THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY SCAVELLO, CHRISTIANA, BOYD, D. COSTA, EVERETT, FRANKEL, FREEMAN, GIBBONS, GINGRICH, JOSEPHS, MELIO, MUNDY, MURT, SWANGER AND VULAKOVICH, APRIL 8, 2009

REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, APRIL 8, 2009  

AN ACT

Amending the act of June 13, 2008 (P.L.182, No.27), entitled "An

act regulating smoking in this Commonwealth; imposing powers

and duties on the Department of Health and local boards of

health; providing penalties; preempting local action; and

making a related repeal," further prohibiting smoking in

public places; providing for local ordinances; and making a

related repeal of the Fire and Panic Act.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  The title of the act of June 13, 2008 (P.L.182,

No.27), known as the Clean Indoor Air Act, is amended to read:

AN ACT

Regulating smoking in this Commonwealth; imposing powers and

duties on the Department of Health and local boards of

health; providing penalties; [preempting] repealing

provisions relating to preemption of local action; providing

for effect on local ordinances; and making [a related repeal]

related repeals.

Section 2.  Sections 2, 3(b) and (c), 4, 5(d), 6(c) and 10 of

the act are amended to read:

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Cigar bar."  Any of the following:

(1)  An establishment which, on [the effective date of

this section] September 11, 2008, operates pursuant to an

eating place retail dispenser's or restaurant liquor license

under the act of April 12, 1951 (P.L.90, No.21), known as the

Liquor Code, and is physically connected by a door,

passageway or other opening and directly adjacent to a

tobacco shop.

(2)  An establishment which, at any time, operates

pursuant to an eating place retail dispenser's license, malt

or brewed beverage distributor's license or restaurant liquor

license under the Liquor Code, and has total annual sales of

tobacco products, including tobacco, accessories or cigar

storage lockers or humidors of at least 15% of the combined

gross sales of the establishment.

"Department."  The Department of Health of the Commonwealth.

"Drinking establishment."  [Any of the following:

(1)]  An establishment which[:

(i)]  operates pursuant to an eating place retail

dispenser's license, restaurant liquor license or retail

dispenser's license under the act of April 12, 1951

(P.L.90, No.21), known as the Liquor Code[;]. The term

also includes a nightclub.

[(ii)  has total annual sales of food sold for on-

premises consumption of less than or equal to 20% of the

combined gross sales of the establishment; and

(iii)  does not permit individuals under 18 years of

age.

(2)  An enclosed area within an establishment which, on

the effective date of this section:

(i)  operates pursuant to an eating place retail

dispenser's license, restaurant liquor license or retail

dispenser's license under the Liquor Code;

(ii)  is a physically connected or directly adjacent

enclosed area which is separate from the eating area, has

a separate air system and has a separate outside

entrance;

(iii)  has total annual sales of food sold for on-

premises consumption of less than or equal to 20% of the

combined gross sales within the permitted smoking area of

the establishment; and

(iv)  does not permit individuals under 18 years of

age.

The term does not include a nightclub.]

"Full-service truck stop."  An establishment catering to

long-haul truck drivers that provides shower facilities for a

fee.

"Gaming floor."  Any portion of a licensed facility where

slot machines have been installed for use or play as approved by

the Pennsylvania Gaming Control Board. [The term does not

include an area adjacent to the gaming floor, including any

hallway, reception area, retail space, bar, nightclub,

restaurant, hotel, entertainment venue or office space.]

"Licensed facility."  As defined in 4 Pa.C.S. § 1103 

(relating to definitions).

"Night club."  A public hall or hall for which admission is

generally charged and which is primarily or predominantly

devoted to dancing or to shows or cabarets as opposed to a

facility that is primarily a bar, tavern or dining facility.

"Private club."  An organization [which is any of the

following:] including, but not limited to:

(1)  A reputable group of individuals associated together

as an organization for legitimate purposes of mutual benefit,

entertainment, fellowship or lawful convenience. [which does

all of the following:

(i)  Regularly and exclusively occupies, as owner or

lessee, a clubhouse or quarter for the use of its

members.

(ii)  Holds regular meetings; conducts its business

through officers regularly elected; admits members by

written application, investigation and ballot; and

charges and collects dues from elected members.

(iii)  Has been in continuous existence for a period

of ten years as such an organization.]

(2)  A volunteer ambulance service.

(3)  A volunteer fire company.

(4)  A volunteer rescue company.

"Public meeting."  A meeting open to the public. The term

includes a meeting under 65 Pa.C.S. Ch. 7 (relating to open

meetings).

"Public place."  An enclosed area which serves as a

workplace, commercial establishment or an area where the public

is invited or permitted. The term includes:

(1)  A facility which provides education, food or health

care-related services.

(2)  A vehicle used for mass transportation. This

paragraph includes a train, subway, bus, including a

chartered bus, plane, taxicab and limousine.

(3)  A train station, subway station or bus station.

(4)  A public facility. This paragraph includes a

facility to which the public is invited or in which the

public is permitted and a private home which provides child-

care or adult day-care services.

(5)  A sports or recreational facility, theater or

performance establishment.

(6)  A full service truck stop.

(7)  A residential facility.

(8)  A private club.

(9)  A drinking establishment.

(10)  A gaming floor.

(11)  Any outdoor deck, patio or similar outdoor service

area which is part of a food or drinking establishment.

"Residential facilities."  The term includes any of the

following:

(1)  A long-term care facility regulated under 42 CFR

483.15 (relating to quality of life).

(2)  Residential adult care facility.

(3)  Community mental health care facility.

(4)  Drug or alcohol facility.

(5)  Day treatment programs.

"Smoking."  The carrying by a person of a lighted cigar,

cigarette, pipe or other lighted smoking device.

"Tobacco shop."  A business establishment whose sales of

tobacco and tobacco-related products, including cigars, pipe

tobacco and smoking accessories, comprise at least 50% of the

gross annual sales. This term does not include a stand-alone

kiosk or establishment comprised solely of cigarette vending

machines.

"Volunteer ambulance service."  As defined in section 102 of

the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer

Fire Company and Volunteer Ambulance Service Grant Act.

"Volunteer fire company."  As defined in section 102 of the

act of July 31, 2003 (P.L.73, No.17), known as the Volunteer

Fire Company and Volunteer Ambulance Service Grant Act.

"Volunteer rescue company."  As defined in section 102 of the

act of July 31, 2003 (P.L.73, No.17), known as the Volunteer

Fire Company and Volunteer Ambulance Service Grant Act.

"Workplace."  An indoor area serving as a place of

employment, occupation, business, trade, craft, professional or

volunteer activity.

Section 3.  Prohibition.

* * *

(b)  Exceptions.--Subsection (a) shall not apply to any of

the following:

(1)  A private home, private residence or private vehicle

unless the private home, private residence or private vehicle

is being used at the time for the provision of child-care

services, adult day-care services or services related to the

care of children and youth in State or county custody.

(2)  Designated quarters[:

(i)]  within a lodging establishment which are

available for rent to guests accounting for no more than

25% of the total number of lodging units within a single

lodging establishment.[; or

(ii)  within a full-service truck stop.]

(3)  A tobacco shop.

(4)  A workplace of a manufacturer, importer or

wholesaler of tobacco products; a manufacturer of tobacco-

related products, including lighters; a tobacco leaf dealer

or processor; or a tobacco storage facility.

[(5)  Any of the following residential facilities:

(i)  A long-term care facility regulated under 42 CFR

483.15 (relating to quality of life). This subparagraph

shall not apply if 42 CFR 483.15 is abrogated or expires.

(ii)  A separate enclosed room or designated smoking

room in a residential adult care facility, community

mental health care facility, drug and alcohol facility or

other residential health care facility not covered under

subparagraph (i).

(iii)  A designated smoking room in a facility which

provides day treatment programs.

(6)  Subject to subsection (c)(2), a private club, except

where the club is:

(i)  open to the public through general advertisement

for a club-sponsored event; or

(ii)  leased or used for a private event which is not

club sponsored.

(7)  A place where a fundraiser is conducted by a

nonprofit and charitable organization one time per year if

all of the following apply:

(i)  The place is separate from other public areas

during the event.

(ii)  Food and beverages are available to attendees.

(iii)  Individuals under 18 years of age are not

permitted to attend.

(iv)  Cigars are sold, auctioned or given as gifts,

and cigars are a feature of the event.

(8)  An exhibition hall, conference room, catering hall

or similar facility used exclusively for an event to which

the public is invited for the primary purpose of promoting or

sampling tobacco products, subject to the following:

(i)  All of the following must be met:

(A)  Service of food and drink is incidental.

(B)  The sponsor or organizer gives notice in all

advertisements and other promotional materials that

smoking will not be restricted.

(C)  At least 75% of all products displayed or

distributed at the event are tobacco or tobacco-

related products.

(D)  Notice that smoking will not be restricted

is prominently posted at the entrance to the

facility.

(ii)  A single retailer, manufacturer or distributor

of tobacco may not conduct more than six days of a

promotional event under this paragraph in any calendar

year.]

(9)  A cigar bar.

[(10)  A drinking establishment.

(11)  Unless otherwise increased under this paragraph,

25% of the gaming floor at a licensed facility. No earlier

than 90 days following the effective date of this section or

the date of commencement of slot machine operations at a

licensed facility, whichever is later, a licensed facility

shall request a report from the Department of Revenue that

analyzes the gross terminal revenue per slot machine unit in

operation at the licensed facility within the 90-day period

preceding the request. If the report shows that the average

gross terminal revenue per slot machine unit in the

designated smoking area equals or exceeds the average gross

terminal revenue per slot machine unit in the designated

nonsmoking area, the licensed facility may increase the

designated smoking area of the gaming floor in proportion to

the percentage difference in revenue. A licensed facility may

request this report from the Department of Revenue on a

quarterly basis and may increase the designated smoking area

of the gaming floor accordingly. At no time may the

designated smoking area exceed 50% of the gaming floor. The

board shall have jurisdiction to verify the gross terminal

revenues included in the report to ensure compliance with the

requirements under this paragraph. Movement of the licensed

facility from a temporary facility to a permanent facility

shall not require the licensed facility to revert to the

minimum percentage set forth under this paragraph.]

(12)  A designated outdoor smoking area within the

confines of a sports or recreational facility, theater or

performance establishment.

(c)  Conditions and qualifications for exceptions.--

[(1)]  In order to be excepted under subsection (b), a

[drinking establishment,] cigar bar or tobacco shop must

submit a letter, accompanied by verifiable supporting

documentation,to the department claiming an exception under

subsection (b). Exception shall be based upon the

establishment's books, accounts, revenues or receipts,

including those reported to the Department of Revenue for

sales tax purposes, from the previous year or stated

projected annual revenues, which shall be verified within six

months.

[(2)  In order to qualify for the exception under

subsection (b)(6), a private club must take and record a vote

of its officers under the bylaws to address smoking in the

private club's facilities.]

Section 4.  Signage.

"Smoking Permitted" or "No Smoking" signs or the

international "No Smoking" symbol, which consists of a pictorial

representation of a burning cigarette in a circle with a bar

across it, shall be prominently posted and properly maintained

where smoking is regulated by this act by the owner, operator,

manager or other person having control of the area. A "Smoking

Permitted" sign shall be prominently posted and maintained at

every entrance to a public place where smoking is permitted

under this act.

Section 5.  Enforcement.

* * *

(d)  Access to records.--A [drinking establishment,] cigar

bar and tobacco shop shall make available all books, accounts,

revenues, receipts and other information to the department, the

Department of Revenue, the State licensing agency or a county

board of health as necessary to enforce this act. All

information submitted to the Department of Health, a county

board or other Commonwealth agency with enforcement duties under

this act[, including information to verify the on-site food

consumption of a drinking establishment,] shall be confidential

and shall not be subject to the [act of June 21, 1957 (P.L.390,

No.212), referred to as the Right-to-Know Law] act of February

14, 2008 (P.L.6, No.3), known as the Right-to-Know Law.

Section 6.  Violations, affirmative defenses and penalties.

* * *

(c)  Commonwealth administrative penalties.--

(1)  If the department or a State licensing agency [or a

county board of health] determines that a person has violated

subsection (a), the person shall be subject to a penalty not

to exceed $250.

(2)  If the department or a State licensing agency [or a

county board of health] determines that a person has violated

subsection (a) within one year of receiving a penalty under

paragraph (1), the person shall be subject to a penalty not

to exceed $500.

(3)  If the department or a State licensing agency [or a

county board of health] determines that a person violated

subsection (a) within one year of receiving a penalty under

paragraph (2), the person shall be subject to a penalty not

to exceed $1,000.

(4)  This subsection is subject to 2 Pa.C.S. (relating to

administrative law and procedure).

(5)  The penalties collected under this subsection shall

be retained by the department or the State licensing agency

initiating the enforcement action.

* * *

Section 10.  Administration.

(a)  Regulations.--The department shall promulgate

regulations to implement this act.

(b)  Revision of forms.--The Department of Revenue may revise

the form for reporting sales tax revenue to require separate

reporting of sales of [alcohol and] tobacco and tobacco-related

products for purposes of claiming exemptions under this act.

Section 3.  Section 11 of the act is repealed:

[Section 11.  Preemption of local ordinances.

(a)  General rule.--Except as set forth in subsection (b),

the following apply:

(1)  This act shall supersede any ordinance, resolution

or regulation adopted by a political subdivision concerning

smoking in a public place.

(2)  No political subdivision shall have the authority to

adopt or enforce any ordinance, regulation or resolution

which is in conflict with this act.

(b)  Exception.--Subsection (a) shall not apply to a city of

the first class. A city of the first class may not change or

amend its ordinance to conflict with any provision of this act.]

Section 4.  The act is amended by adding a section to read:

Section 12.  Effect on local rules and ordinances.

This act shall not be construed to restrict the power of a

political subdivision to adopt and enforce any rule or ordinance

that complies with at least the minimum applicable standards set

forth in this act.

Section 5.  Sections 29 and 30 of the act are amended to

read:

Section [29] 13.  [Repeal] Repeals.

(a)  Intent.--The General Assembly declares that the repeal

under subsection (b) is necessary to effectuate this act.

(b)  [Provision] Provisions.--

(1)  Section 10.1 of the act of April 27, 1927 (P.L.465,

No.299), referred to as the Fire and Panic Act, is repealed.

(2)  Section 15.1 of the Fire and Panic Act is repealed

insofar as it refers to section 10.1 of that act and to the

extent of any inconsistency with this act.

Section [30] 14.  Effective date.

This act shall take effect in 90 days.

Section 6.  This act shall take effect in 60 days.