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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY SCAVELLO, BOYD, D. COSTA, J. EVANS, EVERETT, FRANKEL, GINGRICH, MURT, SWANGER, VULAKOVICH AND YOUNGBLOOD, MARCH 1, 2011 |
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| REFERRED TO COMMITTEE ON HUMAN SERVICES, MARCH 1, 2011 |
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| AN ACT |
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1 | Amending the act of June 13, 2008 (P.L.182, No.27), entitled "An |
2 | act regulating smoking in this Commonwealth; imposing powers |
3 | and duties on the Department of Health and local boards of |
4 | health; providing penalties; preempting local action; and |
5 | making a related repeal," further prohibiting smoking in |
6 | public places; providing for local ordinances; and making a |
7 | related repeal of the Fire and Panic Act. |
8 | The General Assembly of the Commonwealth of Pennsylvania |
9 | hereby enacts as follows: |
10 | Section 1. The title of the act of June 13, 2008 (P.L.182, |
11 | No.27), known as the Clean Indoor Air Act, is amended to read: |
12 | AN ACT |
13 | Regulating smoking in this Commonwealth; imposing powers and |
14 | duties on the Department of Health and local boards of |
15 | health; providing penalties; [preempting] repealing |
16 | provisions relating to preemption of local action; providing |
17 | for effect on local ordinances; and making [a related repeal] |
18 | related repeals. |
19 | Section 2. Sections 2, 3(b) and (c), 4, 5(d), 6(c) and 10 of |
20 | the act are amended to read: |
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1 | Section 2. Definitions. |
2 | The following words and phrases when used in this act shall |
3 | have the meanings given to them in this section unless the |
4 | context clearly indicates otherwise: |
5 | "Cigar bar." Any of the following: |
6 | (1) An establishment which, on [the effective date of |
7 | this section] September 11, 2008, operates pursuant to an |
8 | eating place retail dispenser's or restaurant liquor license |
9 | under the act of April 12, 1951 (P.L.90, No.21), known as the |
10 | Liquor Code, and is physically connected by a door, |
11 | passageway or other opening and directly adjacent to a |
12 | tobacco shop. |
13 | (2) An establishment which, at any time, operates |
14 | pursuant to an eating place retail dispenser's license, malt |
15 | or brewed beverage distributor's license or restaurant liquor |
16 | license under the Liquor Code, and has total annual sales of |
17 | tobacco products, including tobacco, accessories or cigar |
18 | storage lockers or humidors of at least 15% of the combined |
19 | gross sales of the establishment. |
20 | "Department." The Department of Health of the Commonwealth. |
21 | "Drinking establishment." [Any of the following: |
22 | (1)] An establishment which[: |
23 | (i)] operates pursuant to an eating place retail |
24 | dispenser's license, restaurant liquor license or retail |
25 | dispenser's license under the act of April 12, 1951 |
26 | (P.L.90, No.21), known as the Liquor Code[;]. The term |
27 | also includes a nightclub. |
28 | [(ii) has total annual sales of food sold for on- |
29 | premises consumption of less than or equal to 20% of the |
30 | combined gross sales of the establishment; and |
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1 | (iii) does not permit individuals under 18 years of |
2 | age. |
3 | (2) An enclosed area within an establishment which, on |
4 | the effective date of this section: |
5 | (i) operates pursuant to an eating place retail |
6 | dispenser's license, restaurant liquor license or retail |
7 | dispenser's license under the Liquor Code; |
8 | (ii) is a physically connected or directly adjacent |
9 | enclosed area which is separate from the eating area, has |
10 | a separate air system and has a separate outside |
11 | entrance; |
12 | (iii) has total annual sales of food sold for on- |
13 | premises consumption of less than or equal to 20% of the |
14 | combined gross sales within the permitted smoking area of |
15 | the establishment; and |
16 | (iv) does not permit individuals under 18 years of |
17 | age. |
18 | The term does not include a nightclub.] |
19 | "Full-service truck stop." An establishment catering to |
20 | long-haul truck drivers that provides shower facilities for a |
21 | fee. |
22 | "Gaming floor." Any portion of a licensed facility where |
23 | slot machines have been installed for use or play as approved by |
24 | the Pennsylvania Gaming Control Board. [The term does not |
25 | include an area adjacent to the gaming floor, including any |
26 | hallway, reception area, retail space, bar, nightclub, |
27 | restaurant, hotel, entertainment venue or office space.] |
28 | "Licensed facility." As defined in 4 Pa.C.S. § 1103 |
29 | (relating to definitions). |
30 | "Night club." A public hall or hall for which admission is |
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1 | generally charged and which is primarily or predominantly |
2 | devoted to dancing or to shows or cabarets as opposed to a |
3 | facility that is primarily a bar, tavern or dining facility. |
4 | "Private club." An organization [which is any of the |
5 | following:] including, but not limited to: |
6 | (1) A reputable group of individuals associated together |
7 | as an organization for legitimate purposes of mutual benefit, |
8 | entertainment, fellowship or lawful convenience [which does |
9 | all of the following: |
10 | (i) Regularly and exclusively occupies, as owner or |
11 | lessee, a clubhouse or quarter for the use of its |
12 | members. |
13 | (ii) Holds regular meetings; conducts its business |
14 | through officers regularly elected; admits members by |
15 | written application, investigation and ballot; and |
16 | charges and collects dues from elected members. |
17 | (iii) Has been in continuous existence for a period |
18 | of ten years as such an organization]. |
19 | (2) A volunteer ambulance service. |
20 | (3) A volunteer fire company. |
21 | (4) A volunteer rescue company. |
22 | "Public meeting." A meeting open to the public. The term |
23 | includes a meeting under 65 Pa.C.S. Ch. 7 (relating to open |
24 | meetings). |
25 | "Public place." An enclosed area which serves as a |
26 | workplace, commercial establishment or an area where the public |
27 | is invited or permitted. The term includes: |
28 | (1) A facility which provides education, food or health |
29 | care-related services. |
30 | (2) A vehicle used for mass transportation. This |
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1 | paragraph includes a train, subway, bus, including a |
2 | chartered bus, plane, taxicab and limousine. |
3 | (3) A train station, subway station or bus station. |
4 | (4) A public facility. This paragraph includes a |
5 | facility to which the public is invited or in which the |
6 | public is permitted and a private home which provides child- |
7 | care or adult day-care services. |
8 | (5) A sports or recreational facility, theater or |
9 | performance establishment. |
10 | (6) A full service truck stop. |
11 | (7) A residential facility. |
12 | (8) A private club. |
13 | (9) A drinking establishment. |
14 | (10) A gaming floor. |
15 | (11) Any outdoor deck, patio or similar outdoor service |
16 | area which is part of a food or drinking establishment. |
17 | "Residential facilities." The term includes any of the |
18 | following: |
19 | (1) A long-term care facility regulated under 42 CFR |
20 | 483.15 (relating to quality of life). |
21 | (2) Residential adult care facility. |
22 | (3) Community mental health care facility. |
23 | (4) Drug or alcohol facility. |
24 | (5) Day treatment programs. |
25 | "Smoking." The carrying by a person of a lighted cigar, |
26 | cigarette, pipe or other lighted smoking device. |
27 | "Tobacco shop." A business establishment whose sales of |
28 | tobacco and tobacco-related products, including cigars, pipe |
29 | tobacco and smoking accessories, comprise at least 50% of the |
30 | gross annual sales. This term does not include a stand-alone |
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1 | kiosk or establishment comprised solely of cigarette vending |
2 | machines. |
3 | "Volunteer ambulance service." As defined in section 102 of |
4 | the act of July 31, 2003 (P.L.73, No.17), known as the Volunteer |
5 | Fire Company and Volunteer Ambulance Service Grant Act. |
6 | "Volunteer fire company." As defined in section 102 of the |
7 | act of July 31, 2003 (P.L.73, No.17), known as the Volunteer |
8 | Fire Company and Volunteer Ambulance Service Grant Act. |
9 | "Volunteer rescue company." As defined in section 102 of the |
10 | act of July 31, 2003 (P.L.73, No.17), known as the Volunteer |
11 | Fire Company and Volunteer Ambulance Service Grant Act. |
12 | "Workplace." An indoor area serving as a place of |
13 | employment, occupation, business, trade, craft, professional or |
14 | volunteer activity. |
15 | Section 3. Prohibition. |
16 | * * * |
17 | (b) Exceptions.--Subsection (a) shall not apply to any of |
18 | the following: |
19 | (1) A private home, private residence or private vehicle |
20 | unless the private home, private residence or private vehicle |
21 | is being used at the time for the provision of child-care |
22 | services, adult day-care services or services related to the |
23 | care of children and youth in State or county custody. |
24 | (2) Designated quarters[: |
25 | (i)] within a lodging establishment which are |
26 | available for rent to guests accounting for no more than |
27 | 25% of the total number of lodging units within a single |
28 | lodging establishment[; or |
29 | (ii) within a full-service truck stop]. |
30 | (3) A tobacco shop. |
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1 | (4) A workplace of a manufacturer, importer or |
2 | wholesaler of tobacco products; a manufacturer of tobacco- |
3 | related products, including lighters; a tobacco leaf dealer |
4 | or processor; or a tobacco storage facility. |
5 | [(5) Any of the following residential facilities: |
6 | (i) A long-term care facility regulated under 42 CFR |
7 | 483.15 (relating to quality of life). This subparagraph |
8 | shall not apply if 42 CFR 483.15 is abrogated or expires. |
9 | (ii) A separate enclosed room or designated smoking |
10 | room in a residential adult care facility, community |
11 | mental health care facility, drug and alcohol facility or |
12 | other residential health care facility not covered under |
13 | subparagraph (i). |
14 | (iii) A designated smoking room in a facility which |
15 | provides day treatment programs. |
16 | (6) Subject to subsection (c)(2), a private club, except |
17 | where the club is: |
18 | (i) open to the public through general advertisement |
19 | for a club-sponsored event; or |
20 | (ii) leased or used for a private event which is not |
21 | club sponsored. |
22 | (7) A place where a fundraiser is conducted by a |
23 | nonprofit and charitable organization one time per year if |
24 | all of the following apply: |
25 | (i) The place is separate from other public areas |
26 | during the event. |
27 | (ii) Food and beverages are available to attendees. |
28 | (iii) Individuals under 18 years of age are not |
29 | permitted to attend. |
30 | (iv) Cigars are sold, auctioned or given as gifts, |
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1 | and cigars are a feature of the event. |
2 | (8) An exhibition hall, conference room, catering hall |
3 | or similar facility used exclusively for an event to which |
4 | the public is invited for the primary purpose of promoting or |
5 | sampling tobacco products, subject to the following: |
6 | (i) All of the following must be met: |
7 | (A) Service of food and drink is incidental. |
8 | (B) The sponsor or organizer gives notice in all |
9 | advertisements and other promotional materials that |
10 | smoking will not be restricted. |
11 | (C) At least 75% of all products displayed or |
12 | distributed at the event are tobacco or tobacco- |
13 | related products. |
14 | (D) Notice that smoking will not be restricted |
15 | is prominently posted at the entrance to the |
16 | facility. |
17 | (ii) A single retailer, manufacturer or distributor |
18 | of tobacco may not conduct more than six days of a |
19 | promotional event under this paragraph in any calendar |
20 | year.] |
21 | (9) A cigar bar. |
22 | [(10) A drinking establishment. |
23 | (11) Unless otherwise increased under this paragraph, |
24 | 25% of the gaming floor at a licensed facility. No earlier |
25 | than 90 days following the effective date of this section or |
26 | the date of commencement of slot machine operations at a |
27 | licensed facility, whichever is later, a licensed facility |
28 | shall request a report from the Department of Revenue that |
29 | analyzes the gross terminal revenue per slot machine unit in |
30 | operation at the licensed facility within the 90-day period |
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1 | preceding the request. If the report shows that the average |
2 | gross terminal revenue per slot machine unit in the |
3 | designated smoking area equals or exceeds the average gross |
4 | terminal revenue per slot machine unit in the designated |
5 | nonsmoking area, the licensed facility may increase the |
6 | designated smoking area of the gaming floor in proportion to |
7 | the percentage difference in revenue. A licensed facility may |
8 | request this report from the Department of Revenue on a |
9 | quarterly basis and may increase the designated smoking area |
10 | of the gaming floor accordingly. At no time may the |
11 | designated smoking area exceed 50% of the gaming floor. The |
12 | board shall have jurisdiction to verify the gross terminal |
13 | revenues included in the report to ensure compliance with the |
14 | requirements under this paragraph. Movement of the licensed |
15 | facility from a temporary facility to a permanent facility |
16 | shall not require the licensed facility to revert to the |
17 | minimum percentage set forth under this paragraph.] |
18 | (12) A designated outdoor smoking area within the |
19 | confines of a sports or recreational facility, theater or |
20 | performance establishment. |
21 | (c) Conditions and qualifications for exceptions.-- |
22 | [(1)] In order to be excepted under subsection (b), a |
23 | [drinking establishment,] cigar bar or tobacco shop must |
24 | submit a letter, accompanied by verifiable supporting |
25 | documentation,to the department claiming an exception under |
26 | subsection (b). Exception shall be based upon the |
27 | establishment's books, accounts, revenues or receipts, |
28 | including those reported to the Department of Revenue for |
29 | sales tax purposes, from the previous year or stated |
30 | projected annual revenues, which shall be verified within six |
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1 | months. |
2 | [(2) In order to qualify for the exception under |
3 | subsection (b)(6), a private club must take and record a vote |
4 | of its officers under the bylaws to address smoking in the |
5 | private club's facilities.] |
6 | Section 4. Signage. |
7 | "Smoking Permitted" 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 act by the owner, operator, |
12 | manager or other person having control of the area. A "Smoking |
13 | Permitted" sign shall be prominently posted and maintained at |
14 | every entrance to a public place where smoking is permitted |
15 | under this act. |
16 | Section 5. Enforcement. |
17 | * * * |
18 | (d) Access to records.--A [drinking establishment,] cigar |
19 | bar and tobacco shop shall make available all books, accounts, |
20 | revenues, receipts and other information to the department, the |
21 | Department of Revenue, the State licensing agency or a county |
22 | board of health as necessary to enforce this act. All |
23 | information submitted to the Department of Health, a county |
24 | board or other Commonwealth agency with enforcement duties under |
25 | this act[, including information to verify the on-site food |
26 | consumption of a drinking establishment,] shall be confidential |
27 | and shall not be subject to the [act of June 21, 1957 (P.L.390, |
28 | No.212), referred to as the Right-to-Know Law] act of February |
29 | 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law. |
30 | Section 6. Violations, affirmative defenses and penalties. |
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1 | * * * |
2 | (c) Commonwealth administrative penalties.-- |
3 | (1) If the department or a State licensing agency [or a |
4 | county board of health] determines that a person has violated |
5 | subsection (a), the person shall be subject to a penalty not |
6 | to exceed $250. |
7 | (2) If the department or a State licensing agency [or a |
8 | county board of health] determines that a person has violated |
9 | subsection (a) within one year of receiving a penalty under |
10 | paragraph (1), the person shall be subject to a penalty not |
11 | to exceed $500. |
12 | (3) If the department or a State licensing agency [or a |
13 | county board of health] determines that a person violated |
14 | subsection (a) within one year of receiving a penalty under |
15 | paragraph (2), the person shall be subject to a penalty not |
16 | to exceed $1,000. |
17 | (4) This subsection is subject to 2 Pa.C.S. (relating to |
18 | administrative law and procedure). |
19 | (5) The penalties collected under this subsection shall |
20 | be retained by the department or the State licensing agency |
21 | initiating the enforcement action. |
22 | * * * |
23 | Section 10. Administration. |
24 | (a) Regulations.--The department shall promulgate |
25 | regulations to implement this act. |
26 | (b) Revision of forms.--The Department of Revenue may revise |
27 | the form for reporting sales tax revenue to require separate |
28 | reporting of sales of [alcohol and] tobacco and tobacco-related |
29 | products for purposes of claiming exemptions under this act. |
30 | Section 3. Section 11 of the act is repealed: |
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1 | [Section 11. Preemption of local ordinances. |
2 | (a) General rule.--Except as set forth in subsection (b), |
3 | the following apply: |
4 | (1) This act shall supersede any ordinance, resolution |
5 | or regulation adopted by a political subdivision concerning |
6 | smoking in a public place. |
7 | (2) No political subdivision shall have the authority to |
8 | adopt or enforce any ordinance, regulation or resolution |
9 | which is in conflict with this act. |
10 | (b) Exception.--Subsection (a) shall not apply to a city of |
11 | the first class. A city of the first class may not change or |
12 | amend its ordinance to conflict with any provision of this act.] |
13 | Section 4. The act is amended by adding a section to read: |
14 | Section 12. Effect on local rules and ordinances. |
15 | This act shall not be construed to restrict the power of a |
16 | political subdivision to adopt and enforce any rule or ordinance |
17 | that complies with at least the minimum applicable standards set |
18 | forth in this act. |
19 | Section 5. Sections 29 and 30 of the act are amended to |
20 | read: |
21 | Section [29] 13. [Repeal] Repeals. |
22 | (a) Intent.--The General Assembly declares that the repeal |
23 | under subsection (b) is necessary to effectuate this act. |
24 | (b) [Provision] Provisions.-- |
25 | (1) Section 10.1 of the act of April 27, 1927 (P.L.465, |
26 | No.299), referred to as the Fire and Panic Act, is repealed. |
27 | (2) Section 15.1 of the Fire and Panic Act is repealed |
28 | insofar as it refers to section 10.1 of that act and to the |
29 | extent of any inconsistency with this act. |
30 | Section [30] 14. Effective date. |
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1 | This act shall take effect in 90 days. |
2 | Section 6. This act shall take effect in 60 days. |
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