HOUSE AMENDED
PRIOR PRINTER'S NOS. 25, 1227 PRINTER'S NO. 1286
No. 246 Session of 2007
INTRODUCED BY GREENLEAF, ERICKSON, O'PAKE, CORMAN, WASHINGTON,
C. WILLIAMS, LOGAN, ORIE, STACK, FERLO AND DINNIMAN,
JANUARY 29, 2007
AS REPORTED FROM COMMITTEE ON HEALTH AND HUMAN SERVICES, HOUSE
OF REPRESENTATIVES, AS AMENDED, JULY 8, 2007
AN ACT
1 Prohibiting smoking in certain public places and workplaces; <--
2 imposing duties upon the Department of Health; imposing
3 penalties; preempting local regulations; and repealing a
4 related provision of the Fire and Panic Act.
5 ESTABLISHING THE SMOKE FREE PENNSYLVANIA ACT; PROHIBITING <--
6 SMOKING IN ENCLOSED AND SUBSTANTIALLY ENCLOSED AREAS;
7 IMPOSING DUTIES UPON THE DEPARTMENT OF HEALTH; IMPOSING
8 PENALTIES; AND MAKING A RELATED REPEAL.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Short title. <--
12 This act shall be known and may be cited as the Clean Indoor
13 Air Act.
14 Section 2. Legislative findings and purpose.
15 (a) Findings.--The General Assembly finds as follows:
16 (1) The use of tobacco products is dangerous not only to
17 the person smoking, but also to nonsmokers who must breathe
18 the contaminated air.
19 (2) The Environmental Protection Agency has classified
1 second-hand tobacco smoke as a Class A carcinogen, a
2 classification reserved for the most lethal environmental
3 hazards.
4 (3) Approximately 53,000 nonsmokers in the United States
5 die annually from lung and heart disease due to exposure to
6 passive smoke.
7 (4) Three hundred thousand children exposed to tobacco
8 smoke have increased frequency of lower respiratory
9 infections, such as pneumonia and bronchitis.
10 (5) Tobacco smoke is also responsible for up to
11 1,000,000 attacks of asthma, 8,000 to 26,000 new cases of
12 asthma and significant reduction in lung function, and causes
13 serious middle ear infections among children each year.
14 (b) Purpose.--By enactment of this legislation, the General
15 Assembly intends to protect the public health, the comfort of
16 all persons and the environment by prohibiting smoking in public
17 places and workplaces.
18 Section 3. Definitions.
19 The following words and phrases when used in this act shall
20 have the meanings given to them in this section unless the
21 context clearly indicates otherwise:
22 "Cigar bar." An establishment which operates pursuant to an
23 eating place or restaurant liquor license under the act of April
24 12, 1951 (P.L.90, No.21), known as the Liquor Code, that is
25 physically connected and directly adjacent to a tobacco shop.
26 "Department." The Department of Health of the Commonwealth.
27 "Drinking establishment." An establishment which operates
28 pursuant to an eating place, restaurant license or retail
29 dispenser license under the act of April 12, 1951 (P.L.90,
30 No.21), known as the Liquor Code, has total annual sales of food
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1 sold for on-premises consumption of less than or equal to 20% of
2 the combined gross sales of the establishment.
3 "Gaming floor." Any portion of a licensed gaming facility
4 where slot machines have been installed for use or play as
5 approved by the Pennsylvania Gaming Control Board. The area
6 shall not include nongaming floor associated areas adjacent to
7 the gaming floor, including hallways, reception areas, retail
8 space, bars, nightclubs, restaurants, hotels, entertainment
9 venues or office spaces.
10 "Private club." An organization which is any of the
11 following:
12 (1) A reputable group of individuals associated together
13 as a not-for-profit organization for legitimate purposes of
14 mutual benefit, entertainment, fellowship or lawful
15 convenience that:
16 (i) regularly and exclusively occupies, as owner or
17 lessee, a clubhouse or quarters for the use of its
18 members;
19 (ii) holds regular meetings, conducts its business
20 through officers regularly elected, admits members by
21 written application, investigation and ballot and charges
22 and collects dues from elected members; and
23 (iii) has been in continuous existence for a period
24 of ten years.
25 (2) A volunteer ambulance service.
26 (3) A volunteer fire company.
27 (4) A volunteer rescue company.
28 "Public meeting." A meeting open to the public including any
29 meeting open to the public pursuant to 65 Pa.C.S. Ch. 7
30 (relating to open meetings).
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1 "Public place." An enclosed area to which the public is
2 invited or in which the public is permitted, including any place
3 listed in section 5.
4 "Restaurant." An eating establishment that offers food for
5 sale to the public.
6 "Service line." A line at which one or more persons are
7 waiting for or receiving service of any kind, whether or not
8 such service involves the exchange of money.
9 "Smoking." The carrying by a person of a lighted cigar,
10 cigarette, pipe or other lighted smoking device.
11 "Sports arena." A sports stadium, sports pavilion,
12 exhibition hall, gymnasium, health spa, boxing arena, swimming
13 pool, roller or ice rink, bowling alley or similar place where
14 members of the general public assemble to engage in physical
15 exercise, participate in athletic competition or witness sports
16 events.
17 "Tobacco shop." A business establishment the main purpose of
18 which is the sale of tobacco products including cigars, pipe
19 tobacco and smoking accessories.
20 "Volunteer ambulance service." As defined in section 102 of
21 the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
22 Fire Company and Volunteer Ambulance Service Grant Act.
23 "Volunteer fire company." As defined in section 102 of the
24 act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
25 Fire Company and Volunteer Ambulance Service Grant Act.
26 "Volunteer rescue company." As defined in section 102 of the
27 act of July 31, 2003 (P.L.73, No.17), known as the Volunteer
28 Fire Company and Volunteer Ambulance Service Grant Act.
29 "Workplace." An indoor area serving as a place of
30 employment, occupation, business, trade, craft, profession or
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1 volunteer activity.
2 Section 4. Prohibition.
3 No person shall smoke in a public place or in a workplace.
4 Section 5. Public place.
5 The following enclosed areas are examples of public places:
6 (1) A place in which a public meeting is held.
7 (2) An educational facility.
8 (3) A school bus.
9 (4) A health facility.
10 (5) An auditorium.
11 (6) An arena.
12 (7) A theater.
13 (8) A museum.
14 (9) A restaurant.
15 (10) A bar or tavern.
16 (11) A concert hall.
17 (12) A commercial establishment.
18 (13) A retail store.
19 (14) A service line.
20 (15) A grocery store.
21 (16) A bingo hall.
22 (17) A waiting room or area.
23 (18) A hallway.
24 (19) A polling place.
25 (20) A restroom.
26 (21) A sports arena.
27 (22) A convention hall.
28 (23) An elevator.
29 (24) Public transit.
30 (25) A public food assistance program and facility.
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1 (26) A shopping mall.
2 (27) An exhibition hall.
3 (28) A rotunda or lobby.
4 (29) A licensed gaming facility.
5 (30) At least 75% of the total number of sleeping
6 quarters that are available for rent to guests within any
7 single lodging establishment.
8 Section 6. Exception.
9 (a) General rule.--Subject to subsection (b), this act shall
10 not apply to the following places:
11 (1) A private residence, except when used as a child
12 day-care center or group or family day-care home subject to
13 licensure, registration or certification by the Department of
14 Public Welfare.
15 (2) Designated sleeping quarters within a lodging
16 establishment that are available for rent to guests
17 accounting for no more than 25% of the total number of
18 lodging units within a single lodging establishment.
19 (3) A wholesale or retail tobacco shop whose sales of
20 tobacco products comprise 85% or more of gross sales on an
21 annual basis.
22 (4) All workplaces of any manufacturer, importer or
23 wholesaler of tobacco products, of any tobacco leaf dealer or
24 processor, and all tobacco storage facilities.
25 (5) The following residential facilities:
26 (i) A long-term care facility regulated under 42 CFR
27 483.15 (relating to quality of life) or similar
28 regulation. This exception shall not apply if 42 CFR
29 483.15, or similar regulation, is repealed or expires.
30 (ii) Separate enclosed rooms or designated smoking
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1 rooms in a residential adult care facility, community
2 mental health care facility, drug and alcohol facility or
3 an adult care facility or other residential health care
4 facility not covered under subparagraph (i).
5 (iii) Designated smoking rooms in a facility that
6 provides day treatment programs.
7 (6) A cigar bar.
8 (7) Up to 25% of a gaming floor within a licensed gaming
9 facility.
10 (8) A private club, except where the club is:
11 (i) open to the public through general advertisement
12 for a club-sponsored event; or
13 (ii) is leased or used for a private event that is
14 not club-sponsored.
15 (9) A drinking establishment.
16 (10) A place where a fundraiser is conducted by a
17 nonprofit and charitable organization one time per year if:
18 (i) The place is separate from other public areas
19 during the event.
20 (ii) Food and beverages are available to the
21 attendees.
22 (iii) Individuals under 18 years of age are not
23 permitted to attend.
24 (iv) Cigars are sold, auctioned or given as gifts
25 and cigars are a feature of the event.
26 (11) An exhibition hall, conference room or similar
27 facility used exclusively for an event to which the public is
28 invited for the primary purpose of promoting and sampling
29 tobacco products, and where the service of food and drink is
30 incidental, if the sponsor or organizer gives notice in all
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1 advertisements and other promotional materials give notice
2 that smoking will not be restricted. At least 75% of all
3 products displayed or distributed at the event shall be
4 tobacco or tobacco-related products. Notice that smoking will
5 not be restricted must be prominently posted at the entrance
6 to the facility. No retailer, manufacturer or distributor of
7 tobacco may conduct more than six days of a promotional event
8 under this paragraph in any calendar year.
9 (b) Notice.--To qualify for exemption under subsection (a),
10 the owner or lessee of the place must conspicuously post at
11 every public entrance to the place a sign stating that smoking
12 is permitted on the premises.
13 Section 7. Retaliation prohibited.
14 No person or employer shall discharge, refuse to hire or in
15 any manner retaliate against any employee or applicant for
16 employment because the employee or applicant exercises any right
17 to a smoke-free environment required by this act.
18 Section 8. Enforcement.
19 The Department of Health, a local board or department of
20 health or any affected party may institute an action in any
21 court with jurisdiction to enjoin a violation of the provisions
22 of this act.
23 Section 9. Penalty.
24 Any person who smokes in a public place or in a workplace or
25 violates any other provision of this act commits a summary
26 offense and shall pay:
27 (1) A fine not exceeding $250 for a first violation.
28 (2) A fine not exceeding $500 for a second violation
29 that occurs within one year.
30 (3) A fine not exceeding $1,000 for each additional
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1 violation that occurs within one year.
2 Section 10. Annual reports.
3 The department shall file an annual report by December 1 of
4 each year with the chairman and minority chairman of the Public
5 Health and Welfare Committee of the Senate and the chairman and
6 minority chairman of the Health and Human Services Committee of
7 the House of Representatives. The report shall include the
8 number of violations of this act by county, the number of
9 enforcement actions initiated under this act within each county,
10 a description of the enforcement activities of the department,
11 including the number of personnel, enforcement strategies and
12 other issues relating to the administration and implementation
13 of this act.
14 Section 11. Rules and regulations.
15 The Department of Health shall promulgate and adopt, within
16 180 days of the effective date of this section, rules and
17 regulations as are necessary and reasonable to implement the
18 provisions of this act. The department shall also engage in a
19 continuing program to explain and clarify the purposes and
20 requirements of this act to persons affected by it and to guide
21 owners, operators and managers in their compliance with it. The
22 programs may include publication of a brochure for affected
23 businesses and individuals explaining the provisions of this
24 act.
25 Section 12. Construction.
26 In any dispute arising under the provisions of this act, the
27 authority adjudicating the dispute shall construe the provisions
28 of this act in favor of the health concerns of persons who do
29 not engage in smoking and whose concerns shall represent the
30 public interest.
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1 Section 13. Preemption of local ordinances.
2 The provisions of this act shall supersede any ordinance or
3 rule or regulation adopted by a political subdivision concerning
4 smoking in an indoor public place or workplace. No political
5 subdivision shall have the authority to adopt or enforce any
6 rule or ordinance which is more restrictive than the standards
7 set forth in this act.
8 Section 14. Repeal.
9 Repeals are as follows:
10 (1) The General Assembly declares that the repeal under
11 paragraph (2) is necessary to effectuate this act.
12 (2) Section 10.1 of the act of April 27, 1927 (P.L.465,
13 No.299), referred to as the Fire and Panic Act, is repealed.
14 Section 15. Effective date.
15 This act shall take effect as follows:
16 (1) Section 10 shall take effect immediately.
17 (2) The remainder of this act shall take effect in 180
18 days.
19 SECTION 1. SHORT TITLE. <--
20 THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE SMOKE FREE
21 PENNSYLVANIA ACT.
22 SECTION 2. LEGISLATIVE FINDINGS AND PURPOSE.
23 (A) FINDINGS.--THE GENERAL ASSEMBLY FINDS AS FOLLOWS:
24 (1) THE USE OF TOBACCO PRODUCTS IS DANGEROUS NOT ONLY TO
25 THE PERSON SMOKING, BUT ALSO TO NONSMOKERS WHO MUST BREATH
26 THE CONTAMINATED AIR.
27 (2) THE DEPARTMENT OF ENVIRONMENTAL PROTECTION HAS
28 CLASSIFIED SECONDHAND TOBACCO SMOKE AS A CLASS A CARCINOGEN,
29 A CLASSIFICATION RESERVED FOR THE MOST LETHAL ENVIRONMENTAL
30 HAZARDS, SUCH AS ASBESTOS, BENZENE, FORMALDEHYDE AND RADON.
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1 (3) APPROXIMATELY 53,000 NONSMOKERS IN THE UNITED STATES
2 DIE ANNUALLY FROM LUNG AND HEART DISEASE DUE TO EXPOSURE TO
3 PASSIVE SMOKE.
4 (4) THREE HUNDRED THOUSAND CHILDREN EXPOSED TO TOBACCO
5 SMOKE HAVE INCREASED FREQUENCY OF LOWER RESPIRATORY
6 INFECTIONS, SUCH AS PNEUMONIA AND BRONCHITIS.
7 (5) SECOND HAND SMOKE EXPOSURE HAS BEEN LINKED TO SUDDEN
8 INFANT DEATH SYNDROME.
9 (6) TOBACCO SMOKE IS ALSO RESPONSIBLE FOR UP TO
10 1,000,000 ATTACKS OF ASTHMA, 8,000 TO 26,000 NEW CASES OF
11 ASTHMA AND SIGNIFICANT REDUCTION IN LUNG FUNCTION AND CAUSES
12 SERIOUS MIDDLE EAR INFECTIONS AMONG CHILDREN EACH YEAR.
13 (7) IN A COMPREHENSIVE REPORT RELEASED BY THE OFFICE OF
14 THE SURGEON GENERAL IN JUNE 2006, THERE IS NO RISK-FREE LEVEL
15 OF EXPOSURE TO SECONDHAND SMOKE. NONSMOKERS EXPOSED TO
16 SECONDHAND SMOKE FACE UP TO A 30% RISK OF DEVELOPING HEART
17 DISEASE AND LUNG CANCER.
18 (B) PURPOSE.--THE GENERAL ASSEMBLY INTENDS TO PROTECT THE
19 PUBLIC HEALTH, THE COMFORT OF ALL PERSONS AND THE ENVIRONMENT BY
20 PROHIBITING SMOKING IN PUBLIC PLACES AND WORKPLACES.
21 SECTION 3. DEFINITIONS.
22 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL
23 HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
24 CONTEXT CLEARLY INDICATES OTHERWISE:
25 "BAR." ANY AREA, ENCLOSED OR SUBSTANTIALLY ENCLOSED, DEVOTED
26 TO THE SALE AND SERVICE OF ALCOHOLIC BEVERAGES FOR ON-PREMISES
27 CONSUMPTION AND WHERE THE SERVICE OF FOOD IS ONLY INCIDENTAL TO
28 THE CONSUMPTION OF SUCH BEVERAGES.
29 "CIGAR BAR." ANY AREA, ENCLOSED OR SUBSTANTIALLY ENCLOSED,
30 DEVOTED TO THE SALE AND SERVICE OF TOBACCO PRODUCTS AND
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1 ACCESSORIES AND THE RENTAL OF ONSITE HUMIDORS FOR ON-PREMISES
2 CONSUMPTION WHERE THE SERVICE OF FOOD AND ALCOHOLIC BEVERAGES
3 GENERATED 25% OR LESS OF ITS ANNUAL GROSS INCOME IN THE CALENDAR
4 YEAR ENDING DECEMBER 31, 2005, AND, ON AN ONGOING BASIS, THE
5 CALENDAR YEAR PRECEDING AN ESTABLISHMENT'S CLAIM OF BEING A
6 CIGAR BAR.
7 "DEPARTMENT." THE DEPARTMENT OF HEALTH OF THE COMMONWEALTH.
8 "ENCLOSED." HAVING A CEILING OR ROOF, EXCEPT FOR DOORS,
9 WINDOWS OR PASSAGEWAYS, WHOLLY ENCLOSED EITHER ON A PERMANENT OR
10 TEMPORARY BASIS.
11 "ENFORCEMENT OFFICER." THE BOARD OF HEALTH OF A COUNTY OR IN
12 A COUNTY THAT DOES NOT HAVE A BOARD OF HEALTH, THE DEPARTMENT.
13 "GOVERNMENT HOUSING FACILITY." GOVERNMENT-OWNED, MULTIPLE-
14 UNIT RESIDENTIAL FACILITIES.
15 "HEALTH CARE FACILITY." ANY HEALTH CARE FACILITY PROVIDING
16 CLINICALLY RELATED HEALTH SERVICES, INCLUDING, BUT NOT LIMITED
17 TO, A GENERAL OR SPECIAL HOSPITAL, INCLUDING PSYCHIATRIC
18 HOSPITALS, REHABILITATION HOSPITALS, AMBULATORY SURGICAL
19 FACILITIES, LONG-TERM CARE NURSING FACILITIES, CANCER TREATMENT
20 CENTERS USING RADIATION THERAPY OR SPECIAL HOSPITAL, INCLUDING
21 PSYCHIATRIC HOSPITALS, REHABILITATION HOSPITALS, AMBULATORY
22 SURGICAL FACILITIES, LONG-TERM CARE NURSING FACILITIES, CANCER
23 TREATMENT CENTERS USING RADIATION THERAPY ON AN AMBULATORY BASIS
24 AND INPATIENT DRUG AND ALCOHOL TREATMENT FACILITIES, BOTH PROFIT
25 AND NONPROFIT AND INCLUDING THOSE OPERATED BY AN AGENCY OR STATE
26 OR LOCAL GOVERNMENT. THE TERM SHALL ALSO INCLUDE A HOSPICE.
27 "RESTAURANT." ANY AREA, ENCLOSED OR SUBSTANTIALLY ENCLOSED,
28 DEVOTED TO THE SALE OR SERVICE OF FOOD.
29 "RETAIL TOBACCO BUSINESS." A SOLE PROPRIETORSHIP, LIMITED
30 LIABILITY COMPANY, CORPORATION, PARTNERSHIP OR OTHER ENTERPRISE
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1 IN WHICH THE PRIMARY ACTIVITY IS THE RETAIL SALE OF TOBACCO
2 PRODUCTS AND ACCESSORIES WHERE THE SALE OF GOODS GENERATED 25%
3 OR LESS OF ITS ANNUAL GROSS INCOME IN THE CALENDAR YEAR ENDING
4 DECEMBER 31, 2005, AND, ON AN ONGOING BASIS, THE CALENDAR YEAR
5 PRECEDING AN ESTABLISHMENT'S CLAIM OF BEING A RETAIL TOBACCO
6 BUSINESS.
7 "SCHOOL GROUNDS." A BUILDING OR STRUCTURE LOCATED WITHIN A
8 PUBLIC OR PRIVATE PRESCHOOL, NURSERY SCHOOL, ELEMENTARY OR
9 SECONDARY SCHOOL'S LEGALLY DEFINED PROPERTY BOUNDARIES AND ANY
10 VEHICLES USED TO TRANSPORT CHILDREN OR SCHOOL PERSONNEL.
11 "SMOKING." THE BURNING OF A LIGHTED CIGAR, CIGARETTE, PIPE
12 OR ANY OTHER MATTER OR SUBSTANCE WHICH CONTAINS TOBACCO.
13 "SUBSTANTIALLY ENCLOSED." HAVING A CEILING OR ROOF, WITH AN
14 OPENING IN THE WALLS CONSTITUTING LESS THAN HALF THE TOTAL AREA
15 OF THE WALLS. THE AREA OF THE OPENING DOES NOT INCLUDE DOORS,
16 WINDOWS OR OTHER FITTINGS OPENED OR SHUT.
17 "WORKPLACE." AN ENCLOSED OR SUBSTANTIALLY ENCLOSED AREA
18 SERVING AS A PLACE OF EMPLOYMENT, OCCUPATION, BUSINESS, TRADE,
19 CRAFT, PROFESSION OR VOLUNTEER ACTIVITY, INCLUDING EMPLOYER-
20 OWNED VEHICLES WITH MORE THAN ONE OCCUPANT.
21 SECTION 4. SMOKING RESTRICTIONS.
22 (A) RESTRICTIONS.--SMOKING SHALL NOT BE PERMITTED AND NO
23 INDIVIDUAL SHALL SMOKE IN ANY OF THE FOLLOWING AREAS IF THEY ARE
24 ENCLOSED OR SUBSTANTIALLY ENCLOSED AREAS:
25 (1) WORKPLACES.
26 (2) BARS.
27 (3) RESTAURANTS.
28 (4) ENCLOSED OR SUBSTANTIALLY ENCLOSED AREAS OPEN TO THE
29 PUBLIC.
30 (5) MEANS OF MASS TRANSPORTATION, INCLUDING SUBWAYS,
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1 BUSES, TRAINS, TAXICABS AND LIMOUSINES.
2 (6) TICKETING, BOARDING AND WAITING AREAS IN PUBLIC
3 TRANSPORTATION TERMINALS, INCLUDING, BUT NOT LIMITED TO,
4 UNDERGROUND SUBWAY STATIONS, TRAIN STATIONS AND BUS STATIONS.
5 (7) A PUBLIC OR PRIVATE FACILITY THAT HOUSES OR TREATS
6 CHILDREN AND YOUTH IN STATE OR COUNTY CUSTODY, INCLUDING
7 YOUTH DETENTION CENTERS, GROUP HOMES AND PRIVATE HOMES.
8 (8) A PUBLIC OR PRIVATE FACILITY, INCLUDING A PRIVATE
9 HOME THAT PROVIDES CHILD-CARE AND/OR ADULT DAY-CARE SERVICES.
10 (9) SCHOOL FACILITIES.
11 (10) PUBLIC AND PRIVATE COLLEGES, UNIVERSITIES AND OTHER
12 EDUCATIONAL AND VOCATIONAL INSTITUTIONS.
13 (11) HEALTH CARE OR GOVERNMENT HOUSING FACILITIES. THIS
14 PARAGRAPH, HOWEVER, SHALL NOT PROHIBIT SMOKING BY PATIENTS OR
15 RESIDENTS IN SEPARATE ENCLOSED ROOMS OF RESIDENTIAL HEALTH
16 CARE FACILITIES, GOVERNMENT HOUSING FACILITIES, ADULT CARE
17 FACILITIES, COMMUNITY MENTAL HEALTH RESIDENCES OR FACILITIES
18 WHERE DAY TREATMENT PROGRAMS ARE PROVIDED, WHICH ARE
19 DESIGNATED AS SMOKING ROOMS FOR PATIENTS OF THE FACILITIES OR
20 PROGRAMS, OR IN PRIVATE RESIDENCES WITHIN THE FACILITIES,
21 PROVIDED THAT THE ROOMS OR RESIDENCES ARE VENTILATED TO THE
22 OUTSIDE.
23 (12) COMMERCIAL ESTABLISHMENTS USED FOR THE PURPOSE OF
24 CARRYING ON OR EXERCISING ANY TRADE, PROFESSION, VOCATION OR
25 CHARITABLE ACTIVITY.
26 (13) INDOOR ARENAS.
27 (14) ZOOS.
28 (15) FACILITIES WHERE BINGO, AS DEFINED IN THE ACT OF
29 JULY 10, 1981 (P.L.214, NO.67), KNOWN AS THE BINGO LAW, IS
30 PLAYED.
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1 (16) LICENSED FACILITIES, AS DEFINED UNDER 4 PA.C.S. §
2 1103 (RELATING TO DEFINITIONS), OR ANY OTHER SIMILAR TYPE OF
3 FACILITY AUTHORIZED UNDER STATE LAW.
4 (17) AT LEAST 75% OF THE TOTAL NUMBER OF SLEEPING
5 QUARTERS AVAILABLE FOR RENT TO GUESTS WITHIN A SINGLE LODGING
6 ESTABLISHMENT SUCH AS A HOTEL OR MOTEL.
7 (B) SIGNAGE.--"SMOKING" OR "NO SMOKING" SIGNS OR THE
8 INTERNATIONAL "NO SMOKING" SYMBOL, WHICH CONSISTS OF A PICTORIAL
9 REPRESENTATION OF A BURNING CIGARETTE IN A CIRCLE WITH A BAR
10 ACROSS IT, SHALL BE PROMINENTLY POSTED AND PROPERLY MAINTAINED
11 WHERE SMOKING IS REGULATED BY THIS SECTION, BY THE OWNER,
12 OPERATOR, MANAGER OR OTHER PERSON HAVING CONTROL OF THE AREA.
13 (C) EXCEPTIONS.--THE PROVISIONS OF THIS SECTION SHALL NOT
14 APPLY TO ANY OF THE FOLLOWING:
15 (1) PRIVATE HOMES, PRIVATE RESIDENCES AND PRIVATE
16 AUTOMOBILES UNLESS THE PRIVATE HOME, PRIVATE RESIDENCE OR
17 PRIVATE VEHICLE IS BEING USED AT THE TIME FOR THE PROVISION
18 OF CHILD-CARE SERVICES OR SERVICES RELATED TO THE CARE OF
19 CHILDREN AND YOUTH IN STATE OR COUNTY CUSTODY, PURSUANT TO
20 SECTION 4(A)(7), (8) AND (9).
21 (2) RETAIL TOBACCO BUSINESSES.
22 (3) CIGAR BARS.
23 (4) DESIGNATED SLEEPING QUARTERS WITHIN A LODGING
24 ESTABLISHMENT AVAILABLE FOR RENT TO GUESTS ACCOUNTING FOR NO
25 MORE THAN 25% OF THE TOTAL NUMBER OF LODGING UNITS WITHIN A
26 SINGLE LODGING ESTABLISHMENT SUCH AS A HOTEL OR MOTEL.
27 (5) WORKPLACES OF ANY MANUFACTURER, IMPORTER OR
28 WHOLESALER OF TOBACCO PRODUCTS, OF ANY TOBACCO LEAF DEALER OR
29 PROCESSOR AND ALL TOBACCO STORAGE FACILITIES.
30 (D) RELATIONSHIP TO OTHER LAWS.--SMOKING MAY NOT BE
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1 PERMITTED WHERE PROHIBITED BY ANY OTHER LAW, RULE OR REGULATION
2 OF ANY COMMONWEALTH AGENCY OR ANY POLITICAL SUBDIVISION. NOTHING
3 IN THIS SECTION SHALL BE CONSTRUED TO RESTRICT THE POWER OF ANY
4 POLITICAL SUBDIVISION TO ADOPT AND ENFORCE ADDITIONAL LOCAL
5 LAWS, ORDINANCES OR REGULATIONS THAT ARE MORE RESTRICTIVE THAN
6 THIS SECTION AND COMPLY WITH THE STANDARDS SET FORTH UNDER THIS
7 SECTION.
8 (E) PROHIBITED ACTS.--THE FOLLOWING SHALL BE UNLAWFUL:
9 (1) FOR ANY EMPLOYER OR OTHER PERSON THAT OWNS, MANAGES,
10 OPERATES OR OTHERWISE CONTROLS THE USE OF AN AREA IN WHICH
11 SMOKING IS PROHIBITED OR RESTRICTED UNDER THIS SECTION TO
12 FAIL TO COMPLY WITH THE PROVISIONS OF THIS SECTION. IT SHALL
13 BE AN AFFIRMATIVE DEFENSE THAT DURING THE RELEVANT TIME
14 PERIOD ACTUAL CONTROL OF THE AREA WAS NOT EXERCISED BY THE
15 EMPLOYER OR OTHER PERSON, BUT RATHER BY A LESSEE OR A
16 SUBLESSEE. IT SHALL ALSO BE AN AFFIRMATIVE DEFENSE THAT THE
17 EMPLOYER OR OTHER PERSON HAS MADE A GOOD FAITH EFFORT TO
18 ENSURE COMPLIANCE WITH THE PROVISIONS OF THIS SECTION. TO
19 ESTABLISH AN AFFIRMATIVE DEFENSE, THE EMPLOYER OR OTHER
20 PERSON WHO CONTROLS THE AREA SHALL SUBMIT AN AFFIDAVIT AND
21 MAY SUBMIT ANY OTHER RELEVANT PROOF INDICATING THAT THE
22 PERSON DID NOT EXERCISE ACTUAL CONTROL OF THE AREA DURING THE
23 RELEVANT TIME PERIOD, OR THAT HE MADE A GOOD FAITH EFFORT TO
24 ENSURE COMPLIANCE WITH THE LAW. THE AFFIDAVIT AND OTHER PROOF
25 SHALL BE SENT BY CERTIFIED MAIL TO THE APPROPRIATE
26 ENFORCEMENT OFFICER WITHIN 30 DAYS OF RECEIPT BY THE PERSON
27 OF A NOTICE OF VIOLATION.
28 (2) FOR AN INDIVIDUAL TO SMOKE IN ANY AREA WHERE SMOKING
29 IS PROHIBITED OR RESTRICTED UNDER THIS SECTION.
30 (F) PENALTY FOR UNLAWFUL CONDUCT.--
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1 (1) IF THE ENFORCEMENT OFFICER DETERMINES THAT A
2 VIOLATION OF SUBSECTION (E) HAS OCCURRED, THE ENFORCEMENT
3 OFFICER MAY IMPOSE A CIVIL PENALTY OF $250 FOR THE FIRST
4 OFFENSE, $500 FOR THE SECOND OFFENSE AND $1,000 FOR EACH
5 SUBSEQUENT OFFENSE. THE MONEY SHALL GO TO THE COUNTY BOARD OF
6 HEALTH OR IN COUNTIES THAT DO NOT HAVE A BOARD OF HEALTH, THE
7 DEPARTMENT, TO BE USED TO ENFORCE THIS ACT. IN ADDITION, A
8 COURT OF COMPETENT JURISDICTION MAY ORDER IMMEDIATE
9 COMPLIANCE WITH THE PROVISIONS OF THIS SECTION.
10 (2) THE ENFORCEMENT OFFICER MAY BRING AN ACTION TO
11 RECOVER THE CIVIL PENALTY PROVIDED UNDER PARAGRAPH (1) IN ANY
12 COURT OF COMPETENT JURISDICTION. A CIVIL PENALTY RECOVERED
13 UNDER THE PROVISIONS OF THIS SECTION SHALL BE RECOVERED BY
14 AND IN THE NAME OF THE COUNTY BOARD OF HEALTH OR THE COUNTY
15 FOR WHOM THE ENFORCEMENT OFFICER HAS BEEN DESIGNATED.
16 (G) ENFORCEMENT OFFICER.--IF A COUNTY DOES NOT HAVE A BOARD
17 OF HEALTH, THE GOVERNING BODY OF THE COUNTY SHALL, BY RESOLUTION
18 ADOPTED WITHIN 30 DAYS FOLLOWING THE EFFECTIVE DATE OF THIS
19 SECTION, DESIGNATE AN OFFICER FOR THE PURPOSE OF ENFORCING THIS
20 SECTION. THE DESIGNATION SHALL BE FILED WITH THE DEPARTMENT
21 WITHIN 30 DAYS AFTER ADOPTION AND SHALL BE EFFECTIVE 30 DAYS
22 AFTER IT IS FILED WITH THE DEPARTMENT. THE ENFORCEMENT OFFICER
23 SHALL HAVE SOLE JURISDICTION TO ENFORCE THE PROVISIONS OF THIS
24 SECTION ON A COUNTYWIDE BASIS UNDER THE GUIDELINES DEVELOPED AND
25 PUBLISHED BY THE DEPARTMENT. ANY PERSON WHO DESIRES TO REGISTER
26 A COMPLAINT UNDER THIS SECTION MAY DO SO WITH THE APPROPRIATE
27 ENFORCEMENT OFFICER.
28 SECTION 5. RETALIATION PROHIBITED.
29 NO PERSON OR EMPLOYER SHALL DISCHARGE, REFUSE TO HIRE OR IN
30 ANY MANNER RETALIATE AGAINST ANY EMPLOYEE OR APPLICANT FOR
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1 EMPLOYMENT BECAUSE THE EMPLOYER OR APPLICANT EXERCISES ANY RIGHT
2 TO A SMOKE-FREE ENVIRONMENT REQUIRED BY THIS ACT.
3 SECTION 6. RULES AND REGULATIONS.
4 THE DEPARTMENT SHALL PROMULGATE AND ADOPT RULES AND
5 REGULATIONS AS ARE NECESSARY AND REASONABLE TO IMPLEMENT THE
6 PROVISIONS OF THIS ACT INCLUDING THE ENFORCEMENT OF THIS ACT IN
7 THE EVENT INDIVIDUAL COUNTIES FAIL TO ENFORCE THIS ACT. THE
8 DEPARTMENT SHALL ALSO ENGAGE IN A CONTINUING PROGRAM TO EXPLAIN
9 AND CLARIFY THE PURPOSES AND REQUIREMENTS OF THIS ACT TO PERSONS
10 AFFECTED BY IT AND TO GUIDE OWNERS, OPERATORS AND MANAGERS IN
11 THEIR COMPLIANCE WITH THIS ACT. THE PROGRAMS MAY INCLUDE
12 PUBLICATION OF A BROCHURE FOR AFFECTED BUSINESSES AND
13 INDIVIDUALS EXPLAINING THE PROVISIONS OF THIS ACT.
14 SECTION 7. CONSTRUCTION.
15 IN ANY DISPUTE ARISING UNDER THE PROVISIONS OF THIS ACT, THE
16 AUTHORITY ADJUDICATING THE DISPUTE SHALL CONSTRUE THE PROVISIONS
17 OF THIS ACT IN FAVOR OF THE HEALTH CONCERNS OF PERSONS WHO DO
18 NOT ENGAGE IN SMOKING AND WHOSE CONCERNS SHALL REPRESENT THE
19 PUBLIC INTEREST.
20 SECTION 8. REPEAL.
21 SECTION 10.1 OF THE ACT OF APRIL 27, 1927 (P.L.465, NO.299),
22 REFERRED TO AS THE FIRE AND PANIC ACT, IS REPEALED IN ORDER TO
23 EFFECTUATE THE PROVISIONS OF THIS ACT.
24 SECTION 9. EFFECTIVE DATE.
25 THIS ACT SHALL TAKE EFFECT IN 90 DAYS.
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