PRINTER'S NO. 4110
No. 2723 Session of 2004
INTRODUCED BY LYNCH, S. E. CORNELL, FRANKEL, JOSEPHS, ROEBUCK,
WASHINGTON, LEACH AND CURRY, JUNE 17, 2004
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES,
JUNE 17, 2004
AN ACT
1 Amending the act of April 27, 1927 (P.L.465, No.299), entitled,
2 as amended, "An act to provide for the safety of persons
3 employed, housed, or assembled in certain buildings and
4 structures by requiring certain construction and ways of
5 egress, equipment, and maintenance; providing for the
6 licensing of projectionists, except in cities of the first
7 class and second class; requiring the submission of plans for
8 examination and approval; providing for the promulgation of
9 rules and regulations for the enforcement of this act;
10 providing for the enforcement of this act by the Department
11 of Labor and Industry, the Department of Health, boards of
12 school directors and, in certain cases, by the chiefs of fire
13 departments in cities of the third class; providing penalties
14 for violations of the provisions of this act; and repealing
15 certain acts," expanding the list of public places wherein
16 smoking is prohibited; further providing for smoking in
17 restaurants and in the workplace; and providing penalties.
18 The General Assembly finds as follows:
19 (1) The Environmental Protection Agency has recently
20 classified second-hand tobacco smoke as a Class A carcinogen,
21 a classification reserved for the most lethal environmental
22 hazards, such as asbestos, benzene, formaldehyde and radon.
23 (2) Second-hand smoke contains over 4,000 chemicals. Of
24 those chemicals, 200 are poisons and 43 cause cancer.
25 (3) Research indicates that 50% of all cancers are
1 tobacco related.
2 (4) Smoking causes disease in nearly every organ of the
3 body and is linked to leukemia and cancers of the cervix,
4 kidney, pancreas and stomach.
5 (5) Second-hand smoke causes close to 54,000 deaths
6 annually in the United States.
7 (6) Second-hand smoke is especially harmful to young
8 children. Three hundred thousand children who have been
9 exposed to second-hand smoke have increased frequency of
10 lower respiratory infections such as pneumonia, bronchitis
11 and bronchiolitis, resulting in up to 15,000 hospitalizations
12 per year for children under 18 months of age.
13 (7) Second-hand smoke causes middle ear infections in
14 children, the most common cause of childhood operations and
15 of childhood hearing loss.
16 (8) Children who breathe second-hand smoke are more
17 likely to develop asthma. Children who have asthma and
18 breathe second-hand smoke have more asthma attacks.
19 (9) Compared to 75% of white collar workers, only 43% of
20 the 6.6 million food preparation and service workers are
21 covered by smoke free policies.
22 (10) Fewer than 13% of bartenders and 28% of waitstaff
23 are employed in a smoke free workplace.
24 (11) Studies indicate that a smoke free environment does
25 not harm business and may have a positive impact on business.
26 The General Assembly of the Commonwealth of Pennsylvania
27 hereby enacts as follows:
28 Section 1. Section 10.1 of the act of April 27, 1927
29 (P.L.465, No.299), referred to as the Fire and Panic Act, added
30 December 21, 1988 (P.L.1315, No.168), is amended to read:
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1 Section 10.1. Clean Indoor Air.--(a) The purpose of this
2 section is to protect the public health [and to provide for the
3 comfort of all parties by regulating and controlling smoking in
4 certain public places and at public meetings and in certain
5 workplaces.], the comfort of all parties and the environment by
6 prohibiting smoking in public places, public meetings and
7 workplaces, except in designated smoking areas as provided for
8 in this section.
9 (b) As used in this section, the following words and phrases
10 shall have the meanings given to them in this subsection:
11 ["Bar areas" means those areas which are devoted to the
12 serving of alcoholic beverages for consumption by guests on the
13 premises and in which the serving of food is only incidental to
14 the consumption of such beverages.]
15 "Public meetings" [means] include, but are not limited to,
16 all meetings open to the public pursuant to the act of July 3,
17 1986 (P.L.388, No.84), known as the "Sunshine Act."
18 "Public place" means either of the following:
19 (1) An [enclosed,] indoor area owned, leased or operated by
20 a State or local governmental agency and used by the general
21 public or serving as a place of work for public employes or a
22 meeting place for a public body, including, but not limited to,
23 an office, educational facility, health facility, auditorium,
24 arena, meeting room, exhibition hall, restroom, waiting area,
25 hallway, lobby, rotunda or public conveyance.
26 (2) An [enclosed,] indoor area which is not owned or
27 operated by a State or local governmental agency, and which is
28 used by the general public [and which is], including, but not
29 limited to, any of the following:
30 (i) A workplace.
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1 (ii) An educational facility.
2 (iii) A health facility.
3 (iv) An auditorium.
4 (v) An arena.
5 (vi) A theater.
6 (vii) A museum.
7 (viii) A restaurant.
8 (ix) A concert hall.
9 (x) Any other facility during the period of its use for a
10 performance or exhibit of the arts.
11 (xi) A commercial establishment.
12 (xii) A retail store.
13 (xiii) A service line.
14 (xiv) A grocery store.
15 (xv) A bingo hall.
16 (xvi) A waiting room or area.
17 (xvii) A hallway.
18 (xviii) A polling place.
19 (xix) A restroom.
20 (xx) A sports arena.
21 (xxi) A convention hall.
22 (xxii) An elevator.
23 (xxiii) Public transit.
24 (xxiv) A public food assistance program and facility.
25 (xxv) A shopping mall.
26 (xxvi) A public meeting not covered by the "Sunshine Act."
27 (xxvii) A rotunda.
28 (xxviii) An exhibition hall.
29 (xxix) A lobby.
30 "Restaurant" means any eating establishment which offers food
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1 for sale to the public.
2 "Service line" means any line at which one or more persons
3 are waiting for or receiving service of any kind, whether or not
4 such service involves the exchange of money.
5 "Smoking" means the carrying by a person of a lighted cigar,
6 cigarette, pipe or other lighted smoking device.
7 "Smoking area" means a separately enclosed and separately
8 ventilated room of a building:
9 (1) in which air from the room is exhausted directly outside
10 and not recirculated within the building or mixed with the
11 general diluted ventilation for the building; and
12 (2) which has a slight negative pressure to ensure airflow
13 into the room rather than back into the airspace of the rest of
14 the building.
15 "Sports arena" means a sports stadium, sports pavilion,
16 exhibition hall, gymnasium, health spa, boxing arena, swimming
17 pool, roller or ice rink, bowling alley or other similar place
18 where members of the general public assemble either to engage in
19 physical exercise, participate in athletic competition or
20 witness sports events.
21 "Workplace" means an [enclosed,] indoor area serving as a
22 place of employment, occupation, business, trade, craft [or],
23 profession or volunteer activity.
24 (c) No person shall smoke in [an area designated nonsmoking
25 by the proprietor or person in charge in a public place or at a
26 public meeting] a public place, public meeting or at the
27 workplace, except that the proprietor, person in charge or
28 employer may designate smoking areas that meet the requirements
29 of this section.
30 (d) The following places shall be exempt from this section:
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1 (1) Private social functions where the area utilized is
2 under the control of the sponsor and not the proprietor, except
3 areas owned, leased or operated by a State or local governmental
4 agency.
5 [(2) Factories, warehouses and similar places of work not
6 frequented by the general public.
7 (3) Restaurants seating fewer than seventy-five (75)
8 persons.
9 (4) Bar areas in a liquor licensee establishment.
10 (5) Areas in public places commonly referred to as lobbies
11 and hallways.
12 (6) Hotel and motel rooms.
13 (7) Retail stores, the primary business of which is the sale
14 of tobacco or tobacco-related products.]
15 (8) Private residences, except when used as child care or
16 health care facilities.
17 (d.1) Any owner, operator, manager or other person who
18 controls any establishment or facility described under
19 subsection (d) may declare that entire establishment or facility
20 nonsmoking.
21 (e) The [regulation] prohibition of smoking in all
22 restaurants [with seventy-five (75) or more seats] shall be
23 governed by the following:
24 (1) [Restaurants shall provide for their patrons smoking and
25 nonsmoking areas reasonably calculated to address the needs of
26 their clientele, the size of which may be increased or
27 decreased, by the proprietor or person in charge, according to
28 need.] The premises of all restaurants shall be totally
29 nonsmoking, except that the proprietors or persons in charge
30 thereof may designate smoking areas that meet the requirements
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1 of this section.
2 (2) Restaurants shall make reasonable efforts to prevent
3 smoking [in the designated nonsmoking section] by:
4 (i) [Posting] Removing all ashtrays and posting appropriate
5 signs which are readily visible. The color, size and placement
6 of the signs shall be left to the discretion of the proprietor
7 or person in charge in keeping with the decor or aesthetics of
8 the establishment.
9 (ii) [Arranging seating so that smokers and nonsmokers are
10 placed in contiguous groupings.
11 (iii) Asking smokers to refrain from smoking in the
12 nonsmoking areas.] Asking persons to refrain from smoking while
13 on the premises.
14 [(f) The regulation of smoking in restaurants with fewer
15 than seventy-five (75) seats shall be left to the discretion of
16 the proprietor, provided that:
17 (1) Restaurants which choose not to provide a nonsmoking
18 area nor develop a no-smoking policy based upon customer
19 preference shall post notice of such lack of policy at each
20 entranceway.
21 (2) Restaurants which choose to provide a nonsmoking area
22 shall develop a policy in accordance with subsection (e).]
23 (g) [Except as otherwise provided in this section,
24 employers] Employers shall develop, post [and], implement and
25 enforce a policy to regulate smoking in [the workplace, provided
26 that nothing in this section or any local law, rule or
27 regulation shall be construed as to impair or diminish or
28 otherwise affect any contractual agreement, collective
29 bargaining agreement, collective bargaining rights or collective
30 bargaining procedures] their workplaces, except that the
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1 employers, through collective bargaining procedure, if
2 applicable, may designate smoking areas that meet the
3 requirements of this section. The employer shall provide a copy
4 of the policy to any employe upon request.
5 (g.1) No person or employer shall discharge, refuse to hire
6 or in any manner retaliate against any employe or applicant for
7 employment because the employe or applicant exercises any right
8 to a smoke-free environment required by this act.
9 [(h) No proprietor or person in charge of a public place who
10 establishes a policy or designates areas pursuant to this
11 section shall be subject to any action in any court by any party
12 other than the Department of Health or local board or department
13 of health under this section.
14 (i) A violation of this section shall be punishable by a
15 civil fine of not more than fifty dollars ($50.00).
16 (j) The Department of Health shall promulgate and adopt
17 rules and regulations as are necessary and reasonable to
18 implement the provisions of this section.]
19 (k) 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 violations of this section.
22 (l) Any person or entity who violates this section commits a
23 summary offense and shall pay:
24 (1) A fine not exceeding one hundred ($100.00) for a first
25 violation.
26 (2) A fine not exceeding two hundred dollars ($200.00) for a
27 second violation of this section that occurs within one (1)
28 year.
29 (3) A fine not exceeding five hundred dollars ($500.00) for
30 each additional violation of this section that occurs within one
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1 (1) year.
2 (m) The Department of Health shall promulgate and adopt
3 rules and regulations as are necessary and reasonable to
4 implement the provisions of this section. The department shall
5 also engage in a continuing program to explain and clarify the
6 purposes and requirements of this section to citizens affected
7 by it, and to guide owners, operators and managers in their
8 compliance with it. The programs may include publication of a
9 brochure for affected businesses and individuals explaining the
10 provisions of this act.
11 (n) In any dispute arising under this section, the authority
12 adjudicating the dispute shall construe the provisions of this
13 act in favor of the health concerns of persons who do not engage
14 in smoking, whose concerns shall represent the public interest.
15 (o) This section shall apply throughout this Commonwealth,
16 but shall not supersede any existing ordinances, local laws,
17 rules or regulations which are more restrictive. Any
18 governmental body may adopt requirements to supplement this act
19 provided no such requirement shall in any way be less
20 restrictive than the requirements set forth in this act.
21 Section 2. Section 15.1 of the act is repealed.
22 Section 3. This act shall take effect in 60 days.
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