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] September 11, 2008, operates pursuant to an 
8eating place retail dispenser's or restaurant liquor license 
9under the act of April 12, 1951 (P.L.90, No.21), known as the 
10Liquor Code, and is physically connected by a door, 
11passageway or other opening and directly adjacent to a 
12tobacco shop.

13(2) An establishment which, at any time, operates
14pursuant to an eating place retail dispenser's license, malt
15or brewed beverage distributor's license or restaurant liquor
16license under the Liquor Code, and has total annual sales of
17tobacco products, including tobacco, accessories or cigar
18storage lockers or humidors of at least 15% of the combined
19gross sales of the establishment.

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

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

22(1)] An establishment which[:

23(i)] operates pursuant to an eating place retail 
24dispenser's license, restaurant liquor license or retail 
25dispenser's license under the act of April 12, 1951 (P.L.

2690, No.21), known as the Liquor Code[;]. The term also 
27includes a nightclub.

28[(ii) has total annual sales of food sold for on-
29premises consumption of less than or equal to 20% of the
30combined gross sales of the establishment; and

1(iii) does not permit individuals under 18 years of
2age.

3(2) An enclosed area within an establishment which, on
4the effective date of this section:

5(i) operates pursuant to an eating place retail
6dispenser's license, restaurant liquor license or retail
7dispenser's license under the Liquor Code;

8(ii) is a physically connected or directly adjacent
9enclosed area which is separate from the eating area, has
10a separate air system and has a separate outside
11entrance;

12(iii) has total annual sales of food sold for on-
13premises consumption of less than or equal to 20% of the
14combined gross sales within the permitted smoking area of
15the establishment; and

16(iv) does not permit individuals under 18 years of
17age.

18The term does not include a nightclub.]

19"Full-service truck stop." An establishment catering to
20long-haul truck drivers that provides shower facilities for a
21fee.

22"Gaming floor." Any portion of a licensed facility where
23slot machines have been installed for use or play as approved by
24the Pennsylvania Gaming Control Board. [The term does not
25include an area adjacent to the gaming floor, including any
26hallway, reception area, retail space, bar, nightclub,
27restaurant, hotel, entertainment venue or office space.]

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

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

1generally charged and which is primarily or predominantly
2devoted to dancing or to shows or cabarets as opposed to a
3facility that is primarily a bar, tavern or dining facility.

4"Private club." An organization [which is any of the
5following:] including, but not limited to:

6(1) A reputable group of individuals associated together
7as an organization for legitimate purposes of mutual benefit,
8entertainment, fellowship or lawful convenience. [which does
9all of the following:

10(i) Regularly and exclusively occupies, as owner or
11lessee, a clubhouse or quarter for the use of its
12members.

13(ii) Holds regular meetings; conducts its business
14through officers regularly elected; admits members by
15written application, investigation and ballot; and
16charges and collects dues from elected members.

17(iii) Has been in continuous existence for a period
18of ten years as such an organization.]

19(2) A volunteer ambulance service.

20(3) A volunteer fire company.

21(4) A volunteer rescue company.

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 full service truck stop.

11(7) A residential facility.

12(8) A private club.

13(9) A drinking establishment.

14(10) A gaming floor.

15(11) Any outdoor deck, patio or similar outdoor service
16area which is part of a food or drinking establishment.

17"Residential facilities." The term includes any of the
18following:

19(1) A long-term care facility regulated under 42 CFR §
20483.15 (relating to quality of life).

21(2) Residential adult care facility.

22(3) Community mental health care facility.

23(4) Drug or alcohol facility.

24(5) Day treatment programs.

25"Smoking." The carrying by a person of a lighted cigar,
26cigarette, pipe or other lighted smoking device.

27"Tobacco shop." A business establishment whose sales of
28tobacco and tobacco-related products, including cigars, pipe
29tobacco and smoking accessories, comprise at least 50% of the
30gross annual sales. This term does not include a stand-alone

1kiosk or establishment comprised solely of cigarette vending
2machines.

3"Volunteer ambulance service." As defined in section 102 of 
4the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer 
5Fire Company and Volunteer Ambulance Service Grant Act.

6"Volunteer fire company." As defined in section 102 of the 
7act of July 31, 2003 (P.L.73, No.17), known as the Volunteer 
8Fire Company and Volunteer Ambulance Service Grant Act.

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

12"Workplace." An indoor area serving as a place of
13employment, occupation, business, trade, craft, professional or
14volunteer activity.

15Section 3. Prohibition.

16* * *

17(b) Exceptions.--Subsection (a) shall not apply to any of
18the following:

19(1) A private home, private residence or private vehicle
20unless the private home, private residence or private vehicle
21is being used at the time for the provision of child-care
22services, adult day-care services or services related to the
23care of children and youth in State or county custody.

24(2) Designated quarters[:

25(i)] within a lodging establishment which are
26available for rent to guests accounting for no more than
2725% of the total number of lodging units within a single
28lodging establishment.[; or

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

30(3) A tobacco shop.

1(4) A workplace of a manufacturer, importer or
2wholesaler of tobacco products; a manufacturer of tobacco-
3related products, including lighters; a tobacco leaf dealer
4or processor; or a tobacco storage facility.

5[(5) Any of the following residential facilities:

6(i) A long-term care facility regulated under 42 CFR
7483.15 (relating to quality of life). This subparagraph
8shall not apply if 42 CFR 483.15 is abrogated or expires.

9(ii) A separate enclosed room or designated smoking
10room in a residential adult care facility, community
11mental health care facility, drug and alcohol facility or
12other residential health care facility not covered under
13subparagraph (i).

14(iii) A designated smoking room in a facility which
15provides day treatment programs.

16(6) Subject to subsection (c)(2), a private club, except
17where the club is:

18(i) open to the public through general advertisement
19for a club-sponsored event; or

20(ii) leased or used for a private event which is not
21club sponsored.

22(7) A place where a fundraiser is conducted by a
23nonprofit and charitable organization one time per year if
24all of the following apply:

25(i) The place is separate from other public areas
26during the event.

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

28(iii) Individuals under 18 years of age are not
29permitted to attend.

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

1and cigars are a feature of the event.

2(8) An exhibition hall, conference room, catering hall
3or similar facility used exclusively for an event to which
4the public is invited for the primary purpose of promoting or
5sampling tobacco products, subject to the following:

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

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

8(B) The sponsor or organizer gives notice in all
9advertisements and other promotional materials that
10smoking will not be restricted.

11(C) At least 75% of all products displayed or
12distributed at the event are tobacco or tobacco-
13related products.

14(D) Notice that smoking will not be restricted
15is prominently posted at the entrance to the
16facility.

17(ii) A single retailer, manufacturer or distributor
18of tobacco may not conduct more than six days of a
19promotional event under this paragraph in any calendar
20year.]

21(9) A cigar bar.

22[(10) A drinking establishment.

23(11) Unless otherwise increased under this paragraph, 
2425% of the gaming floor at a licensed facility. No earlier 
25than 90 days following the effective date of this section or 
26the date of commencement of slot machine operations at a 
27licensed facility, whichever is later, a licensed facility 
28shall request a report from the Department of Revenue that 
29analyzes the gross terminal revenue per slot machine unit in 
30operation at the licensed facility within the 90-day period 

1preceding the request. If the report shows that the average 
2gross terminal revenue per slot machine unit in the 
3designated smoking area equals or exceeds the average gross 
4terminal revenue per slot machine unit in the designated 
5nonsmoking area, the licensed facility may increase the 
6designated smoking area of the gaming floor in proportion to 
7the percentage difference in revenue. A licensed facility may 
8request this report from the Department of Revenue on a 
9quarterly basis and may increase the designated smoking area 
10of the gaming floor accordingly. At no time may the 
11designated smoking area exceed 50% of the gaming floor. The 
12board shall have jurisdiction to verify the gross terminal 
13revenues included in the report to ensure compliance with the 
14requirements under this paragraph. Movement of the licensed 
15facility from a temporary facility to a permanent facility 
16shall not require the licensed facility to revert to the 
17minimum percentage set forth under this paragraph.]

18(12) A designated outdoor smoking area within the
19confines of a sports or recreational facility, theater or
20performance establishment.

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

22[(1)] In order to be excepted under subsection (b), a 
23[drinking establishment,] cigar bar or tobacco shop must 
24submit a letter, accompanied by verifiable supporting 
25documentation,to the department claiming an exception under 
26subsection (b). Exception shall be based upon the 
27establishment's books, accounts, revenues or receipts, 
28including those reported to the Department of Revenue for 
29sales tax purposes, from the previous year or stated 
30projected annual revenues, which shall be verified within six 

1months.

2[(2) In order to qualify for the exception under 
3subsection (b)(6), a private club must take and record a vote 
4of its officers under the bylaws to address smoking in the 
5private club's facilities.]

6Section 4. Signage.

7"Smoking Permitted" or "No Smoking" signs or the
8international "No Smoking" symbol, which consists of a pictorial
9representation of a burning cigarette in a circle with a bar
10across it, shall be prominently posted and properly maintained
11where smoking is regulated by this act by the owner, operator,
12manager or other person having control of the area. A "Smoking
13Permitted" sign shall be prominently posted and maintained at
14every entrance to a public place where smoking is permitted
15under this act.

16Section 5. Enforcement.

17* * *

18(d) Access to records.--A [drinking establishment,] cigar 
19bar and tobacco shop shall make available all books, accounts, 
20revenues, receipts and other information to the department, the 
21Department of Revenue, the State licensing agency or a county 
22board of health as necessary to enforce this act. All 
23information submitted to the Department of Health, a county 
24board or other Commonwealth agency with enforcement duties under 
25this act[, including information to verify the on-site food 
26consumption of a drinking establishment,] shall be confidential 
27and shall not be subject to the [act of June 21, 1957 (P.L.390, 
28No.212), referred to as the Right-to-Know Law] act of February 
2914, 2008 (P.L.6, No.3), known as the Right-to-Know Law.

30Section 6. Violations, affirmative defenses and penalties.

1* * *

2(c) Commonwealth administrative penalties.--

3(1) If the department or a State licensing agency [or a
4county board of health] determines that a person has violated
5subsection (a), the person shall be subject to a penalty not
6to exceed $250.

7(2) If the department or a State licensing agency [or a
8county board of health] determines that a person has violated
9subsection (a) within one year of receiving a penalty under
10paragraph (1), the person shall be subject to a penalty not
11to exceed $500.

12(3) If the department or a State licensing agency [or a
13county board of health] determines that a person violated
14subsection (a) within one year of receiving a penalty under
15paragraph (2), the person shall be subject to a penalty not
16to exceed $1,000.

17(4) This subsection is subject to 2 Pa.C.S. (relating to 
18administrative law and procedure).

19(5) The penalties collected under this subsection shall
20be retained by the department or the State licensing agency
21initiating the enforcement action.

22* * *

23Section 10. Administration.

24(a) Regulations.--The department shall promulgate
25regulations to implement this act.

26(b) Revision of forms.--The Department of Revenue may revise 
27the form for reporting sales tax revenue to require separate 
28reporting of sales of [alcohol and] tobacco and tobacco-related 
29products for purposes of claiming exemptions under this act.

30Section 3. Section 11 of the act is repealed:

1[Section 11. Preemption of local ordinances.

2(a) General rule.--Except as set forth in subsection (b),
3the following apply:

4(1) This act shall supersede any ordinance, resolution
5or regulation adopted by a political subdivision concerning
6smoking in a public place.

7(2) No political subdivision shall have the authority to
8adopt or enforce any ordinance, regulation or resolution
9which is in conflict with this act.

10(b) Exception.--Subsection (a) shall not apply to a city of
11the first class. A city of the first class may not change or
12amend its ordinance to conflict with any provision of this act.]

13Section 4. The act is amended by adding a section to read:

14Section 12. Effect on local rules and ordinances.

15This act shall not be construed to restrict the power of a
16political subdivision to adopt and enforce any rule or ordinance
17that complies with at least the minimum applicable standards set
18forth in this act.

19Section 5. Sections 29 and 30 of the act are amended to
20read:

21Section [29] 13. [Repeal] Repeals.

22(a) Intent.--The General Assembly declares that the repeal
23under subsection (b) is necessary to effectuate this act.

24(b) [Provision] Provisions.--

25(1) Section 10.1 of the act of April 27, 1927 (P.L.465, 
26No.299), referred to as the Fire and Panic Act, is repealed.

27(2) Section 15.1 of the Fire and Panic Act is repealed
28insofar as it refers to section 10.1 of that act and to the
29extent of any inconsistency with this act.

30Section [30] 14. Effective date.

1This act shall take effect in 90 days.

2Section 6. This act shall take effect in 60 days.

 

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