The PA smoking ban is just a few weeks old and there still seems to be a good amount of confusion over what is exempt from the ban, the process, and enforcement.

Kelly Kidd, the program manager for the NWPA Tobacco Control Program will hopefully shed some light on the ban, enforcement and other areas in this exclusive op-ed.

This op-ed for Erie Blogs is in response to the many people who are discussing the new Pennsylvania Clean Indoor Air Act (CIAA) and are looking for information regarding the Act. Before discussing the CIAA, I would like to tell you who I am and what role I play in the CIAA. My name is Kelly Kidd and I am the Program Manager for the NWPA Tobacco Control Program, a program that receives funding from the Pennsylvania Department of Health for tobacco control activities. Our program encompasses the 13 counties of NWPA, and we have been tasked with assisting in the education of businesses and the general public regarding what has already been interpreted for the CIAA.

I am not the legal interpreting agent of the law. The information provided to you in this piece is intended for educational purposes, and is a summary communication of what has been communicated from the Pennsylvania Department of Health (PADOH), the legal interpreting agent of the CIAA. You can read the law in its entirety, as well as the details of any of the interpretation documents and subsequent information, on the PADOH website at http://www.health.state.pa.us. Choose the Clean Indoor Air link.

Now that these disclaimers have been provided, let’s discuss the CIAA.

Effective date and whom the law applies to

The CIAA became effective on Thursday September 11, 2008.

The law applies to all PA businesses and organizations that have indoor areas, regardless of accessibility to the public or placement on the property (like a shed, garage, multiple buildings, etc), and applies to outdoor sporting and recreational facilities, and outdoor theater and performance venues. This also applies to external, enclosed “smoke shacks” and “butt huts” that many businesses have built for employees.

General outdoor property is not included in the act…sidewalks, patios, decks–anything not enclosed and not part of the outdoor areas described above.

Any individual business may independently decide to create, implement, and enforce a smoke free property policy. Should a business decide to address outdoor areas, and designate an outdoor smoking area in that policy, the PADOH recommends that an outdoor designated smoking area be at a distance of 20 feet from doors, windows, and air systems.

There is one exception to this section–Philadelphia. As a first class city in the state of PA, they were able to pass a more comprehensive ordinance under the previous CIAA. When the new CIAA was passed, Philadelphia was able to retain their ordinance. It is more comprehensive than the current CIAA.

Exceptions

The law does contain language that provides exceptions for certain types of indoor areas and for the outdoor areas stated in the previous paragraph.

All indoor and outdoor areas that may be permitted an exception must meet the definitions and requirements described in the CIAA, and qualify for the exception providing all stipulations for the stated indoor area within the CIAA are met, including but not limited to any action on the part of the business/entity to show that such exception is warranted. Exceptions listed are in summary form and include:

1) A private home, private residence or private vehicle except when used to provide child-care services, adult day-care services, or services related to the care of children and youth in State or county custody.
2) A percentage of designated quarters within a lodging establishment and designated lodging quarters in a truck stop
3) A tobacco shop
4) 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) Residential facilities
6) A private club
7) Nonprofit and charitable organization fundraisers that meet the stipulations described within the Act, where cigars are sold, auctioned or given as gifts, and cigars are a feature of the event
8) An event whose primary purpose is promoting or sampling tobacco products, held in a facility described in the Act, that meets the stipulations of the exception.
9) A cigar bar
10) A drinking establishment
11) A percentage of the gaming floor at a licensed facility
12) A designated outdoor smoking area within the confines of a sports or recreation facility, theater, or performance establishment

Again, keep in mind that this is a summary of the list, and that those entities which may be permitted an exception must meet the definitions of the business/organization type as described in the CIAA and PADOH interpretations, and must meet all requirements for exception.

It is important that a business/organization understand how they fall within the CIAA and what the requirements are for being granted an exception. In most cases, exceptions are not automatic. Assuming exception without proper action as described in the CIAA places a business at risk for violation penalties.

The CIAA and PADOH guidance documents describes definitions, exceptions, which exceptions require action, including the type of action and any timelines/deadlines for that action, and which exceptions do not require action.

Signage

All work places, public places, drinking establishments, eating establishments, private clubs, etc. require signage, even if you are a business that was smoke free before the law, and even if you are not open to the public.

Examples include but aren’t limited to laundromats, convenience stores, insurance companies, law offices, bowling alleys, grocery stores, drinking establishments, private clubs, gaming facilities, manufacturing companies, bingo halls, antique stores, bicycle shops, stadiums, theaters, etc.

For those entities that are smoke free, the entity must prominently post and properly maintain “no smoking” signs. If they are posted at all public and major employee entrances, compliance should be met. The requirement within the law is the international “no smoking” symbol. Signs may be purchased from an external vendor or self-printed.

For those who qualify for an exception, a “Smoking Permitted” sign should be prominently posted and properly maintained at every entrance where smoking is permitted.

Those who must comply with the “under 18 not permitted” stipulation in order to permit smoking must place a sign stating that no one under the age of 18 is permitted on the premises. For drinking establishments that wish to prohibit anyone under 21 from entering the premises, a sign stating that no one under 21 is permitted in the premises would satisfy the under 18 not permitted stipulation. This sign would be posted in addition to the “smoking permitted” sign.

Enforcement

The Pennsylvania Department of Health is the primary enforcement agent for the Act. Persons who would like to report a violation should contact the PADOH. PADOH may enlist the assistance of appropriate licensing agencies to investigate and enforce the Act.

Violations may be reported via the helpline at 1-877-835-9535, or via the internet at http://www.dsf.health.state.pa.us/health/cwp/view.asp?a=174&Q=251436. The form is a MS Word document that may be completed and submitted via email or completed and sent via postal mail.

Law enforcement agencies also have the ability to enforce the Act. It has been suggested that general complaints of violation be reported to PADOH, with law enforcement contacted when an employee or patron is being non-compliant with the law after attempts to prohibit smoking have not worked (telling the person smoking is not permitted per the law, asking the person to stop smoking in the prohibited area, asking the person to leave, etc) or if the employee or patron is harassing or belligerent in any way.

It is a violation of the Act to: 1) fail to post required signage, 2) to permit smoking where smoking is prohibited, and/or 3) to smoke in a place where smoking is prohibited. This places the person that smokes in a prohibited place as well as the entity that permits the smoking to occur at risk for violation.

The law does provide a stipulation that allows an affirmative defense to prosecution. This means that if a patron smokes and it was out of the control of the operator, manager, or person in control of the area, the business may not be subject to penalty for the violation. This is subject to the stipulations described in the Act and interpreted by PADOH.

Penalties are monetary in nature, and may be as high as $1000 depending on the frequency of violation.

The Erie County Department of Health and/or the NWPA Tobacco Control Program is not the enforcement agent for the CIAA. Anyone who wishes to report a violation should report the violation to the PADOH via the telephone helpline or electronically as described above.

Summary

The CIAA is complex. It is important to read and understand the CIAA and its interpretation before determining whether or not a business qualifies for an exception. I hope that the information provided helps you to understand more about the law and provides direction for you.

For those that have read the FAQ, guidance, and other documents published by PADOH (http://www.dsf.health.state.pa.us/health/cwp/view.asp?q=250974) and still need clarification or assistance, please contact our office and we are happy to help you and/or provide you with the resource that can answer your questions.

We may be contacted at 814-451-7856. Due to the amount of calls we receive, this number is a voice mail. Our staff check this voice mail often and calls are typically returned within one business day.

Thanks to ErieBlogs.com for allowing me to provide this information to all of you.