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Up In Smoke

Andy and I watched The Irishman this week and were laughing about all of the smoke breaks they had to take and how prominent cigarettes were at that time. I remembered my first job after college -almost everyone in the office smoked. I asked the owner once when they would start following the new “No-smoking” rule and after he took a drag and blew the smoke in my face, he said, “When someone makes me.”

After working there for 9 months with chronic bronchitis for about 8 of those months, I was happy to move on to a non-smoking office. Most might think it is a given that our workplace is non-smoking, but there are some rules and regulations you should be aware of to make sure you are in compliance.

Pennsylvania Workplace Smoking

Clean Indoor Air Act

The Pennsylvania Clean Indoor Air Act (35 Pa. Consol. Stat. Ann. §§ 637.1 – 637.11) prohibits individuals from engaging in smoking in a public place. Smoking is the carrying by a person of a lighted cigar, cigarette, pipe, or other lighted smoking device. A public place is an enclosed area which serves as a workplace, commercial establishment, or an area where the public is invited or permitted. A public place includes:

  • A facility that provides education, food, or health care-related services.
  • A vehicle used for mass transportation, including a train, subway, bus (including a chartered bus), plane, taxicab, and limousine.
  • A train station, subway station, or bus station.
  • A public facility, including a facility to which the public is invited or in which the public is permitted and a private home that provides child care or adult day care services.
  • A sports or recreational facility, theater, or performance establishment.

A workplace is an indoor area serving as a place of employment, occupation, business, trade, craft, professional, or volunteer activity.

Note: The act does not preclude the owner of a public or private property from prohibiting smoking on the property.

Exceptions

The smoking prohibitions do not apply to any of the following:

  • 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.
  • Designated quarters within either of the following:
    • Lodging establishments available for rent to guests accounting for no more than 25 percent of the total number of lodging units within a single lodging establishment.
    • Full service truck stops (establishments that cater to long-haul truck drivers) which provide shower facilities for a fee.
  • A tobacco shop. A tobacco shop is a business establishment whose sales of tobacco and tobacco related products, including cigars, pipe tobacco and smoking accessories, comprise of at least 50 percent of the gross annual sales. Tobacco shops do not include a stand-alone kiosk or establishment comprised solely of cigarette vending machines.
  • Any workplace of the following:
    • Manufacturer, importer, or wholesaler of tobacco products.
    • Manufacturer of tobacco-related products, including lighters.
    • Tobacco leaf dealer or processor.
    • Tobacco storage facility.
  • Any of the following residential facilities:
    • A long-term care facility regulated under 42 C.F.R. 483.15 (relating to quality of life). This does not apply if 42 C.F.R. 483.15 is abrogated or expires.
    • 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 otherwise covered.
    • A designated smoking room in a facility that provides day treatment programs.
  • A private club, except where the club is either of the following:
    • Open to the public through general advertisement for a club-sponsored event.
    • Leased or used for a private event that is not club sponsored.
  • A place where a fundraiser is conducted by a nonprofit and charitable organization one time per year if all of the following apply:
    • The place is separate from other public areas during the event.
    • Food and beverages are available to attendees.
    • Individuals under 18 years of age are not permitted to attend.
    • Cigars are sold, auctioned, or given as gifts and cigars are a feature of the event.
  • 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:
    • All of the following conditions must be met:
      • Service of food and drink is incidental.
      • The sponsor or organizer gives notice in all advertisements and other promotional materials that smoking will not be restricted.
      • At least 75 percent of all products displayed or distributed at the event are tobacco or tobacco-related products.
      • Notice that smoking will not be restricted is prominently posted at the entrance to the facility.
    • 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.
  • A cigar bar, which is an establishment that:
    • Operates pursuant to an eating place retail dispenser’s or restaurants liquor license, and is physically connected by a door, passageway, or other opening and directly adjacent to a tobacco shop.
    • At any time, operates pursuant to an eating place retail dispenser’s license, malt or brewed beverage distributor’s license, or restaurant liquor license, and has total annual sales of tobacco products, including tobacco, accessories, or cigar storage lockers or humidors of at least 15 percent of the combined gross sales of the establishment.
  • A drinking establishment, which is any of the following, but does not include a nightclub:
    • An establishment which:
      • Operates pursuant to an eating place license, restaurant license, or retail dispenser license.
      • Has total annual sales of food sold for on-premises consumption of less than or equal to 20 percent of the combined gross sales of the establishment.
      • Does not permit individuals under age 18.
    • An enclosed area within an establishment which:
      • Operates pursuant to an eating place license, restaurant license, or retail dispenser license.
      • Is a physically connected or directly adjacent enclosed area that is separate from the eating area, has a separate air system, and has a separate outside entrance.
      • Has total annual sales of food sold for on-premises consumption of less than or equal to 20 percent of the combined gross sales within the permitted smoking area of the establishment.
      • Does not permit individuals under age 18.
  • Twenty-five percent of the gaming floor at a licensed facility with specific stipulations. Additionally, at no time may the designated smoking area exceed 50 percent of the gaming floor. A gaming floor is any portion of a licensed facility where slot machines have been installed for use or play as approved by the Pennsylvania Gaming Control Board. A gaming floor 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.
  • A designated outdoor smoking area within the confines of a sports or recreational facility, theater, or performance establishment.

However, in order for an exception from the smoking prohibitions to apply, a drinking establishment, cigar bar, or tobacco shop must submit a letter, accompanied by verifiable supporting documentation, to the Pennsylvania Department of Health of the Commonwealth claiming an exception. The exception will be based upon the establishment’s books, accounts, revenues, or receipts, including those reported to the Pennsylvania Department of Revenue for sales tax purposes, from the previous year or stated projected annual revenues, which will be verified within six months.

Note: In order to qualify for the exception, a private club must take and record a vote of its officers under the bylaws to address smoking in the private club’s facilities. A private club is an organization that is any of the following:

  • 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:
    • Regularly and exclusively occupies, as owner or lessee, a clubhouse or quarter for the use of its members.
    • Holds regular meetings.
    • Conducts its business through officers regularly elected.
    • Admits members by written application, investigation, and ballot.
    • Charges and collects dues from elected members.
    • Has been in continuous existence for 10 years as such an organization.
  • A volunteer ambulance service.
  • A volunteer fire company.
  • A volunteer rescue company.

Required Posting and Recordkeeping

‘Smoking’ 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 the cigarette, must be prominently posted and properly maintained where smoking is regulated by law by the owner, operator, manager, or other person having control of the area. A ‘Smoking Permitted’ sign must be prominently posted and maintained at every entrance to a public place where smoking is permitted by law.

A drinking establishment, cigar bar, and tobacco shop must make available all books, accounts, revenues, receipts, and other information to the Department of Health of the Commonwealth, the Department of Revenue, state licensing agency, or county board of health as necessary to enforce the act. All information submitted to the Department of Health of the Commonwealth, county board, or other Commonwealth agency with enforcement duties under the act, including information to verify the on-site food consumption of a drinking establishment, is confidential and is not be subject to the Right-to-Know Law.

Retaliation Prohibited

A person may not discharge an employee, refuse to hire an applicant for employment, or retaliate against an employee because the individual exercises a right to a smoke-free environment as required under the act.

Enforcement and Penalties

A complaint regarding a possible violation of the act must be made to the appropriate law enforcement agency or to the Department of Health of the Commonwealth. A complaint to the department must be made by one of the following methods:

  • In writing.
  • By telephone call to the department’s toll-free telephone number.
  • By an electronic submission to the department’s regularly maintained Internet website.

Upon receipt of a complaint by the department, the following apply:

  • The department will investigate the complaint and enforce the act.
  • If the public place is subject to licensure by the Commonwealth, the department will refer the complaint to the appropriate licensing agency for investigation and enforcement of the act.

If a complaint is made to the department regarding a public place located in a county, the department will notify the county board of health. The county board of health will investigate the complaint and enforce the act. If the complaint is made to a law enforcement agency regarding a public place, the agency must investigate the complaint and enforce the act.

Specified Violations

All of the following are violations of the act:

  • Failure to post the required signage.
  • Permitting smoking in a public place where smoking is prohibited.
  • Smoking in a public place where smoking is prohibited.

If the Department of Health of the Commonwealth, a state licensing agency, or a county board of health determines that a person committed any of the aforementioned violations, the following Commonwealth and local administrative penalties apply:

  • The person is subject to a penalty of up to $250.
  • Within one year of receiving a penalty for failure to post the required signage, the person is subject to a penalty of up to $500.
  • Within one year of receiving a penalty for permitting smoking in a public place where smoking is prohibited, the person is subject to a penalty of up to $1,000.

However, the following are affirmative defenses to a prosecution or imposition of an administrative penalty:

  • When the violation occurred, the actual control of the public place was not exercised by the owner, operator, or manager but by a lessee.
  • The owner, operator, or manager made a good faith effort to prohibit smoking.

The owner, operator, or manager asserting the affirmative defense must do so in the form of a sworn affidavit setting forth the aforementioned relevant information.

The following criminal penalties apply:

  • A person that violates the act commits a summary offense and, upon conviction, will be sentenced to pay a fine of up to $250.
  • A person that violates the act a second time within one year of being sentenced commits a summary offense and, upon conviction, will be sentenced to pay a fine of up to $500.
  • A person that violates the act a third time within one year of being sentenced commits a summary offense and, upon conviction, will be sentenced to pay a fine of up to $1,000.