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: SB0246A02970 - 2 -
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 SB0246A02970 - 3 -
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 SB0246A02970 - 4 -
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 SB0246A02970 - 5 -
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. SB0246A02970 - 6 -
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 G10L90VDL/SB0246A02970 - 7 -