PRIOR PRINTER'S NOS. 25, 1227, 1286,          PRINTER'S NO. 2099
        1326

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 246 Session of 2007


                     Report of the Committee of Conference

        To the Members of the Senate and House of Representatives:

           We, the undersigned, Committee of Conference on the part of
        the Senate and House of Representatives for the purpose of
        considering Senate Bill No. 246, entitled:
        "An act prohibiting smoking in certain public places and
        workplaces; imposing duties upon the Department of Health;
        imposing penalties; preempting local regulations; and repealing
        a related provision of the Fire and Panic Act.
        ESTABLISHING THE SMOKE FREE PENNSYLVANIA ACT; PROHIBITING
        SMOKING IN ENCLOSED AND SUBSTANTIALLY ENCLOSED AREAS; IMPOSING
        DUTIES UPON THE DEPARTMENT OF HEALTH; IMPOSING PENALTIES; AND
        MAKING A RELATED REPEAL,"


        respectfully submit the following bill as our report:

                                           STEWART J. GREENLEAF

                                           CHARLES T. McILHINNEY, JR.


                                  (Committee on the part of the Senate.)

                                           MICHAEL F. GERBER

                                           ROBERT E. BELFANTI, JR.

                                           RONALD E. MILLER

                (Committee on the part of the House of Representatives.)


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                                     AN ACT

     1  Regulating smoking in this Commonwealth; imposing powers and
     2     duties on the Department of Health and local boards of
     3     health; providing penalties; preempting local action; and
     4     making a related repeal.

     5     The General Assembly of the Commonwealth of Pennsylvania
     6  hereby enacts as follows:
     7  Section 1.  Short title.
     8     This act shall be known and may be cited as the Clean Indoor
     9  Air Act.
    10  Section 2.  Definitions.
    11     The following words and phrases when used in this act shall
    12  have the meanings given to them in this section unless the
    13  context clearly indicates otherwise:
    14     "Cigar bar."  Any of the following:
    15         (1)  An establishment which, on the effective date of
    16     this section, operates pursuant to an eating place retail
    17     dispenser's or restaurant liquor license under the act of
    18     April 12, 1951 (P.L.90, No.21), known as the Liquor Code, and
    19     is physically connected by a door, passageway or other
    20     opening and directly adjacent to a tobacco shop.
    21         (2)  An establishment which, at any time, operates
    22     pursuant to an eating place retail dispenser's license, malt
    23     or brewed beverage distributor's license or restaurant liquor
    24     license under the Liquor Code, and has total annual sales of
    25     tobacco products, including tobacco, accessories or cigar
    26     storage lockers or humidors of at least 15% of the combined
    27     gross sales of the establishment.
    28     "Department."  The Department of Health of the Commonwealth.
    29     "Drinking establishment."  Any of the following:
    30         (1)  An establishment which:

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     1             (i)  operates pursuant to an eating place license,
     2         restaurant license or retail dispenser license under the
     3         act of April 12, 1951 (P.L.90, No.21), known as the
     4         Liquor Code;
     5             (ii)  has total annual sales of food sold for on-
     6         premises consumption of less than or equal to 20% of the
     7         combined gross sales of the establishment; and
     8             (iii)  does not permit individuals under 18 years of
     9         age.
    10         (2)  An enclosed area within an establishment which, on
    11     the effective date of this section:
    12             (i)  operates pursuant to an eating place license,
    13         restaurant license or retail dispenser license under the
    14         Liquor Code;
    15             (ii)  is a physically connected or directly adjacent
    16         enclosed area which is separate from the eating area, has
    17         a separate air system and has a separate outside
    18         entrance;
    19             (iii)  has total annual sales of food sold for on-
    20         premises consumption of less than or equal to 20% of the
    21         combined gross sales within the permitted smoking area of
    22         the establishment; and
    23             (iv)  does not permit individuals under 18 years of
    24         age.
    25  The term does not include a nightclub.
    26     "Full service truck stop."  An establishment catering to
    27  long-haul truck drivers that provides shower facilities for a
    28  fee.
    29     "Gaming floor."  Any portion of a licensed facility where
    30  slot machines have been installed for use or play as approved by
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     1  the Pennsylvania Gaming Control Board. The term does not include
     2  an area adjacent to the gaming floor, including any hallway,
     3  reception area, retail space, bar, nightclub, restaurant, hotel,
     4  entertainment venue or office space.
     5     "Licensed facility."  As defined in 4 Pa.C.S. § 1103
     6  (relating to definitions).
     7     "Night club."  A public hall or hall for which admission is
     8  generally charged and which is primarily or predominantly
     9  devoted to dancing or to shows or cabarets as opposed to a
    10  facility that is primarily a bar, tavern or dining facility.
    11     "Private club."  An organization which is any of the
    12  following:
    13         (1)  A reputable group of individuals associated together
    14     as an organization for legitimate purposes of mutual benefit,
    15     entertainment, fellowship or lawful convenience which does
    16     all of the following:
    17             (i)  Regularly and exclusively occupies, as owner or
    18         lessee, a clubhouse or quarter for the use of its
    19         members.
    20             (ii)  Holds regular meetings; conducts its business
    21         through officers regularly elected; admits members by
    22         written application, investigation and ballot; and
    23         charges and collects dues from elected members.
    24             (iii)  Has been in continuous existence for a period
    25         of ten years as such an organization.
    26         (2)  A volunteer ambulance service.
    27         (3)  A volunteer fire company.
    28         (4)  A volunteer rescue company.
    29     "Public meeting."  A meeting open to the public. The term
    30  includes a meeting under 65 Pa.C.S. Ch. 7 (relating to open
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     1  meetings).
     2     "Public place."  An enclosed area which serves as a
     3  workplace, commercial establishment or an area where the public
     4  is invited or permitted. The term includes:
     5         (1)  A facility which provides education, food or health
     6     care-related services.
     7         (2)  A vehicle used for mass transportation. This
     8     paragraph includes a train, subway, bus, including a
     9     chartered bus, plane, taxicab and limousine.
    10         (3)  A train station, subway station or bus station.
    11         (4)  A public facility. This paragraph includes a
    12     facility to which the public is invited or in which the
    13     public is permitted and a private home which provides child-
    14     care or adult day-care services.
    15         (5)  A sports or recreational facility, theater or
    16     performance establishment.
    17     "Smoking."  The carrying by a person of a lighted cigar,
    18  cigarette, pipe or other lighted smoking device.
    19     "Tobacco shop."  A business establishment whose sales of
    20  tobacco and tobacco related products, including cigars, pipe
    21  tobacco and smoking accessories, comprise of at least 50% of the
    22  gross annual sales. This term does not include a stand-alone
    23  kiosk or establishment comprised solely of cigarette vending
    24  machines.
    25     "Volunteer ambulance service."  As defined in section 102 of
    26  the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
    27  Fire Company and Volunteer Ambulance Service Grant Act.
    28     "Volunteer fire company."  As defined in section 102 of the
    29  act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
    30  Fire Company and Volunteer Ambulance Service Grant Act.
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     1     "Volunteer rescue company."  As defined in section 102 of the
     2  act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
     3  Fire Company and Volunteer Ambulance Service Grant Act.
     4     "Workplace."  An indoor area serving as a place of
     5  employment, occupation, business, trade, craft, professional or
     6  volunteer activity.
     7  Section 3.  Prohibition.
     8     (a)  General rule.--Except as set forth under subsection (b),
     9  an individual may not engage in smoking in a public place.
    10  Nothing in this act shall preclude the owner of a public or
    11  private property from prohibiting smoking on the property.
    12     (b)  Exceptions.--Subsection (a) shall not apply to any of
    13  the following:
    14         (1)  A private home, private residence or private vehicle
    15     unless the private home, private residence or private vehicle
    16     is being used at the time for the provision of child-care
    17     services, adult day-care services or services related to the
    18     care of children and youth in State or county custody.
    19         (2)  Designated quarters:
    20             (i)  within a lodging establishment which are
    21         available for rent to guests accounting for no more than
    22         25% of the total number of lodging units within a single
    23         lodging establishment; or
    24             (ii)  within a full service truck stop.
    25         (3)  A tobacco shop.
    26         (4)  A workplace of a manufacturer, importer or
    27     wholesaler of tobacco products; a manufacturer of tobacco-
    28     related products, including lighters; a tobacco leaf dealer
    29     or processor; or a tobacco storage facility.
    30         (5)  Any of the following residential facilities:
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     1             (i)  A long-term care facility regulated under 42 CFR
     2         483.15 (relating to quality of life). This subparagraph
     3         shall not apply if 42 CFR 483.15 is abrogated or expires.
     4             (ii)  A separate enclosed room or designated smoking
     5         room in a residential adult care facility, community
     6         mental health care facility, drug and alcohol facility or
     7         other residential health care facility not covered under
     8         subparagraph (i).
     9             (iii)  A designated smoking room in a facility which
    10         provides day treatment programs.
    11         (6)  Subject to subsection (c)(2), a private club, except
    12     where the club is:
    13             (i)  open to the public through general advertisement
    14         for a club-sponsored event; or
    15             (ii)  leased or used for a private event which is not
    16         club-sponsored.
    17         (7)  A place where a fundraiser is conducted by a
    18     nonprofit and charitable organization one time per year if
    19     all of the following apply:
    20             (i)  The place is separate from other public areas
    21         during the event.
    22             (ii)  Food and beverages are available to attendees.
    23             (iii)  Individuals under 18 years of age are not
    24         permitted to attend.
    25             (iv)  Cigars are sold, auctioned or given as gifts,
    26         and cigars are a feature of the event.
    27         (8)  An exhibition hall, conference room, catering hall
    28     or similar facility used exclusively for an event to which
    29     the public is invited for the primary purpose of promoting or
    30     sampling tobacco products, subject to the following:
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     1             (i)  All of the following must be met:
     2                 (A)  Service of food and drink is incidental.
     3                 (B)  The sponsor or organizer gives notice in all
     4             advertisements and other promotional materials that
     5             smoking will not be restricted.
     6                 (C)  At least 75% of all products displayed or
     7             distributed at the event are tobacco or tobacco-
     8             related products.
     9                 (D)  Notice that smoking will not be restricted
    10             is prominently posted at the entrance to the
    11             facility.
    12             (ii)  A single retailer, manufacturer or distributor
    13         of tobacco may not conduct more than six days of a
    14         promotional event under this paragraph in any calendar
    15         year.
    16         (9)  A cigar bar.
    17         (10)  A drinking establishment.
    18         (11)  Unless otherwise increased under this paragraph,
    19     25% of the gaming floor at a licensed facility. No earlier
    20     than 90 days following the effective date of this section or
    21     the date of commencement of slot machine operations at a
    22     licensed facility, whichever is later, a licensed facility
    23     shall request a report from the Department of Revenue that
    24     analyzes the gross terminal revenue per slot machine unit in
    25     operation at the licensed facility within the 90-day period
    26     preceding the request. If the report shows that the average
    27     gross terminal revenue per slot machine unit in the
    28     designated smoking area equals or exceeds the average gross
    29     terminal revenue per slot machine unit in the designated
    30     nonsmoking area, the licensed facility may increase the
    20070S0246B2099                  - 9 -     

     1     designated smoking area of the gaming floor in proportion to
     2     the percentage difference in revenue. A licensed facility may
     3     request this report from the Department of Revenue on a
     4     quarterly basis and may increase the designated smoking area
     5     of the gaming floor accordingly. At no time may the
     6     designated smoking area exceed 50% of the gaming floor. The
     7     board shall have jurisdiction to verify the gross terminal
     8     revenues included in the report to ensure compliance with the
     9     requirements under this paragraph. Movement of the licensed
    10     facility from a temporary facility to a permanent facility
    11     shall not require the licensed facility to revert to the
    12     minimum percentage set forth under this paragraph.
    13         (12)  A designated outdoor smoking area within the
    14     confines of a sports or recreational facility, theater or
    15     performance establishment.
    16     (c)  Conditions and qualifications for exceptions.--
    17         (1)  In order to be excepted under subsection (b), a
    18     drinking establishment, cigar bar or tobacco shop must submit
    19     a letter, accompanied by verifiable supporting documentation,
    20     to the department claiming an exception under subsection (b).
    21     Exception shall be based upon the establishment's books,
    22     accounts, revenues or receipts, including those reported to
    23     the Department of Revenue for sales tax purposes, from the
    24     previous year or stated projected annual revenues, which
    25     shall be verified within six months.
    26         (2)  In order to qualify for the exception under
    27     subsection (b)(6), a private club must take and record a vote
    28     of its officers under the bylaws to address smoking in the
    29     private club's facilities.
    30  Section 4.  Signage.
    20070S0246B2099                 - 10 -     

     1     "Smoking" or "No Smoking" signs or the international "No
     2  Smoking" symbol, which consists of a pictorial representation of
     3  a burning cigarette in a circle with a bar across it, shall be
     4  prominently posted and properly maintained where smoking is
     5  regulated by this act, by the owner, operator, manager or other
     6  person having control of the area. A "Smoking Permitted" sign
     7  shall be prominently posted and maintained at every entrance to
     8  a public place where smoking is permitted under this act.
     9  Section 5.  Enforcement.
    10     (a)  Complaints.--A complaint regarding a possible violation
    11  of this act shall be made to the appropriate law enforcement
    12  agency or to the department. A complaint to the department shall
    13  be made in one of the following manners:
    14         (1)  In writing.
    15         (2)  By telephone call to the department's toll-free
    16     telephone number.
    17         (3)  By an electronic submission to the department's
    18     regularly maintained Internet website.
    19     (b)  Responsibilities.--
    20         (1)  Except as provided under paragraphs (2) and (3),
    21     upon receipt of a complaint by the department, the following
    22     apply:
    23             (i)  Except as set forth under subparagraph (ii), the
    24         department shall investigate the complaint and enforce
    25         this act.
    26             (ii)  If the public place is subject to licensure by
    27         the Commonwealth, in such case, the department shall
    28         refer the complaint to the appropriate licensing agency
    29         for investigation and enforcement of this act.
    30         (2)  If a complaint is made to the department regarding a
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     1     public place located in a county under subsection (c), the
     2     department shall notify the county board of health. The
     3     county board of health shall investigate the complaint and
     4     enforce this act.
     5         (3)  If the complaint is made to a law enforcement agency
     6     regarding a public place, the agency shall investigate the
     7     complaint and enforce this act.
     8     (c)  County election.--A county may elect to have its board
     9  of health enforce this act by providing written notification to
    10  the department. In such event, the county board of health shall
    11  provide the department with sufficient information regarding its
    12  enforcement actions for the department's annual report required
    13  under section 8.
    14     (d)  Access to records.--A drinking establishment, cigar bar
    15  and tobacco shop shall make available all books, accounts,
    16  revenues, receipts and other information to the department, the
    17  Department of Revenue, State licensing agency or county board of
    18  health as necessary to enforce this act. All information
    19  submitted to the Department of Health, county board or other
    20  Commonwealth agency with enforcement duties under this act,
    21  including information to verify the on-site food consumption of
    22  a drinking establishment, shall be confidential and shall not be
    23  subject to the act of June 21, 1957 (P.L.390, No.212), referred
    24  to as the Right-to-Know Law.
    25  Section 6.  Violations, affirmative defenses and penalties.
    26     (a)  Violations.--It is a violation of this act to do any of
    27  the following:
    28         (1)  Fail to post a sign as required by section 4.
    29         (2)  Permit smoking in a public place where smoking is
    30     prohibited.
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     1         (3)  Smoke in a public place where smoking is prohibited.
     2     (b)  Affirmative defenses.--Any of the following shall be an
     3  affirmative defense to a prosecution or imposition of an
     4  administrative penalty under this act:
     5         (1)  When the violation occurred, the actual control of
     6     the public place was not exercised by the owner, operator or
     7     manager but by a lessee.
     8         (2)  The owner, operator or manager made a good faith
     9     effort to prohibit smoking.
    10         (3)  The owner, operator or manager asserting the
    11     affirmative defense shall do so in the form of a sworn
    12     affidavit setting forth the relevant information mentioned
    13     under paragraphs (1) and (2).
    14     (c)  Commonwealth administrative penalties.--
    15         (1)  If the department or a State licensing agency or a
    16     county board of health determines that a person has violated
    17     subsection (a), the person shall be subject to a penalty not
    18     to exceed $250.
    19         (2)  If the department or State licensing agency or a
    20     county board of health determines that a person has violated
    21     subsection (a) within one year of receiving a penalty under
    22     paragraph (1), the person shall be subject to a penalty not
    23     to exceed $500.
    24         (3)  If the department or State licensing agency or a
    25     county board of health determines that a person violated
    26     subsection (a) within one year of receiving a penalty under
    27     paragraph (2), the person shall be subject to a penalty not
    28     to exceed $1,000.
    29         (4)  This subsection is subject to 2 Pa.C.S. (relating to
    30     administrative law and procedure).
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     1         (5)  The penalties collected under this subsection shall
     2     be retained by the department or State licensing agency
     3     initiating the enforcement action.
     4     (d)  Local administrative penalties.--
     5         (1)  If a county board of health determines that a person
     6     violated subsection (a), the person shall be subject to a
     7     penalty not to exceed $250.
     8         (2)  If a county board of health determines that a person
     9     has violated subsection (a) within one year of receiving a
    10     penalty under paragraph (1), the person shall be subject to a
    11     penalty not to exceed $500.
    12         (3)  If a county board of health determines that a person
    13     violated subsection (a) within one year of receiving a
    14     penalty under paragraph (2), the person shall be subject to a
    15     penalty not to exceed $1,000.
    16         (4)  This subsection is subject to 2 Pa.C.S. Ch. 5 Subch.
    17     B (relating to practice and procedure of local agencies) and
    18     Ch. 7 Subch. B (relating to judicial review of local agency
    19     action).
    20         (5)  The penalties collected under this subsection shall
    21     be retained by the county board of health initiating the
    22     enforcement action.
    23     (e)  Criminal penalties.--
    24         (1)  A person that violates this act commits a summary
    25     offense and shall, upon conviction, be sentenced to pay a
    26     fine of not more than $250.
    27         (2)  A person that violates this act within one year of
    28     being sentenced under paragraph (1) commits a summary offense
    29     and shall, upon conviction, be sentenced to pay a fine of not
    30     more than $500.
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     1         (3)  A person that violates this act within one year of
     2     being sentenced under paragraph (2) commits a summary offense
     3     and shall, upon conviction, be sentenced to pay a fine of not
     4     more than $1,000.
     5         (4)  The following apply to actions by law enforcement
     6     officers:
     7             (i)  Except as set forth in subparagraph (ii), the
     8         penalties collected under this subsection shall be
     9         retained by the municipality in which the law enforcement
    10         agency initiating the enforcement action is located.
    11             (ii)  If an enforcement action is initiated by the
    12         Pennsylvania State Police, the Pennsylvania State Police
    13         shall retain the penalties collected under this
    14         subsection.
    15  Section 7.  Retaliation prohibited.
    16     A person may not discharge an employee, refuse to hire an
    17  applicant for employment or retaliate against an employee
    18  because the individual exercises a right to a smoke-free
    19  environment required under this act.
    20  Section 8.  Annual reports.
    21     (a)  Requirement.--The department shall file an annual report
    22  by December 1 with the chairman and minority chairman of the
    23  Public Health and Welfare Committee of the Senate and the
    24  chairman and minority chairman of the Health and Human Services
    25  Committee of the House of Representatives.
    26     (b)  Contents.--The report shall include:
    27         (1)  The number of violations of this act by county as
    28     reported to the department.
    29         (2)  The number of enforcement actions initiated under
    30     this act by the department, by another State licensing agency
    20070S0246B2099                 - 15 -     

     1     or by a county board of health.
     2         (3)  A description of the enforcement activities of the
     3     department. This paragraph includes the number of personnel
     4     assigned to enforce this act, enforcement strategies
     5     undertaken by the department or a licensing agency and other
     6     information relating to the administration and implementation
     7     of this act.
     8  Section 9.  Public education.
     9     The department shall design and implement a program,
    10  including the establishment of an Internet website, to educate
    11  the public regarding the provisions of this act. The department
    12  shall inform persons who own or operate a public place of the
    13  requirements of this act.
    14  Section 10.  Administration.
    15     (a)  Regulations.--The department shall promulgate
    16  regulations to implement this act.
    17     (b)  Revision of forms.--The Department of Revenue may revise
    18  the form for reporting sales tax revenue to require separate
    19  reporting of sales of alcohol and tobacco for purposes of
    20  claiming exemptions under this act.
    21  Section 11.  Preemption of local ordinances.
    22     (a)  General rule.--Except as set forth in subsection (b),
    23  the following apply:
    24         (1)  This act shall supersede any ordinance, resolution
    25     or regulation adopted by a political subdivision concerning
    26     smoking in a public place.
    27         (2)  No political subdivision shall have the authority to
    28     adopt or enforce any ordinance, regulation or resolution
    29     which is in conflict with this act.
    30     (b)  Exception.--Subsection (a) shall not apply to a city of
    20070S0246B2099                 - 16 -     

     1  the first class. A city of the first class may not change or
     2  amend its ordinance to conflict with any provision of this act.
     3  Section 29.  Repeal.
     4     (a)  Intent.--The General Assembly declares that the repeal
     5  under subsection (b) is necessary to effectuate this act.
     6     (b)  Provision.--Section 10.1 of the act of April 27, 1927
     7  (P.L.465, No.299), referred to as the Fire and Panic Act, is
     8  repealed.
     9  Section 30.  Effective date.
    10     This act shall take effect in 90 days.














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