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PRINTER'S NO. 1649
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1309
Session of
2017
INTRODUCED BY BAKER, MURT, MULLERY, O'BRIEN, BULLOCK, FRANKEL,
SCHWEYER, DALEY, DeLUCA, DAY, MAHER, BRIGGS, F. KELLER,
McCARTER, LEWIS, GAINEY, RYAN AND BOYLE, MAY 5, 2017
REFERRED TO COMMITTEE ON HEALTH, MAY 5, 2017
AN ACT
Amending the act of June 13, 2008 (P.L.182, No.27), entitled "An
act regulating smoking in this Commonwealth; imposing powers
and duties on the Department of Health and local boards of
health; providing penalties; preempting local action; and
making a related repeal," further providing for the title of
the act, for definitions, for prohibition, for signage, for
enforcement, for annual reports, for administration, for
preemption of local ordinances and for repeal; and making
editorial changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The title of the act of June 13, 2008 (P.L.182,
No.27), known as the Clean Indoor Air Act, is amended to read:
AN ACT
Regulating smoking in this Commonwealth; imposing powers and
duties on the Department of Health and local boards of
health; providing penalties; [preempting local action;] and
making [a related repeal] related repeals.
Section 2. Sections 2, 3(b) and (c), 4, 5(d), 8, 10, 11 and
29 of the act are amended to read:
Section 2. Definitions.
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The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
["Cigar bar." Any of the following:
(1) An establishment which, on the effective date of
this section, operates pursuant to an eating place retail
dispenser's or restaurant liquor license under the act of
April 12, 1951 (P.L.90, No.21), known as the Liquor Code, and
is physically connected by a door, passageway or other
opening and directly adjacent to a tobacco shop.
(2) An establishment which, at any time, operates
pursuant to an eating place retail dispenser's license, malt
or brewed beverage distributor's license or restaurant liquor
license under the Liquor Code, and has total annual sales of
tobacco products, including tobacco, accessories or cigar
storage lockers or humidors of at least 15% of the combined
gross sales of the establishment.]
"Department." The Department of Health of the Commonwealth.
["Drinking establishment." Any of the following:
(1) An establishment which:
(i) operates pursuant to an eating place retail
dispenser's license, restaurant liquor license or retail
dispenser's license under the act of April 12, 1951
(P.L.90, No.21), known as the Liquor Code;
(ii) has total annual sales of food sold for on-
premises consumption of less than or equal to 20% of the
combined gross sales of the establishment; and
(iii) does not permit individuals under 18 years of
age.
(2) An enclosed area within an establishment which, on
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the effective date of this section:
(i) operates pursuant to an eating place retail
dispenser's license, restaurant liquor license or retail
dispenser's license under the Liquor Code;
(ii) is a physically connected or directly adjacent
enclosed area which is separate from the eating area, has
a separate air system and has a separate outside
entrance;
(iii) has total annual sales of food sold for on-
premises consumption of less than or equal to 20% of the
combined gross sales within the permitted smoking area of
the establishment; and
(iv) does not permit individuals under 18 years of
age.
The term does not include a nightclub.
"Full-service truck stop." An establishment catering to
long-haul truck drivers that provides shower facilities for a
fee.
"Gaming floor." Any portion of a licensed facility where
slot machines have been installed for use or play as approved by
the Pennsylvania Gaming Control Board. The term does not include
an area adjacent to the gaming floor, including any hallway,
reception area, retail space, bar, nightclub, restaurant, hotel,
entertainment venue or office space.
"Licensed facility." As defined in 4 Pa.C.S. ยง 1103
(relating to definitions).
"Night club." A public hall or hall for which admission is
generally charged and which is primarily or predominantly
devoted to dancing or to shows or cabarets as opposed to a
facility that is primarily a bar, tavern or dining facility.
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"Private club." An organization which is any of the
following:
(1) A reputable group of individuals associated together
as an organization for legitimate purposes of mutual benefit,
entertainment, fellowship or lawful convenience which does
all of the following:
(i) Regularly and exclusively occupies, as owner or
lessee, a clubhouse or quarter for the use of its
members.
(ii) Holds regular meetings; conducts its business
through officers regularly elected; admits members by
written application, investigation and ballot; and
charges and collects dues from elected members.
(iii) Has been in continuous existence for a period
of ten years as such an organization.
(2) A volunteer ambulance service.
(3) A volunteer fire company.
(4) A volunteer rescue company.]
"Electronic smoking device." A product containing or
delivering nicotine or another substance intended for human
consumption that can be used by an individual in any manner for
the purpose of inhaling vapor or aerosol from the product. The
term includes any device, whether manufactured, distributed,
marketed or sold as an e-cigarette, e-cigar, e-pipe, e-hookah or
vape pen, or under any other product name or descriptor.
"Enclosed area." All space between a floor and a ceiling
that is bounded on at least two sides by walls, doorways or
windows, either open or closed. As used in this definition,
"wall" includes any retractable divider, garage door or other
physical barrier, whether temporary or permanent and whether or
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not containing openings of any kind.
"Patio." An outdoor deck, patio or similar outdoor service
area which is part of a food or drinking establishment.
"Public meeting." A meeting open to the public. The term
includes a meeting under 65 Pa.C.S. Ch. 7 (relating to open
meetings).
"Public place." An enclosed area which serves as a
workplace, commercial establishment, transit vehicle or an area
where the public is invited or permitted. [The term includes:
(1) A facility which provides education, food or health
care-related services.
(2) A vehicle used for mass transportation. This
paragraph includes a train, subway, bus, including a
chartered bus, plane, taxicab and limousine.
(3) A train station, subway station or bus station.
(4) A public facility. This paragraph includes a
facility to which the public is invited or in which the
public is permitted and a private home which provides child-
care or adult day-care services.
(5) A sports or recreational facility, theater or
performance establishment.] The term includes the space
within 20 feet of a public entrance to the enclosed area.
"Smoking." [The carrying by a person of a lighted cigar,
cigarette, pipe or other lighted smoking device.] Inhaling,
exhaling, burning or carrying a lighted or heated cigar,
cigarette or pipe, or another lighted or heated tobacco or plant
product intended for inhalation, whether natural or synthetic,
including hookahs. The term also includes the use of an
electronic smoking device which creates an aerosol or vapor, in
any manner or in any form.
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["Tobacco shop." A business establishment whose sales of
tobacco and tobacco-related products, including cigars, pipe
tobacco and smoking accessories, comprise at least 50% of the
gross annual sales. This term does not include a stand-alone
kiosk or establishment comprised solely of cigarette vending
machines.
"Volunteer ambulance service." As defined in section 102 of
the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
Fire Company and Volunteer Ambulance Service Grant Act.
"Volunteer fire company." As defined in section 102 of the
act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
Fire Company and Volunteer Ambulance Service Grant Act.
"Volunteer rescue company." As defined in section 102 of the
act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
Fire Company and Volunteer Ambulance Service Grant Act.]
"Workplace." An [indoor] enclosed area serving as a place of
employment, occupation, business, trade, craft, professional or
volunteer activity. The term includes work areas, private
offices, employee lounges, restrooms, conference rooms, meeting
rooms, classrooms, employee cafeterias, hallways, construction
sites, temporary offices and work vehicles.
Section 3. Prohibition.
* * *
(b) Exceptions.--Subsection (a) shall not apply to any of
the following:
(1) A private home, private residence or private vehicle
unless the private home, private residence or private vehicle
is [being used at the] used at any time for the provision of
child-care services, adult day-care services or services
related to the care of children and youth in State or county
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custody.
[(2) Designated quarters:
(i) within a lodging establishment which are
available for rent to guests accounting for no more than
25% of the total number of lodging units within a single
lodging establishment; or
(ii) within a full-service truck stop.
(3) A tobacco shop.
(4) A workplace of a manufacturer, importer or
wholesaler of tobacco products; a manufacturer of tobacco-
related products, including lighters; a tobacco leaf dealer
or processor; or a tobacco storage facility.
(5) Any of the following residential facilities:
(i) A long-term care facility regulated under 42 CFR
483.15 (relating to quality of life). This subparagraph
shall not apply if 42 CFR 483.15 is abrogated or expires.
(ii) A separate enclosed room or designated smoking
room in a residential adult care facility, community
mental health care facility, drug and alcohol facility or
other residential health care facility not covered under
subparagraph (i).
(iii) A designated smoking room in a facility which
provides day treatment programs.
(6) Subject to subsection (c)(2), a private club, except
where the club is:
(i) open to the public through general advertisement
for a club-sponsored event; or
(ii) leased or used for a private event which is not
club sponsored.
(7) A place where a fundraiser is conducted by a
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nonprofit and charitable organization one time per year if
all of the following apply:
(i) The place is separate from other public areas
during the event.
(ii) Food and beverages are available to attendees.
(iii) Individuals under 18 years of age are not
permitted to attend.
(iv) Cigars are sold, auctioned or given as gifts,
and cigars are a feature of the event.
(8) An exhibition hall, conference room, catering hall
or similar facility used exclusively for an event to which
the public is invited for the primary purpose of promoting or
sampling tobacco products, subject to the following:
(i) All of the following must be met:
(A) Service of food and drink is incidental.
(B) The sponsor or organizer gives notice in all
advertisements and other promotional materials that
smoking will not be restricted.
(C) At least 75% of all products displayed or
distributed at the event are tobacco or tobacco-
related products.
(D) Notice that smoking will not be restricted
is prominently posted at the entrance to the
facility.
(ii) A single retailer, manufacturer or distributor
of tobacco may not conduct more than six days of a
promotional event under this paragraph in any calendar
year.
(9) A cigar bar.
(10) A drinking establishment.
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(11) Unless otherwise increased under this paragraph,
25% of the gaming floor at a licensed facility. No earlier
than 90 days following the effective date of this section or
the date of commencement of slot machine operations at a
licensed facility, whichever is later, a licensed facility
shall request a report from the Department of Revenue that
analyzes the gross terminal revenue per slot machine unit in
operation at the licensed facility within the 90-day period
preceding the request. If the report shows that the average
gross terminal revenue per slot machine unit in the
designated smoking area equals or exceeds the average gross
terminal revenue per slot machine unit in the designated
nonsmoking area, the licensed facility may increase the
designated smoking area of the gaming floor in proportion to
the percentage difference in revenue. A licensed facility may
request this report from the Department of Revenue on a
quarterly basis and may increase the designated smoking area
of the gaming floor accordingly. At no time may the
designated smoking area exceed 50% of the gaming floor. The
board shall have jurisdiction to verify the gross terminal
revenues included in the report to ensure compliance with the
requirements under this paragraph. Movement of the licensed
facility from a temporary facility to a permanent facility
shall not require the licensed facility to revert to the
minimum percentage set forth under this paragraph.
(12) A designated outdoor smoking area within the
confines of a sports or recreational facility, theater or
performance establishment.
(c) Conditions and qualifications for exceptions.--
(1) In order to be excepted under subsection (b), a
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drinking establishment, cigar bar or tobacco shop must submit
a letter, accompanied by verifiable supporting documentation,
to the department claiming an exception under subsection (b).
Exception shall be based upon the establishment's books,
accounts, revenues or receipts, including those reported to
the Department of Revenue for sales tax purposes, from the
previous year or stated projected annual revenues, which
shall be verified within six months.
(2) In order to qualify for the exception under
subsection (b)(6), a private club must take and record a vote
of its officers under the bylaws to address smoking in the
private club's facilities.]
Section 4. Signage.
"Smoking Permitted" or "No Smoking" signs or the
international "No Smoking" symbol, which consists of a pictorial
representation of a burning cigarette in a circle with a bar
across it, shall be prominently posted and properly maintained
where smoking is regulated by this act by the owner, operator,
manager or other person having control of the area. A "Smoking
Permitted" sign shall be prominently posted and maintained at
every entrance to a public place where smoking is permitted
under this act.
Section 5. Enforcement.
* * *
[(d) Access to records.--A drinking establishment, cigar bar
and tobacco shop shall make available all books, accounts,
revenues, receipts and other information to the department, the
Department of Revenue, the State licensing agency or a county
board of health as necessary to enforce this act. All
information submitted to the Department of Health, a county
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board or other Commonwealth agency with enforcement duties under
this act, including information to verify the on-site food
consumption of a drinking establishment, shall be confidential
and shall not be subject to the act of June 21, 1957 (P.L.390,
No.212), referred to as the Right-to-Know Law.]
Section 8. Annual reports.
(a) Requirement.--The department shall file an annual report
by December 1 with the chairman and minority chairman of the
Public Health and Human Services Committee of the Senate and the
chairman and minority chairman of the Health [and Human
Services] Committee of the House of Representatives.
(b) Contents.--The report shall include:
(1) The number of violations of this act by county as
reported to the department.
(2) The number of enforcement actions initiated under
this act by the department, by another State licensing agency
or by a county board of health.
(3) A description of the enforcement activities of the
department. This paragraph includes the number of personnel
assigned to enforce this act, enforcement strategies
undertaken by the department or a licensing agency and other
information relating to the administration and implementation
of this act.
Section 10. Administration.
[(a) Regulations.--]The department shall promulgate
regulations to implement this act.
[(b) Revision of forms.--The Department of Revenue may
revise the form for reporting sales tax revenue to require
separate reporting of sales of alcohol and tobacco for purposes
of claiming exemptions under this act.]
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Section 11. [Preemption of local ordinances.
(a) General rule.--Except as set forth in subsection (b),
the following apply:
(1) This act shall supersede any ordinance, resolution
or regulation adopted by a political subdivision concerning
smoking in a public place.
(2) No political subdivision shall have the authority to
adopt or enforce any ordinance, regulation or resolution
which is in conflict with this act.
(b) Exception.--Subsection (a) shall not apply to a city of
the first class. A city of the first class may not change or
amend its ordinance to conflict with any provision of this act.]
Effect on local rules and ordinances.
This act shall not be construed to restrict the power of a
political subdivision to adopt and enforce any rule or ordinance
that exceeds the minimum applicable standards set forth under
this act.
Section 29. [Repeal] Repeals.
(a) Intent.--The General Assembly declares that the [repeal]
repeals under subsection (b) [is] are necessary to effectuate
this act.
(b) [Provision.--Section 10.1 of the act of April 27, 1927
(P.L.465, No.299), referred to as the Fire and Panic Act, is
repealed.] Provisions.--The following parts of acts are
repealed:
(1) Section 10.1 of the act of April 27, 1927 (P.L.465,
No.299), referred to as the Fire and Panic Act.
(2) Section 15.1 of the Fire and Panic Act insofar as it
relates to clean indoor air.
Section 3. This act shall take effect in 60 days.
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