HOUSE AMENDED PRIOR PRINTER'S NOS. 25, 1227, 1286 PRINTER'S NO. 1326
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 AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, JULY 15, 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 20070S0246B1326 - 2 -
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). 20070S0246B1326 - 3 -
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 20070S0246B1326 - 4 -
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. 20070S0246B1326 - 5 -
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 20070S0246B1326 - 6 -
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 20070S0246B1326 - 7 -
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 20070S0246B1326 - 8 -
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. 20070S0246B1326 - 9 -
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. 20070S0246B1326 - 10 -
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 20070S0246B1326 - 11 -
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 SALES OF TOBACCO AND TOBACCO-RELATED <-- 4 PRODUCTS GENERATED 75% OR MORE OF ITS ANNUAL GROSS INCOME IN THE 5 CALENDAR YEAR ENDING DECEMBER 31, 2005, AND, ON AN ONGOING 6 BASIS, THE CALENDAR YEAR PRECEDING AN ESTABLISHMENT'S CLAIM OF 7 BEING A CIGAR BAR. 8 "DEPARTMENT." THE DEPARTMENT OF HEALTH OF THE COMMONWEALTH. 9 "ENCLOSED." HAVING A CEILING OR ROOF, EXCEPT FOR DOORS, 10 WINDOWS OR PASSAGEWAYS, WHOLLY ENCLOSED EITHER ON A PERMANENT OR 11 TEMPORARY BASIS. 12 "ENFORCEMENT OFFICER." THE BOARD OF HEALTH OF A COUNTY OR IN 13 A COUNTY THAT DOES NOT HAVE A BOARD OF HEALTH, THE DEPARTMENT. 14 "GOVERNMENT HOUSING FACILITY." GOVERNMENT-OWNED, MULTIPLE- 15 UNIT RESIDENTIAL FACILITIES. 16 "HEALTH CARE FACILITY." ANY HEALTH CARE FACILITY PROVIDING 17 CLINICALLY RELATED HEALTH SERVICES, INCLUDING, BUT NOT LIMITED 18 TO, A GENERAL OR SPECIAL HOSPITAL, INCLUDING PSYCHIATRIC 19 HOSPITALS, REHABILITATION HOSPITALS, AMBULATORY SURGICAL 20 FACILITIES, LONG-TERM CARE NURSING FACILITIES, CANCER TREATMENT 21 CENTERS USING RADIATION THERAPY OR SPECIAL HOSPITAL, INCLUDING 22 PSYCHIATRIC HOSPITALS, REHABILITATION HOSPITALS, AMBULATORY 23 SURGICAL FACILITIES, LONG-TERM CARE NURSING FACILITIES, CANCER 24 TREATMENT CENTERS USING RADIATION THERAPY ON AN AMBULATORY BASIS 25 AND INPATIENT DRUG AND ALCOHOL TREATMENT FACILITIES, BOTH PROFIT 26 AND NONPROFIT AND INCLUDING THOSE OPERATED BY AN AGENCY OR STATE 27 OR LOCAL GOVERNMENT. THE TERM SHALL ALSO INCLUDE A HOSPICE. 28 "PRIVATE CLUB." ANY REPUTABLE GROUP OF INDIVIDUALS <-- 29 ASSOCIATED TOGETHER AS A NOT-FOR-PROFIT ORGANIZATION FOR 30 LEGITIMATE PURPOSES OF MUTUAL BENEFIT, ENTERTAINMENT, FELLOWSHIP 20070S0246B1326 - 12 -
1 OR LAWFUL CONVENIENCE WHICH REGULARLY AND EXCLUSIVELY OCCUPIES, 2 AS OWNER OR LESSEE, A CLUBHOUSE OR QUARTERS FOR THE USE OF ITS 3 MEMBERS AND WHICH HOLDS REGULAR MEETINGS, CONDUCTS BUSINESS 4 THROUGH OFFICERS REGULARLY ELECTED, ADMITS MEMBERS BY WRITTEN 5 APPLICATION, INVESTIGATION AND BALLOT, AND CHARGES AND COLLECTS 6 DUES FROM ELECTED MEMBERS. THE CLUB SHALL EITHER BE INCORPORATED 7 OR, IF UNINCORPORATED, PROVIDE PROOF OF CONTINUOUS EXISTENCE FOR 8 THE PAST TEN YEARS IN A MANNER DEEMED SUFFICIENT BY THE 9 DEPARTMENT OF HEALTH. 10 "RESTAURANT." ANY AREA, ENCLOSED OR SUBSTANTIALLY ENCLOSED, 11 DEVOTED TO THE SALE OR SERVICE OF FOOD. 12 "RETAIL TOBACCO BUSINESS." A SOLE PROPRIETORSHIP, LIMITED 13 LIABILITY COMPANY, CORPORATION, PARTNERSHIP OR OTHER ENTERPRISE 14 IN WHICH THE PRIMARY ACTIVITY IS THE RETAIL SALE OF TOBACCO 15 PRODUCTS AND ACCESSORIES WHERE THE SALE OF GOODS GENERATED 25% <-- 16 OR LESS TOBACCO AND TOBACCO-RELATED PRODUCTS GENERATED 75% OR <-- 17 MORE OF ITS ANNUAL GROSS INCOME IN THE CALENDAR YEAR ENDING 18 DECEMBER 31, 2005, AND, ON AN ONGOING BASIS, THE CALENDAR YEAR 19 PRECEDING AN ESTABLISHMENT'S CLAIM OF BEING A RETAIL TOBACCO 20 BUSINESS. 21 "SCHOOL GROUNDS FACILITIES." A BUILDING OR STRUCTURE LOCATED <-- 22 WITHIN A PUBLIC OR PRIVATE PRESCHOOL, NURSERY SCHOOL, ELEMENTARY 23 OR SECONDARY SCHOOL'S LEGALLY DEFINED PROPERTY BOUNDARIES AND 24 ANY VEHICLES OPERATED DIRECTLY BY THE SCHOOL OR UNDER THEIR <-- 25 CONTRACT USED TO TRANSPORT CHILDREN OR SCHOOL PERSONNEL. 26 "SMOKING." THE BURNING OF A LIGHTED CIGAR, CIGARETTE, PIPE 27 OR ANY OTHER MATTER OR SUBSTANCE WHICH CONTAINS TOBACCO. 28 "SUBSTANTIALLY ENCLOSED." HAVING A CEILING OR ROOF, WITH AN 29 OPENING IN THE WALLS CONSTITUTING LESS THAN HALF THE TOTAL AREA 30 OF THE WALLS. THE AREA OF THE OPENING DOES NOT INCLUDE DOORS, 20070S0246B1326 - 13 -
1 WINDOWS OR OTHER FITTINGS OPENED OR SHUT. 2 "WORKPLACE." AN ENCLOSED OR SUBSTANTIALLY ENCLOSED AREA 3 SERVING AS A PLACE OF EMPLOYMENT, OCCUPATION, BUSINESS, TRADE, 4 CRAFT, PROFESSION OR VOLUNTEER ACTIVITY, INCLUDING EMPLOYER- 5 OWNED VEHICLES WITH MORE THAN ONE OCCUPANT. 6 SECTION 4. SMOKING RESTRICTIONS. 7 (A) RESTRICTIONS.--SMOKING SHALL NOT BE PERMITTED AND NO 8 INDIVIDUAL SHALL SMOKE IN ANY OF THE FOLLOWING AREAS IF THEY ARE 9 ENCLOSED OR SUBSTANTIALLY ENCLOSED AREAS: 10 (1) WORKPLACES. 11 (2) BARS. 12 (3) RESTAURANTS. 13 (4) ENCLOSED OR SUBSTANTIALLY ENCLOSED AREAS OPEN TO THE 14 PUBLIC. 15 (5) MEANS OF MASS TRANSPORTATION, INCLUDING SUBWAYS, 16 BUSES, TRAINS, TAXICABS AND LIMOUSINES. 17 (6) TICKETING, BOARDING AND WAITING AREAS IN PUBLIC 18 TRANSPORTATION TERMINALS, INCLUDING, BUT NOT LIMITED TO, 19 UNDERGROUND SUBWAY STATIONS, TRAIN STATIONS AND BUS STATIONS. 20 (7) A PUBLIC OR PRIVATE FACILITY THAT HOUSES OR TREATS 21 CHILDREN AND YOUTH IN STATE OR COUNTY CUSTODY, INCLUDING 22 YOUTH DETENTION CENTERS, GROUP HOMES AND PRIVATE HOMES. 23 (8) A PUBLIC OR PRIVATE FACILITY, INCLUDING A PRIVATE 24 HOME THAT PROVIDES CHILD-CARE AND/OR ADULT DAY-CARE SERVICES. 25 (9) SCHOOL FACILITIES. 26 (10) PUBLIC AND PRIVATE COLLEGES, UNIVERSITIES AND OTHER 27 EDUCATIONAL AND VOCATIONAL INSTITUTIONS. 28 (11) HEALTH CARE OR GOVERNMENT HOUSING FACILITIES. THIS 29 PARAGRAPH, HOWEVER, SHALL NOT PROHIBIT SMOKING BY PATIENTS OR 30 RESIDENTS IN SEPARATE ENCLOSED ROOMS OF RESIDENTIAL HEALTH 20070S0246B1326 - 14 -
1 CARE FACILITIES, GOVERNMENT HOUSING FACILITIES, ADULT CARE 2 FACILITIES, COMMUNITY MENTAL HEALTH RESIDENCES OR FACILITIES 3 WHERE DAY TREATMENT PROGRAMS ARE PROVIDED, WHICH ARE 4 DESIGNATED AS SMOKING ROOMS FOR PATIENTS OF THE FACILITIES OR 5 PROGRAMS, OR IN PRIVATE RESIDENCES WITHIN THE FACILITIES, 6 PROVIDED THAT THE ROOMS OR RESIDENCES ARE VENTILATED TO THE 7 OUTSIDE. 8 (12) COMMERCIAL ESTABLISHMENTS USED FOR THE PURPOSE OF 9 CARRYING ON OR EXERCISING ANY TRADE, PROFESSION, VOCATION OR 10 CHARITABLE ACTIVITY. 11 (13) INDOOR ARENAS. 12 (14) ZOOS. 13 (15) FACILITIES WHERE BINGO, AS DEFINED IN THE ACT OF 14 JULY 10, 1981 (P.L.214, NO.67), KNOWN AS THE BINGO LAW, IS 15 PLAYED. 16 (16) LICENSED FACILITIES, AS DEFINED UNDER 4 PA.C.S. § 17 1103 (RELATING TO DEFINITIONS), OR ANY OTHER SIMILAR TYPE OF 18 FACILITY AUTHORIZED UNDER STATE LAW. 19 (17) AT LEAST 75% OF THE TOTAL NUMBER OF SLEEPING 20 QUARTERS AVAILABLE FOR RENT TO GUESTS WITHIN A SINGLE LODGING 21 ESTABLISHMENT SUCH AS A HOTEL OR MOTEL. 22 (B) SIGNAGE.--"SMOKING" OR "NO SMOKING" SIGNS OR THE 23 INTERNATIONAL "NO SMOKING" SYMBOL, WHICH CONSISTS OF A PICTORIAL 24 REPRESENTATION OF A BURNING CIGARETTE IN A CIRCLE WITH A BAR 25 ACROSS IT, SHALL BE PROMINENTLY POSTED AND PROPERLY MAINTAINED 26 WHERE SMOKING IS REGULATED BY THIS SECTION, BY THE OWNER, 27 OPERATOR, MANAGER OR OTHER PERSON HAVING CONTROL OF THE AREA. 28 (C) EXCEPTIONS.--THE PROVISIONS OF THIS SECTION SHALL NOT 29 APPLY TO ANY OF THE FOLLOWING: 30 (1) PRIVATE HOMES, PRIVATE RESIDENCES AND PRIVATE 20070S0246B1326 - 15 -
1 AUTOMOBILES UNLESS THE PRIVATE HOME, PRIVATE RESIDENCE OR 2 PRIVATE VEHICLE IS BEING USED AT THE TIME FOR THE PROVISION 3 OF CHILD-CARE SERVICES OR SERVICES RELATED TO THE CARE OF 4 CHILDREN AND YOUTH IN STATE OR COUNTY CUSTODY, PURSUANT TO 5 SUBSECTION (A)(7), (8) AND (9). 6 (2) RETAIL TOBACCO BUSINESSES. 7 (3) CIGAR BARS. 8 (4) DESIGNATED SLEEPING QUARTERS WITHIN A LODGING 9 ESTABLISHMENT AVAILABLE FOR RENT TO GUESTS ACCOUNTING FOR NO 10 MORE THAN 25% OF THE TOTAL NUMBER OF LODGING UNITS WITHIN A 11 SINGLE LODGING ESTABLISHMENT SUCH AS A HOTEL OR MOTEL. 12 (5) WORKPLACES OF ANY MANUFACTURER, IMPORTER OR 13 WHOLESALER OF TOBACCO PRODUCTS, OF ANY TOBACCO LEAF DEALER OR 14 PROCESSOR AND ALL TOBACCO STORAGE FACILITIES. 15 (6) A PRIVATE CLUB. <-- 16 (7) AN EXHIBITION HALL, CONFERENCE ROOM OR SIMILAR 17 FACILITY USED EXCLUSIVELY FOR AN EVENT TO WHICH THE PUBLIC IS 18 INVITED FOR THE PRIMARY PURPOSE OF PROMOTING AND SAMPLING 19 TOBACCO PRODUCTS, AND WHERE THE SERVICE OF FOOD AND DRINK IS 20 INCIDENTAL, IF THE SPONSOR OR ORGANIZER GIVES NOTICE IN ALL 21 ADVERTISEMENTS AND OTHER PROMOTIONAL MATERIALS GIVE NOTICE 22 THAT SMOKING WILL NOT BE RESTRICTED. AT LEAST 75% OF ALL 23 PRODUCTS DISPLAYED OR DISTRIBUTED AT THE EVENT SHALL BE 24 TOBACCO OR TOBACCO-RELATED PRODUCTS. NOTICE THAT SMOKING WILL 25 NOT BE RESTRICTED MUST BE PROMINENTLY POSTED AT THE ENTRANCE 26 TO THE FACILITY. NO RETAILER, MANUFACTURER OR DISTRIBUTOR OF 27 TOBACCO MAY CONDUCT MORE THAN SIX DAYS OF A PROMOTIONAL EVENT 28 UNDER THIS PARAGRAPH IN ANY CALENDAR YEAR. 29 (D) RELATIONSHIP TO OTHER LAWS.--SMOKING MAY NOT BE 30 PERMITTED WHERE PROHIBITED BY ANY OTHER LAW, RULE OR REGULATION 20070S0246B1326 - 16 -
1 OF ANY COMMONWEALTH AGENCY OR ANY POLITICAL SUBDIVISION. NOTHING 2 IN THIS SECTION SHALL BE CONSTRUED TO RESTRICT THE POWER OF ANY 3 POLITICAL SUBDIVISION TO ADOPT AND ENFORCE ADDITIONAL LOCAL 4 LAWS, ORDINANCES OR REGULATIONS THAT ARE MORE RESTRICTIVE THAN 5 THIS SECTION AND COMPLY WITH THE STANDARDS SET FORTH UNDER THIS 6 SECTION. 7 (E) PROHIBITED ACTS.--THE FOLLOWING SHALL BE UNLAWFUL: 8 (1) FOR ANY EMPLOYER OR OTHER PERSON THAT OWNS, MANAGES, 9 OPERATES OR OTHERWISE CONTROLS THE USE OF AN AREA IN WHICH 10 SMOKING IS PROHIBITED OR RESTRICTED UNDER THIS SECTION TO 11 FAIL TO COMPLY WITH THE PROVISIONS OF THIS SECTION. IT SHALL 12 BE AN AFFIRMATIVE DEFENSE THAT DURING THE RELEVANT TIME 13 PERIOD ACTUAL CONTROL OF THE AREA WAS NOT EXERCISED BY THE 14 EMPLOYER OR OTHER PERSON, BUT RATHER BY A LESSEE OR A 15 SUBLESSEE. IT SHALL ALSO BE AN AFFIRMATIVE DEFENSE THAT THE 16 EMPLOYER OR OTHER PERSON HAS MADE A GOOD FAITH EFFORT TO 17 ENSURE COMPLIANCE WITH THE PROVISIONS OF THIS SECTION. TO 18 ESTABLISH AN AFFIRMATIVE DEFENSE, THE EMPLOYER OR OTHER 19 PERSON WHO CONTROLS THE AREA SHALL SUBMIT AN AFFIDAVIT AND 20 MAY SUBMIT ANY OTHER RELEVANT PROOF INDICATING THAT THE 21 PERSON DID NOT EXERCISE ACTUAL CONTROL OF THE AREA DURING THE 22 RELEVANT TIME PERIOD, OR THAT HE MADE A GOOD FAITH EFFORT TO 23 ENSURE COMPLIANCE WITH THE LAW. THE AFFIDAVIT AND OTHER PROOF 24 SHALL BE SENT BY CERTIFIED MAIL TO THE APPROPRIATE 25 ENFORCEMENT OFFICER WITHIN 30 DAYS OF RECEIPT BY THE PERSON 26 OF A NOTICE OF VIOLATION. 27 (2) FOR AN INDIVIDUAL TO SMOKE IN ANY AREA WHERE SMOKING 28 IS PROHIBITED OR RESTRICTED UNDER THIS SECTION. 29 (F) PENALTY FOR UNLAWFUL CONDUCT.-- 30 (1) IF THE ENFORCEMENT OFFICER DETERMINES THAT A 20070S0246B1326 - 17 -
1 VIOLATION OF SUBSECTION (E) HAS OCCURRED, THE ENFORCEMENT 2 OFFICER MAY IMPOSE A CIVIL PENALTY OF $250 FOR THE FIRST 3 OFFENSE, $500 FOR THE SECOND OFFENSE AND $1,000 FOR EACH 4 SUBSEQUENT OFFENSE. THE MONEY SHALL GO TO THE COUNTY BOARD OF 5 HEALTH OR IN COUNTIES THAT DO NOT HAVE A BOARD OF HEALTH, THE 6 DEPARTMENT, TO BE USED TO ENFORCE THIS ACT. IN ADDITION, A 7 COURT OF COMPETENT JURISDICTION MAY ORDER IMMEDIATE 8 COMPLIANCE WITH THE PROVISIONS OF THIS SECTION. 9 (2) THE ENFORCEMENT OFFICER MAY BRING AN ACTION TO 10 RECOVER THE CIVIL PENALTY PROVIDED UNDER PARAGRAPH (1) IN ANY 11 COURT OF COMPETENT JURISDICTION. A CIVIL PENALTY RECOVERED 12 UNDER THE PROVISIONS OF THIS SECTION SHALL BE RECOVERED BY 13 AND IN THE NAME OF THE COUNTY BOARD OF HEALTH OR THE COUNTY 14 FOR WHOM THE ENFORCEMENT OFFICER HAS BEEN DESIGNATED. 15 (G) ENFORCEMENT OFFICER.--IF A COUNTY DOES NOT HAVE A BOARD 16 OF HEALTH, THE GOVERNING BODY OF THE COUNTY SHALL, BY RESOLUTION 17 ADOPTED WITHIN 30 DAYS FOLLOWING THE EFFECTIVE DATE OF THIS 18 SECTION, DESIGNATE AN OFFICER FOR THE PURPOSE OF ENFORCING THIS 19 SECTION. THE DESIGNATION SHALL BE FILED WITH THE DEPARTMENT 20 WITHIN 30 DAYS AFTER ADOPTION AND SHALL BE EFFECTIVE 30 DAYS 21 AFTER IT IS FILED WITH THE DEPARTMENT. THE ENFORCEMENT OFFICER 22 SHALL HAVE SOLE JURISDICTION TO ENFORCE THE PROVISIONS OF THIS 23 SECTION ON A COUNTYWIDE BASIS UNDER THE GUIDELINES DEVELOPED AND 24 PUBLISHED BY THE DEPARTMENT. ANY PERSON WHO DESIRES TO REGISTER 25 A COMPLAINT UNDER THIS SECTION MAY DO SO WITH THE APPROPRIATE 26 ENFORCEMENT OFFICER. 27 SECTION 5. RETALIATION PROHIBITED. 28 NO PERSON OR EMPLOYER SHALL DISCHARGE, REFUSE TO HIRE OR IN 29 ANY MANNER RETALIATE AGAINST ANY EMPLOYEE OR APPLICANT FOR 30 EMPLOYMENT BECAUSE THE EMPLOYER OR APPLICANT EXERCISES ANY RIGHT 20070S0246B1326 - 18 -
1 TO A SMOKE-FREE ENVIRONMENT REQUIRED BY THIS ACT. 2 SECTION 6. RULES AND REGULATIONS. 3 THE DEPARTMENT SHALL PROMULGATE AND ADOPT RULES AND 4 REGULATIONS AS ARE NECESSARY AND REASONABLE TO IMPLEMENT THE 5 PROVISIONS OF THIS ACT INCLUDING THE ENFORCEMENT OF THIS ACT IN 6 THE EVENT INDIVIDUAL COUNTIES FAIL TO ENFORCE THIS ACT. THE 7 DEPARTMENT SHALL ALSO ENGAGE IN A CONTINUING PROGRAM TO EXPLAIN 8 AND CLARIFY THE PURPOSES AND REQUIREMENTS OF THIS ACT TO PERSONS 9 AFFECTED BY IT AND TO GUIDE OWNERS, OPERATORS AND MANAGERS IN 10 THEIR COMPLIANCE WITH THIS ACT. THE PROGRAMS MAY INCLUDE 11 PUBLICATION OF A BROCHURE FOR AFFECTED BUSINESSES AND 12 INDIVIDUALS EXPLAINING THE PROVISIONS OF THIS ACT. 13 SECTION 7. CONSTRUCTION. 14 IN ANY DISPUTE ARISING UNDER THE PROVISIONS OF THIS ACT, THE 15 AUTHORITY ADJUDICATING THE DISPUTE SHALL CONSTRUE THE PROVISIONS 16 OF THIS ACT IN FAVOR OF THE HEALTH CONCERNS OF PERSONS WHO DO 17 NOT ENGAGE IN SMOKING AND WHOSE CONCERNS SHALL REPRESENT THE 18 PUBLIC INTEREST. 19 SECTION 8. REPEAL. 20 SECTION 10.1 OF THE ACT OF APRIL 27, 1927 (P.L.465, NO.299), 21 REFERRED TO AS THE FIRE AND PANIC ACT, IS REPEALED IN ORDER TO 22 EFFECTUATE THE PROVISIONS OF THIS ACT. 23 SECTION 9. EFFECTIVE DATE. 24 THIS ACT SHALL TAKE EFFECT IN 90 DAYS. A17L35DMS/20070S0246B1326 - 19 -