PENNSYLVANIA GAMING CONTROL BOARD [58 PA. CODE CHS. 441a AND 467a] Smoking in Licensed Facilities [38 Pa.B. 6158]
[Saturday, November 8, 2008]The Pennsylvania Gaming Control Board (Board), under the general authority in 4 Pa.C.S. § 1202(b)(30) (relating to general and specific powers) and specific authority contained in sections 3 and 4 of the Clean Indoor Air Act (35 P. S. §§ 637.3--637.4) (act) proposes to amend Chapters 441a and 467a (relating to slot machine licenses; and commencement of slot operations) to read as set forth in Annex A.
Purpose of the Proposed Rulemaking
This proposed rulemaking adds a new § 441a.25 (relating to smoking in licensed facilities) and amends § 467a.1 (relating to gaming floor plan) to implement the provisions of the act.
Explanation of Amendments to Chapters 441a and 467a
The new § 441a.25 sets forth the procedures and requirements that slot machine licensees must comply with as a result of the passage of the act.
Subsection (a) mirrors the provisions of the act which restrict smoking to no more than 25% of the gaming floor on September 11, 2008, the effective date of the act, and limit the maximum amount of the gaming floor that may eventually be designated as smoking to 50% of the gaming floor.
Subsection (b) reflects the requirement of the act that slot machine licensees request a gross terminal report from the Department of Revenue on December 10, 2008, and subsection (c) reflects the slot machine licensees' right to request subsequent reports on a quarterly basis.
Subsection (d) parallels the language of the act that permits proportionate increases in the amount of the gaming floor designated for smoking areas when there is a difference in the average gross terminal revenue for slot machines in the smoking areas as opposed to the slot machines in the nonsmoking areas.
Subsection (e) sets forth the process slot machine licensees will be required to use whenever they want to make a change to the designated smoking areas. Changes to designated smoking areas will be submitted to the Board's Executive Director, who will verify that the changes are consistent with the provisions of the act and the Board's regulations. Once this is done, the slot machine licensee will be notified and may proceed with the changes.
Subsection (f) reflects the provision of the act that allows a slot machine licensee who is operating a temporary licensed facility to use the same percentage of square footage designated for smoking areas in the temporary licensed facility in the permanent licensed facility. For example, if a slot machine licensee is authorized to designate 35% of the gaming floor in the temporary licensed facility as smoking, the slot machine licensee will be able to designate 35% of the gaming floor in the permanent facility as smoking.
Subsection (g) requires signage that clearly delineates where smoking may or may not be permitted on the gaming floor and requires that signs be posted at all public entrances which indicate that smoking is permitted in designated areas. While the act only requires ''smoking permitted'' signs at entrances, such signs at a licensed facility could give patrons the misimpression that they can smoke anywhere in the licensed facility. Because licensed facilities are only partially exempt from the smoking ban, language reflecting that fact is needed at the entrances to licensed facilities.
The Board is also seeking comments on whether or not smoking or nonsmoking labels should be required on each individual slot machine. In particular, the Board is requesting input on the effectiveness of individual labels and the costs and possible logistical problems that would be associated with placing labels on each slot machine.
Subsection (h) requires slot machine licensees to provide training to their employees on when smoking is and is not permitted and on what the employees should do if they see an individual smoking in a nonsmoking area.
Lastly, § 467a.1 has been amended to add designated smoking areas as one of the items that must be depicted on gaming floor plans.
Affected Parties
This proposed rulemaking will affect any slot machine licensee that permits smoking in designated areas in a licensed facility.
Fiscal Impact
Commonwealth
Under this proposed rulemaking, the Board's Executive Director will be required to review requests filed by slot machine licensees desiring to change the size or location of the designated smoking areas in their licensed facilities. These requests will be handled by existing staff so the Board does not foresee that there will be any new costs or savings to the Board or other Commonwealth agencies as a result of this proposed rulemaking.
Political Subdivisions
This proposed rulemaking will have no direct fiscal impact on political subdivisions of this Commonwealth.
Private Sector
Affected slot machine licensees will experience costs related to submitting changes to their gaming floor plans to designate areas where smoking is permitted; for posting signs indicating where smoking may or may not occur and training their employees.
The actual costs will vary by licensed facility depending on how frequently a slot machine licensee elects to make changes to their gaming floor. Costs per change are anticipated not to exceed $2,500.
Violations of these regulations could subject the slot machine licensee to fines between $250 to $1,000 under the act and other disciplinary action by the Board.
General Public
This proposed rulemaking will have no fiscal impact on the general public. However, under the act, individuals who smoke in areas designated as nonsmoking will be subject to fines of $250 to $1,000.
Paperwork requirements
Slot machine licensees will have to submit a request and revised floor plan any time they want to make a change to their designated smoking areas.
Effective Date
The proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin.
Public Comments
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking, within 30 days after the date of publication in the Pennsylvania Bulletin to Richard Sandusky, Director of Regulatory Review, Pennsylvania Gaming Control Board, P. O. Box 69060, Harrisburg, PA 17106-9060, Attention: Public Comment on Regulation No. 125-92.
Contact Person
The contact person for questions about this proposed rulemaking is Richard Sandusky, Director of Regulatory Review, at (717) 214-8111.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 28, 2008, the Board submitted a copy of this proposed rulemaking and a copy of the Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Gaming Oversight Committee and the Senate Community, Economic and Recreational Development Committee. A copy of this material is available to the public upon request and is available on the Board's web site (www.pgcb.state.pa.us).
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final-form publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
MARY DIGIACOMO COLINS,
ChairpersonFiscal Note: 125-92. No fiscal impact; (8) recommends adoption.
Annex A TITLE 58. RECREATION PART VII. GAMING CONTROL BOARD Subpart C. SLOT MACHINE LICENSING CHAPTER 441a. SLOT MACHINE LICENSES § 441a.25. Smoking in licensed facilities.
(a) Beginning on September 11, 2008, a slot machine licensee, except a slot machine licensee whose licensed facility is located in a city of the first class that has prohibited smoking in public places, may permit smoking on up to 25% of the square footage of the gaming floor. A slot machine licensee may increase the area of the gaming floor where smoking is permitted to a maximum of 50% of the square footage of gaming floor in accordance with the procedures in subsections (b)--(e).
(b) On December 10, 2008, or 90 days after commencement of slot operations at the licensed facility, whichever occurs later, a slot machine licensee shall request a report from the Department that analyzes the gross terminal revenue per slot machine unit in operation at the licensed facility within the 90-day period preceding the request.
(c) After receipt of the initial report under subsection (b), a slot machine licensee may request additional reports from the Department that analyze the gross terminal revenue per slot machine unit in operation at the licensed facility within the 90-day period preceding the request on a quarterly basis.
(d) When a report from the Department indicates that the average gross terminal revenue per slot machine unit in the designated smoking areas exceeds the average gross terminal revenue per slot machine unit in the designated nonsmoking areas, the slot machine licensee may, after verification by the Board's Executive Director, increase the square footage of the gaming floor designated for smoking in proportion to the percentage difference in revenue. The designated smoking areas may at no time exceed 50% of the square footage of the gaming floor.
(e) A notice of intent to increase, decrease or reconfigure the square footage of the gaming floor designated for smoking shall be submitted to the Board's Executive Director in writing and include a revised gaming floor plan. The Executive Director will review the revised gaming floor plan to verify compliance with the Clean Indoor Air Act (35 P. S. §§ 637.1--637.14) and this part. A slot machine licensee may not implement the increase, decrease or reconfiguration until compliance is verified.
(f) If a slot machine licensee moves from a temporary licensed facility to a permanent licensed facility, the slot machine licensee may utilize the current percentage of the square footage of the temporary licensed facility that is designated for smoking areas to determine the percentage of the square footage in the permanent facility that may be designated smoking areas. The designated smoking areas in the permanent facility shall be indicated on the gaming floor plan for the permanent facility submitted to the Board under § 467a.1 (relating to gaming floor plan).
(g) Slot machine licensees that permit smoking in designated areas of the licensed facility shall post signs, which at a minimum, contain the words ''Smoking'' or ''No Smoking'' or the international ''No Smoking'' symbol, to clearly delineate smoking and nonsmoking areas. Slot machine licensees that permit smoking in designated areas of a licensed facility shall also post signs that contain the phrase ''Smoking Permitted in Designated Areas'' at every public entrance to the licensed facility.
(h) Slot machine licensees that permit smoking in designated areas of the licensed facility shall provide training to their employees on:
(1) Where smoking is and is not permitted.
(2) The procedures employees should follow if an employee sees an individual smoking in an area that is not designated for smoking.
Subpart E. SLOT MACHINE TESTING, CERTIFICATION AND CONTROL CHAPTER 467a. COMMENCEMENT OF SLOT OPERATIONS § 467a.1. Gaming floor plan.
(a) An applicant for, or holder of a slot machine license, shall submit to the Board a floor plan of its gaming floor and the restricted areas servicing the slot operation. A floor plan must be:
* * * * * (2) Certified by an architect licensed to practice in this Commonwealth and depict the following:
* * * * * (xii) Designated smoking areas.
(xiii) Additional documentation requested by the Board relating to the floor plan for the gaming floor.
* * * * * [Pa.B. Doc. No. 08-2017. Filed for public inspection November 7, 2008, 9:00 a.m.]
