PROPOSED RULEMAKING
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
[49 PA. CODE CH. 43b]
Schedule of Civil Penalties for Violations of the Clean Indoor Air Act
[40 Pa.B. 5175]
[Saturday, September 11, 2010]
The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to amend §§ 43b.4—43b.9 to read as set forth in Annex A.
Effective Date
The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
The Clean Indoor Air Act (act) (35 P. S. §§ 637.1—637.11), which became effective September 11, 2008, prohibits smoking in public places. Although the Department of Health has primary enforcement authority under the act, section 5(b)(1)(ii) of the act (35 P. S. § 637.5(b)(1)(ii)) provides that if a public place is subject to licensure by another agency, the Department of Health will refer the complaint to the appropriate licensing agency for investigation and enforcement. Six of the boards or commissions under the Bureau of Professional and Occupational Affairs (Bureau) license and routinely inspect ''public places'' as defined in section 2 of the act (35 P. S. § 637.2): the State Board of Barber Examiners; the State Board of Cosmetology; the State Board of Funeral Directors; the State Board of Pharmacy; the State Real Estate Commission; and the State Board of Vehicle Manufacturers, Dealers and Salespersons. Therefore, these six boards/commissions are responsible for the enforcement of the act in licensed facilities under their jurisdiction.
The act of July 2, 1993 (P. L. 345, No. 48) (Act 48) authorizes the Commissioner, after consultation with the licensing boards and commissions, to adopt a schedule of civil penalties for violations of their respective acts or regulations relating to the conduct or operation of a business or facility licensed by the licensing boards or commissions. Therefore, the Commissioner is proposing to amend the existing schedules of civil penalties to add civil penalties for violations of the act. Each of the boards/commissions approved the proposed rulemaking to the civil penalty schedule at a regularly scheduled public meeting.
Background and purpose
Adoption of a schedule of civil penalties for violations of the act at licensed facilities will permit authorized agents of the Bureau to issue citations for these violations. Citations streamline the disciplinary process by eliminating the need for formal orders to show cause, answers, adjudications and orders, and consent agreements. At the same time, licensees who receive a citation retain their due process right to a hearing prior to the imposition of discipline. Section 6(a) of the act (35 P. S. § 637.6) identifies three violations that are subject to civil penalties: failure to post a sign as required by section 4 of the act (35 P. S. § 637.4); permitting smoking in a public place where smoking is prohibited; and smoking in a public place where smoking is prohibited.
Since the passage of the act, inspectors for these six boards and commissions have been notifying licensees about their responsibilities under the act. The inspectors have been provided a supply of the signs required under section 4 of the act and have been providing them to licensed facilities upon inspection. It was determined that because many licensees would not expect inspectors for the boards and commissions to be enforcing the provisions of the act, initial violations discovered during this educational effort would result in a warning and a compliance order. Once the civil penalty schedules have been promulgated, all violations will result in the issuance of a citation as set forth in the relevant civil penalty schedule.
Description of the Proposed Rulemaking
The Commissioner proposes to amend the existing schedules of civil penalties for each of these six boards/commissions in §§ 43b.4—43b.9 to establish a civil penalty schedule for the three violations in section 6 of the act: failure to post a required sign; permitting smoking where smoking is prohibited; and smoking in a public place where smoking is prohibited. Section 6(c) of the act sets forth the administrative penalties for violations of the act: not to exceed $250 for first violations; not to exceed $500 for second violations (defined as those occurring within 1 year of the first violation); and not to exceed $1,000 for third violations (defined as those occurring within 1 year of the second violation). The Commissioner is therefore proposing civil penalties of $250 for first offenses, $500 for second offenses and $1,000 for third offenses. The act is silent as to subsequent violations; however, Act 48 limits the maximum civil penalty that may be imposed by citation to $1,000. Therefore, the Commissioner is proposing a civil penalty of $1,000 for all subsequent violations, that is, those that occur within 1 year of the previous violation.
Fiscal Impact and Paperwork Requirements
The proposed rulemaking would not have adverse fiscal impact on the Commonwealth or its political subdivisions and would reduce the paperwork requirements of both the Commonwealth and the regulated community by eliminating the need for orders to show cause, answers, consent agreements and adjudications/orders for violations of the act.
Sunset Date
Professional licensure statutes require each board and commission to be self-supporting; therefore, boards and commissions continually monitor the cost effectiveness of regulations affecting their operations. As a result, a sunset date has not been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 27, 2010, the Commissioner submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Senate Consumer Protection and Professional Licensure Commit-tee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey 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 publication of the rulemaking, by the Commissioner, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Regulatory Counsel Cynthia Montgomery, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin.
BASIL L. MERENDA,
CommissionerFiscal Note: 16-46. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR
IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL§ 43b.4. Schedule of civil penalties—barbers and barber shops.
STATE BOARD OF BARBER EXAMINERS * * * * *
Violation under 35 P. S. Title/Description Civil Penalty Section 637.6(a)(1) Failure of licensed barber shop or school to post a sign as required under section 4 of the Clean Indoor Air Act (35 P. S. § 637.4) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(2) Barber shop permitting smoking in the barber shop or barber school permitting smoking in the barber school in violation of the Clean Indoor Air Act (35 P. S. §§ 637.1—637.11) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(3) Licensee of the Board smoking in a barber shop or in a barber school in violation of the Clean Indoor Air Act 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 * * * * * § 43b.5. Schedule of civil penalties—cosmetologists, [manicurists, cosmeticians, shops] nail technicians, estheticians, natural hair braiders, salons.
STATE BOARD OF COSMETOLOGY * * * * *
Violation under 35 P. S. Title/Description Civil Penalty Section 637.6(a)(1) Failure of licensed cosmetology salon, limited practice salon or cosmetology school to post a sign as required under section 4 of the Clean Indoor Air Act (35 P. S. § 637.4) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(2) Licensed cosmetology or limited practice salon permitting smoking in the salon or licensed cosmetology school permitting smoking in the school in violation of the Clean Indoor Air Act (35 P. S. §§ 637.1—637.11) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(3) Licensee of the Board smoking in a cosmetology salon, limited practice salon or cosmetology school in violation of the Clean Indoor Air Act 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 * * * * * § 43b.6. Schedule of civil penalties—funeral directors and funeral establishments.
STATE BOARD OF FUNERAL DIRECTORS * * * * *
Violation under 35 P. S. Title/Description Civil Penalty Section 637.6(a)(1) Failure of funeral establishment to post a sign as required under section 4 of the Clean Indoor Air Act (35 P. S. § 637.4) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(2) Funeral establishment permitting smoking in the funeral establishment in violation of the Clean Indoor Air Act (35 P. S. §§ 637.1—637.11) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(3) Licensee of the Board smoking in a funeral establishment in violation of the Clean Indoor Air Act 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 * * * * * § 43b.7. Schedule of civil penalties—pharmacists and pharmacies.
STATE BOARD OF PHARMACY * * * * *
Violation under 35 P. S. Title/Description Civil Penalty Section 637.6(a)(1) Failure of a pharmacy permit holder to post a sign as required under section 4 of the Clean Indoor Air Act (35 P. S. § 637.4) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(2) Pharmacy permit holder permitting smoking in the pharmacy in violation of the Clean Indoor Air Act (35 P. S. §§ 637.1—637.11) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(3) Licensee of the Board smoking in a pharmacy in violation of the Clean Indoor Air Act 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 * * * * * § 43b.8. Schedule of civil penalties—real estate and cemetery brokers, real estate schools.
STATE REAL ESTATE COMMISSION * * * * *
Violation under 35 P. S. Title/Description Civil Penalty Section 637.6(a)(1) Failure of broker or cemetery broker to post a sign in a real estate office or cemetery office or real estate education provider to post a sign in a real estate school as required under section 4 of the Clean Indoor Air Act (35 P. S. § 637.4) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(2) Broker or cemetery broker permitting smoking in a real estate or cemetery office or real estate education provider permitting smoking in a real estate school 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(3) Licensee of the Commission smoking in a real estate office, cemetery office or real estate school 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 * * * * * § 43b.9. Schedule of civil penalties—vehicle manufacturers, dealers and salespersons.
STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS * * * * *
Violation under 35 P. S. Title/Description Civil Penalty Section 637.6(a)(1) Failure of vehicle dealer, branch lot, public or retail vehicle auction, or wholesale vehicle auction to post a sign as required under section 4 of the Clean Indoor Air Act (35 P. S. § 637.4) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(2) Vehicle dealership, branch lot, public or retail vehicle auction or wholesale vehicle auction permitting smoking in an area where smoking is prohibited by the Clean Indoor Air Act (35 P. S. §§ 637.1—637.11) 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 Section 637.6(a)(3) Licensee of the Board smoking in an area of the vehicle dealership, branch lot, public or retail vehicle auction or wholesale vehicle auction where smoking is prohibited by the Clean Indoor Air Act 1st offense—$250 2nd offense (within 1 year of 1st offense)—$500 3rd offense (within 1 year of 2nd offense)—$1,000 Subsequent offenses (within 1 year of previous offense)—$1,000 * * * * *
[Pa.B. Doc. No. 10-1681. Filed for public inspection September 10, 2010, 9:00 a.m.]
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