,] shall be confidential 
25and shall not be subject to the [act of June 21, 1957 (P.L.390, 
26No.212), referred to as the Right-to-Know Law] act of February 
2714, 2008 (P.L.6, No.3), known as the Right-to-Know Law.

28Section 6. Violations, affirmative defenses and penalties.

29* * *

30(c) Commonwealth administrative penalties.--

1(1) If the department or a State licensing agency [or a
2county board of health] determines that a person has violated
3subsection (a), the person shall be subject to a penalty not
4to exceed $250.

5(2) If the department or a State licensing agency [or a
6county board of health] determines that a person has violated
7subsection (a) within one year of receiving a penalty under
8paragraph (1), the person shall be subject to a penalty not
9to exceed $500.

10(3) If the department or a State licensing agency [or a
11county board of health] determines that a person violated
12subsection (a) within one year of receiving a penalty under
13paragraph (2), the person shall be subject to a penalty not
14to exceed $1,000.

15(4) This subsection is subject to 2 Pa.C.S. (relating to 
16administrative law and procedure).

17(5) The penalties collected under this subsection shall
18be retained by the department or the State licensing agency
19initiating the enforcement action.

20* * *

21Section 10. Administration.

22(a) Regulations.--The department shall promulgate
23regulations to implement this act.

24(b) Revision of forms.--The Department of Revenue may revise 
25the form for reporting sales tax revenue to require separate 
26reporting of sales of [alcohol and] tobacco and tobacco-related 
27products for purposes of claiming exemptions under this act.

28Section 3. Section 11 of the act is repealed:

29[Section 11. Preemption of local ordinances.

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

1the following apply:

2(1) This act shall supersede any ordinance, resolution
3or regulation adopted by a political subdivision concerning
4smoking in a public place.

5(2) No political subdivision shall have the authority to
6adopt or enforce any ordinance, regulation or resolution
7which is in conflict with this act.

8(b) Exception.--Subsection (a) shall not apply to a city of
9the first class. A city of the first class may not change or
10amend its ordinance to conflict with any provision of this act.]

11Section 4. The act is amended by adding a section to read:

12Section 12. Effect on local rules and ordinances.

13This act shall not be construed to restrict the power of a
14political subdivision to adopt and enforce any rule or ordinance
15that exceeds the minimum applicable standards set forth in this
16act.

17Section 5. Sections 29 and 30 of the act are amended to
18read:

19Section [29] 13. [Repeal] Repeals.

20(a) Intent.--The General Assembly declares that the repeal
21under subsection (b) is necessary to effectuate this act.

22(b) [Provision] Provisions.--

23(1) Section 10.1 of the act of April 27, 1927 (P.L.465, 
24No.299), referred to as the Fire and Panic Act, is repealed.

25(2) Section 15.1 of the Fire and Panic Act is repealed
26insofar as it refers to section 10.1 of that act and to the
27extent of any inconsistency with this act.

28Section [30] 14. Effective date.

29This act shall take effect in 90 days.

30Section 6. This act shall take effect in 60 days.

 

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