S0246B1286A02970 VDL:CMM 07/10/07 #90 A02970
AMENDMENTS TO SENATE BILL NO. 246
Sponsor: REPRESENTATIVE EACHUS
Printer's No. 1286
1 Amend Title, page 1, line 5, by striking out all of said line
2 and inserting
3 Prohibiting
4 Amend Title, page 1, line 6, by striking out "ENCLOSED AND
5 SUBSTANTIALLY ENCLOSED AREAS" and inserting
6 certain public places
7 Amend Title, page 1, line 8, by inserting after "PENALTIES;"
8 preempting local regulation;
9 Amend Sec. 2, page 10, line 27, by striking out "DEPARTMENT
10 OF"
11 Amend Sec. 2, page 10, line 27, by inserting after
12 "PROTECTION"
13 Agency
14 Amend Sec. 2, page 10, line 30, by striking out ", SUCH AS
15 ASBESTOS, BENZENE, FORMALDEHYDE AND RADON"
16 Amend Sec. 2, page 11, line 18, by striking out "THE" where
17 it appears the first time and inserting
18 By enactment of this legislation, the
19 Amend Sec. 3, page 11, lines 25 through 30; page 12, lines 1
20 through 6, by striking out all of said lines on said pages and
21 inserting
22 "Adult-only establishment." A public or private place in
23 which the proprietor or the proprietor's agent or employee
1 restricts access and refuses service or accommodation of any
2 kind to individuals under 18 years of age.
3 "Cigar bar." An adult-only establishment which operates
4 pursuant to an eating place or restaurant liquor license under
5 the act of April 12, 1951 (P.L.90, No.21), known as the Liquor
6 Code, that is physically connected and directly adjacent to a
7 tobacco shop.
8 "Conduct of gaming." The licensed placement and operation of
9 games of chance under 4 Pa.C.S. Pt. II (relating to gaming) and
10 approved by the Pennsylvania Gaming Control Board at a licensed
11 facility.
12 Amend Sec. 3, page 12, lines 8 through 10, by striking out
13 all of said lines and inserting
14 "Drinking establishment." A public place which:
15 (1) is licensed to sell alcoholic or malt or brewed
16 beverages for on-premises consumption under the provisions of
17 the Liquor Code; and
18 (2) has total annual sales of food sold for on-premises
19 consumption of less than or equal to 20% of the combined
20 gross revenues of the establishment.
21 Amend Sec. 3, page 12, lines 27 through 30; page 13, lines 1
22 through 6, by striking out all of said lines on said pages and
23 inserting
24 "Licensed facility." As defined in 4 Pa.C.S. § 1103
25 (relating to definitions).
26 "Licensed gaming entity." A person that holds a license to
27 engage in the conduct of gaming pursuant to 4 Pa.C.S. Pt. II
28 (relating to gaming).
29 "Private club." An organization which is any of the
30 following:
31 (1) A reputable group of individuals associated together
32 as a not-for-profit organization for legitimate purposes of
33 mutual benefit, entertainment, fellowship or lawful
34 convenience that:
35 (i) regularly and exclusively occupies, as owner or
36 lessee, a clubhouse or quarters for the use of its
37 members;
38 (ii) holds regular meetings;
39 (iii) conducts its business through officers
40 regularly elected;
41 (iv) admits members by written application,
42 investigation and ballot; and
43 (v) charges and collects dues from elected members.
44 (2) A volunteer ambulance service.
45 (3) A volunteer fire company.
46 (4) A volunteer rescue company.
47 "Public meeting." A meeting open to the public including any
48 meeting open to the public under 65 Pa.C.S. Ch.7 (relating to
49 open meetings).
50 "Public place." An enclosed area to which the public is
51 invited or in which the public is permitted. The term includes,
52 without limitation:
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1 (1) A place in which a public meeting is held.
2 (2) A school facility.
3 (3) A government housing facility.
4 (4) A health facility.
5 (5) An auditorium.
6 (6) An arena.
7 (7) A theater.
8 (8) A museum.
9 (9) A restaurant.
10 (10) A bar.
11 (11) A concert hall.
12 (12) A commercial establishment.
13 (13) A retail store.
14 (14) A service line.
15 (15) A grocery store.
16 (16) A zoo.
17 (17) A waiting room or area.
18 (18) A hallway.
19 (19) A polling place.
20 (20) A restroom.
21 (21) A sports arena.
22 (22) A convention hall.
23 (23) An elevator.
24 (24) Public transit.
25 (25) A public food assistance program and facility.
26 (26) A shopping mall.
27 (27) An exhibition hall.
28 (28) A rotunda or lobby.
29 (29) A means of transportation, including, but not
30 limited to, a subway, bus, train, taxicab and limousine.
31 (30) At least 75% of the total number of sleeping
32 quarters that are available for rent to guests within any
33 single lodging establishment.
34 (31) A ticketing, boarding or waiting area in a public
35 transportation terminal. This paragraph includes, but is not
36 limited to, an underground subway station, a train station
37 and a bus station.
38 (32) Private colleges, universities and other
39 educational vocational institutions.
40 (33) A public or private facility which houses or treats
41 children and youth in State or county custody. This paragraph
42 includes, but is not limited to, youth detention centers and
43 group homes.
44 (34) A workplace.
45 "Restaurant." An area devoted to the sale or service of
46 food.
47 Amend Sec. 3, page 13, line 7, by striking out "GROUNDS" and
48 inserting
49 facility
50 Amend Sec. 3, page 13, line 7, by inserting after "WITHIN"
51 the legally defined boundaries of
52 Amend Sec. 3, page 13, line 9, by striking out "SCHOOL'S
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1 LEGALLY DEFINED PROPERTY BOUNDARIES" and inserting
2 school
3 Amend Sec. 3, page 13, by inserting between lines 10 and 11
4 "Service line." A line at which one or more individuals are
5 waiting for or receiving service of any kind, whether or not
6 such service involves the exchange of money.
7 Amend Sec. 3, page 13, lines 11 through 20, by striking out
8 all of said lines and inserting
9 "Smoke." To engage in the act of smoking.
10 "Smoking." The burning of a lighted cigar, cigarette, pipe
11 or any other matter or substance that contains tobacco.
12 "Sports arena." Any sports stadium, sports pavilion,
13 exhibition hall, gymnasium, heath spa, boxing arena, swimming
14 pool, roller or ice rink, bowling alley or similar place where
15 members of the general public assemble to engage in physical
16 exercise, participate in athletic competition or witness sports
17 events.
18 "Tobacco shop." A business establishment the main purpose of
19 which is the sale of tobacco products, including cigars, pipe
20 tobacco and smoking accessories.
21 "Volunteer ambulance service." As defined in section 102 of
22 the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
23 Fire Company and Volunteer Ambulance Service Grant Act.
24 "Volunteer fire company." As defined in section 102 of the
25 act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
26 Fire Company and Volunteer Ambulance Service Grant Act.
27 "Volunteer rescue company." As defined in section 102 act of
28 July 31, 2003 (P.L.73, No.17), known as the Volunteer Fire
29 Company and Volunteer Ambulance Service Grant Act.
30 "Workplace." An area serving as a place of employment,
31 occupation, business, trade, craft, professional or volunteer
32 activity. The team includes an employer-owned vehicle.
33 Amend Sec. 4, page 13, line 21, by striking out "SMOKING
34 RESTRICTIONS" and inserting
35 Prohibition
36 Amend Sec. 4, page 13, lines 22 through 30; page 14, lines 1
37 through 30; page 15, lines 1 through 6, by striking out all of
38 said lines on said pages and inserting
39 (a) Unlawful acts.--Except as set forth in section 5, the
40 following apply:
41 (1) An individual may not smoke in a public place.
42 (2) It is unlawful for an employer or a person that
43 owns, manages, operates or otherwise controls the use of an
44 area in which smoking is prohibited or restricted under this
45 act to fail to comply with the provisions of this act.
46 Amend Sec. 4, page 15, by inserting between lines 12 and 13
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1 (c) Affirmative defense.--
2 (1) Any of the following constitutes an affirmative
3 defense to an action under subsection (a)(2):
4 (i) During the relevant time period actual control
5 of the area was not exercised by the person alleged to
6 have violated subsection (a)(2).
7 (ii) The person alleged to have violated subsection
8 (a)(2) has made a good faith effort to ensure compliance
9 with this act.
10 (2) To establish an affirmative defense under this
11 subsection, the following apply:
12 (i) The person alleged to have violated subsection
13 (a)(2), the employer or other person who controls the
14 area must submit an affidavit and may submit any other
15 relevant proof indicating that the person did not
16 exercise actual control of the area during the relevant
17 time period or that the person made a good faith effort
18 to ensure compliance with this act, whichever is
19 applicable.
20 (ii) The affidavit and other proof must be sent by
21 certified mail to the department, a local board or local
22 department of health or a designated enforcement officer.
23 Amend Bill, page 15, lines 13 through 30; page 16, lines 1
24 through 30; page 17, lines 1 through 27, by striking out all of
25 said lines on said pages and inserting
26 Section 5. Exceptions.
27 Section 4 shall not apply to any of the following:
28 (1) A private residence, except when used as a child-
29 care, adult day care or health care facility.
30 (2) Designated sleeping quarters within a lodging
31 establishment that are available for rent to guests
32 accounting for no more than 25% of the total number of
33 lodging units within a single lodging establishment.
34 (3) A wholesale or retail tobacco shop which has sales
35 of tobacco products and accessories, including but not
36 limited to, branded apparel, humidors and other tobacco
37 related accessories, comprising 85% or more of gross sales on
38 an annual basis.
39 (4) A workplace of:
40 (i) any manufacturer, importer or wholesaler of
41 tobacco products; or
42 (ii) a tobacco leaf dealer or processor.
43 (5) A tobacco storage facility.
44 (6) A drinking establishment.
45 (7) A cigar bar.
46 (8) The physical gaming area of a licensed facility.
47 (9) A private club, except if the club is open to the
48 public through general advertisement for a club-sponsored
49 event.
50 (10) A place where a fundraiser is conducted by a
51 nonprofit and charitable organization one time per year if:
52 (i) the place is separate from other public areas
53 during the event;
54 (ii) food and beverages are available to attendees;
55 (iii) individuals under 18 years of age are not
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1 permitted to attend; and
2 (iv) cigars are sold, auctioned or given as gifts
3 and cigars are a feature of the event.
4 (11) An exhibition hall, conference room or similar
5 facility if all of the following apply:
6 (i) The hall, room or facility is used exclusively
7 for an event to which the public is invited for the
8 primary purpose of promoting and sampling tobacco
9 products and service of food and drink is incidental.
10 (ii) The sponsor or organizer gives notice in all
11 advertisements and other promotional materials that
12 smoking will not be restricted. Notice under this
13 subparagraph must be prominently posted at the entrance
14 to the hall, room or facility.
15 (iii) At least 75% of all products displayed or
16 distributed at the event are tobacco or tobacco-related
17 products.
18 (iv) No retailer, manufacturer or distributor of
19 tobacco conducts more than 12 days of a promotional event
20 under this paragraph in any calendar year.
21 (12) The conduct of a small game of chance on premises
22 which qualify as an adult-only establishment during the
23 conduct of the game by a nonprofit group licensed under the
24 act of July 10, 1981 (P.L.214, No.67), known as the Bingo
25 Law, or the act of December 19, 1988 (P.L.1262, No.156),
26 known as the Local Option Small Games of Chance Act.
27 Section 6. Enforcement.
28 (a) Civil penalties.--If an enforcement officer determines
29 that a violation of section 4 has occurred, the enforcement
30 officer may impose a civil penalty of $250 for the first
31 offense, $500 for the second offense and $1,000 for each
32 subsequent offense. Civil penalties collected shall go to the
33 county board of health or, in a county which does not have a
34 board of health, the department, to be used to enforce this act.
35 (b) Action.--An enforcement officer may bring an action to
36 recover the civil penalty under subsection (a) in a court of
37 competent jurisdiction. A civil penalty recovered under the
38 provisions of this section shall be recovered by and in the name
39 of the enforcement officer.
40 (c) Injunction.--An enforcement officer may seek enforcement
41 of this act by instituting an action in a court of competent
42 jurisdiction to enjoin a violation of this act and may recover
43 costs and attorney fees associated with the action.
44 Amend Sec. 5, page 17, line 28, by striking out "5" and
45 inserting
46 7
47 Amend Bill, page 18, by inserting between lines 2 and 3
48 Section 8. Annual reports.
49 The department shall file an annual report by December 1 with
50 the chairman and minority chairman of the Public Health and
51 Welfare Committee of the Senate and the chairman and minority
52 chairman of the Health and Human Services Committee of the House
53 of Representatives. The report shall include:
54 (1) Number of violations of this act by county.
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1 (2) Number of enforcement actions initiated under this
2 act within each county.
3 (3) A description of the enforcement activities of the
4 department. This paragraph includes the number of personnel,
5 enforcement strategies and other issues relating to the
6 administration and implementation of this act.
7 Amend Sec. 6, page 18, line 3, by striking out "6" and
8 inserting
9 9
10 Amend Sec. 7, page 18, line 14, by striking out "7" and
11 inserting
12 10
13 Amend Bill, page 18, lines 20 through 23, by striking out all
14 of said lines and inserting
15 Section 11. Preemption of local ordinances.
16 (a) General rule.--Except as set forth in subsection (b),
17 the provisions of this act shall supersede any ordinance or rule
18 or regulation adopted by a political subdivision concerning
19 smoking in an indoor public place.
20 (b) Exception.--Subsection (a) does not apply to a local
21 ordinance, rule or regulation of a city of the first class
22 concerning smoking in an indoor public place other than the
23 physical gaming area of a licensed facility.
24 Section 29. Repeal.
25 Repeals are as follows:
26 (1) The General Assembly declares that the repeal under
27 paragraph (2) is necessary to effectuate the purpose of this
28 act.
29 (2) Section 10.1 of the act of April 27, 1927 (P.L.465,
30 No.299), referred to as the Fire and Panic Act, is repealed.
31 Amend Sec. 9, page 18, line 24, by striking out "9" and
32 inserting
33 30
34 Amend Sec. 9, page 18, line 25, by striking out "90" and
35 inserting
36 180
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