Section 17-501
§ 17-501 Short title. This chapter shall be known and may be cited as
the "Smoke-Free Air Act."
Section 17-502
§ 17-502 Definitions. As used in this chapter, the following terms
shall be defined as follows:
a. "Auditorium" means the part of the building where an audience sits
including any corridors, hallways or lobbies adjacent thereto.
b. "Bar" means a business establishment or any portion of a non-profit
entity, which is devoted to the selling and serving of alcoholic
beverages for consumption by the public, guests, patrons, or members on
the premises and in which the serving of food, if served at all, is only
incidental to the sale or consumption of such beverages. For the
purposes of this chapter, the term "bar": (i) shall include a restaurant
bar; (ii) shall include any area located in a hotel or motel, which is
devoted to the selling and serving of alcoholic beverages for
consumption by the public, guests, patrons, or members on the premises
and in which the serving of food, if at all, is only incidental to the
sale or consumption of alcoholic beverages; and (iii) shall include a
cabaret as defined in section 20-359 of the code which is required to be
licensed by the department of consumer affairs pursuant to section
20-360 of the code and in which the serving of food, if at all, is only
incidental to the sale or consumption of alcoholic beverages. For the
purposes of this subdivision, (i) service of food shall be considered
incidental to the sale or consumption of alcoholic beverages if the food
service generates less than forty percent of total annual gross sales
and (ii) any business establishment or any portion of a non-profit
entity which is devoted to the selling and serving of alcoholic
beverages for consumption by the public, guests, patrons, or members on
the premises that generates forty percent or more of total annual gross
sales from the sale of food for on-premises consumption shall be a
restaurant.
c. "Business establishment" means any sole proprietorship,
partnership, association, joint venture, corporation or other entity
formed for profit-making purposes, including professional corporations
and other entities where legal, medical, dental, engineering,
architectural, financial, counseling, and other professional or consumer
services are provided.
d. "Child day care center" means (i) any public, private or parochial
child care center, school-age child care program, day nursery school,
kindergarten, play school, or other similar school or service, (ii) any
child care arrangement licensed by the city, (iii) any facility that
provides child care services as defined in section four hundred ten-p of
the New York state social services law and (iv) any child day care
center as defined in section three hundred ninety of the New York state
social services law. Such definition applies whether or not care is
given for compensation and whether or not the child day care center is
located in a private residence.
e. "Children's institution" means (i) any public, private or parochial
congregate institution, group residence, group home or other place
where, for compensation or otherwise, seven or more children under
twenty-one years of age are received for day and night care apart from
their parents or guardians, (ii) youth centers or facilities for
detention as defined in sections five hundred twenty-seven-A and five
hundred two of the New York state executive law, (iii) group homes for
children as defined in section three hundred seventy-one of the New York
state social services law, (iv) public institutions for children as
defined in section three hundred seventy-one of the New York state
social services law and (v) residential treatment facilities for
children and youth as defined in section 1.03 of the New York state
mental hygiene law.
f. "Commissioner" means the commissioner of the New York City
department of health and mental hygiene.
g. "Department" means the New York City department of health and
mental hygiene.
h. "Employee" means any person who is employed by any employer in
return for the payment of direct or indirect monetary wages or profit,
or any person who volunteers his or her services to such employer for no
monetary compensation.
i. "Employer" means any person, partnership, association, corporation
or non-profit entity which employs one or more persons, including
agencies of the city of New York, as defined in section 1-112 of the
code, and the council of the city of New York.
* k. "Limousine" means a for-hire vehicle required to be licensed by
the taxi and limousine commission, designed to carry fewer than nine
passengers, excluding the driver, which is dispatched from a garage,
maintains a minimum of $500,000/$1,000,000 liability insurance coverage
and in which passengers are charged fees calculated on the basis of
garage to garage service.
* NB There are 2 sub k's
* k. "Motion picture theater" means any public hall or room in which
motion pictures are displayed, including any corridors, hallways or
lobbies adjacent thereto. For purposes of this subdivision, "motion
picture" means a display on a screen or other device, of pictures or
objects in motion or rapidly changing scenery, whether or not such
display shall be accompanied by a lecture, recitation or music.
* NB There are 2 sub k's
l. "Non-profit entity" means any corporation, unincorporated
association or other association or other entity created for charitable,
philanthropic, educational, political, social or other similar purposes,
the net proceeds from the operations of which are committed to the
promotion of the objects or purposes of the organization and not to
secure private financial gain. A public agency is not a "non-profit
entity" within the meaning of this subdivision.
m. "Place of employment" means any indoor area or portion thereof
under the control of an employer which employees normally frequent
during the course of employment and which is not generally accessible to
the public, including, but not limited to, private offices, work areas,
employee lounges and restrooms, conference and class rooms, employee
cafeterias, employee gymnasiums, auditoriums, libraries, storage rooms,
file rooms, mailrooms, employee medical facilities, rooms or areas
containing photocopying or other office equipment used in common by
employees, elevators, stairways and hallways. A private residence is not
a "place of employment" within the meaning of this subdivision, except
that areas in a private residence where a child day care center or
health care facility is operated during the times when employees are
working in such child day care center or health care facility areas and
areas in a private residence which constitute common areas of a multiple
dwelling containing ten or more dwelling units, are "places of
employment" within the meaning of this subdivision.
n. "Playground" means an outdoor area open to the public where
children play, which contains play equipment such as a sliding board,
swing, jungle gym, sandbox, or see-saw, or which is designated as a play
area.
p. "Public place" means any area to which individuals other than
employees are invited or permitted, including, but not limited to,
banks, educational facilities, health care facilities, child day care
centers, children's institutions, shopping malls, property owned,
occupied or operated by the city of New York or an agency thereof,
public transportation facilities, reception areas, restaurants, catering
halls, retail stores, theaters, sports arenas and recreational areas and
waiting rooms. A private residence is not a "public place" within the
meaning of this subdivision, except that areas in a private residence
where a child day care center or health care facility is operated during
the times of operation and areas in a private residence which constitute
common areas of a multiple dwelling containing ten or more dwelling
units, are "public places" within the meaning of this subdivision.
q. "Residential health care facility" means (i) a facility providing
therein nursing or other care to sick, invalid, infirm, disabled or
convalescent persons in addition to lodging and board service, (ii) an
inpatient psychiatric facility which provides individuals with active
treatment under the direction of a physician, and (iii) a residential
facility providing health related service.
r. "Restaurant" means any coffee shop, cafeteria, luncheonette,
sandwich stand, diner, short order cafe, fast food establishment, soda
fountain, and any other eating or beverage establishment (other than a
bar), including a restaurant located in a hotel or motel, or part of any
organization, club, boardinghouse or guest house, which gives or offers
for sale food or beverages to the public, guests, members, or patrons,
whether food or beverages are customarily consumed on or off the
premises, but not an establishment whose sole purpose is to serve food
or beverages to employees of a common employer or to students of a
common educational institution.
s. "Restaurant bar" means a contiguous area (i) in a restaurant, (ii)
containing a counter and (iii) which is primarily devoted to the selling
and serving of alcoholic beverages for consumption by patrons on the
premises and in which the serving of food, if served at all, is only
incidental to the sale or consumption of alcoholic beverages in such
restaurant bar.
t. "Retail store" means any place which in the regular course of
business sells or rents goods directly to the public.
u. "Retail tobacco store" means a retail store devoted primarily to
the sale of any tobacco product, including but not limited to
cigarettes, cigars, pipe tobacco and chewing tobacco, and accessories
and in which the sale of other products is merely incidental. The sale
of such other products shall be considered incidental if such sales
generate less than fifty percent of the total annual gross sales.
w. "Separate smoking room" means an enclosed room the exclusive
purpose of which is for smoking. No business transactions, including,
but not limited to, the sale, including by vending machines, and/or
service of food, beverages, or any other product, and/or collection of
any payments, shall be conducted in such room.
Such room shall (i) be completely enclosed on all sides by solid
floor-to-ceiling walls; (ii) comply with all applicable fire and
building code requirements, and have a sprinkler system for fire safety
(which may be part of a sprinkler system of the premises in which the
room is located); and (iii) have a separate ventilation system whereby
the air from such enclosed room is immediately exhausted to an outdoor
area (exclusive of any seating area) by an exhaust fan rather than being
recirculated inside, and which is compliant with the additional
specifications set forth in this subdivision; (iv) be clearly designated
as a separate smoking room wherein no services are offered. Such room
may contain furniture. Such room shall not contain the sole means of
ingress and egress to restrooms or any other smoke-free area, and shall
not constitute the sole indoor waiting area of the premises. Any doors
in such room shall be self-closing, and shall remain closed except to
the extent necessary to permit ingress and egress to such room. Such
room shall not exceed twenty-five percent of the aggregate square
footage of the premises, including non-smoking lounges and shall not in
any event exceed three hundred fifty square feet. In calculating the
square footage of the premises pursuant to this subdivision, all spaces,
whether or not occupied by furniture or any counter, including public
dining areas, beverage service areas, the separate smoking room, and
lounges shall be included; provided however, that service areas
(including areas behind any counter) and other areas to which the
general public does not generally have access (such as storage rooms,
kitchens, offices and cloakrooms), restrooms, telephone areas and
waiting areas (other than waiting areas located in any lounges) shall
not be included. No employee shall be permitted to enter such room for
the purposes of conducting any business transaction, including but not
limited to the sale or service of food, beverages, or any other product,
provided, however, that an employee shall be allowed into such room to
provide busing or other cleaning services when no smoking has occurred
for fifteen minutes prior to the employee entering the room and no
customers are present. Such room shall have a ventilation system in
which the ventilation rate is at least sixty cubic feet per minute per
occupant based on a maximum occupancy of seven individuals per one
hundred feet of floor space, and the negative air pressure is at a rate
such that when measured by a device approved by the department of health
and mental hygiene, the pressure differential is at least three
hundredths of an inch of water column relative to the air pressure in
the adjacent room in which smoking is not permitted. Such ventilation
system shall discharge air from the separate smoking room at least
twenty-five feet away from operable windows, doors, air conditioning,
and any other heating, ventilation and air conditioning intakes.
x. "Service line" or "waiting area" means a queue, line or other
formation of persons, whether seated or standing, in which one or more
persons are waiting for service of any kind, whether or not such service
involves an exchange of consideration.
y. "Smoking" means inhaling, exhaling, burning or carrying any lighted
cigar, cigarette, pipe, or any form of lighted object or device which
contains tobacco.
z. "Sports arena and recreational area" means any sports pavilion,
stadium, racetrack, boxing arena, roller and ice skating rink, billiard
parlor, bowling establishment and other similar place where members of
the general public assemble either to engage in physical exercise,
participate in athletic or recreational competition or activity or
witness sports, cultural, recreational or similar activities.
Playgrounds, gymnasiums, health clubs, enclosed areas containing a
swimming pool and areas where bingo is played are not "sports arenas and
recreational areas" within the meaning of this subdivision.
aa. "Tobacco business" means a sole proprietorship, corporation,
partnership or other enterprise in which the primary activity is the
sale or manufacture of tobacco, tobacco products and accessories at
wholesale, and in which the sale or manufacture of other products is
merely incidental, and in which smoking on the premises is essential to
the entity for the testing or product development of such tobacco or
tobacco products.
bb. "Zoo" means any indoor area open to the public for the purpose of
viewing animals. An aquarium is a "zoo" within the meaning of this
subdivision.
cc. "Day treatment program" means a facility which is (i) licensed by
the state department of health or the office of alcoholism and substance
abuse services, the office of mental health, or the office of mental
retardation and developmental disabilities within the state department
of mental hygiene to provide treatment to aid in the rehabilitation or
recovery of its patients based on a structured environment requiring
patient participation for no less than three hours each day; or (ii)
which is authorized by the state commissioner of health to conduct a
program pursuant to section 80.135 of title ten of the New York code of
rules and regulations.
dd. "Health related service" means service in a facility which
provides or offers lodging, board and physical care including, but not
limited to, the recording of health information, dietary supervision and
supervised hygienic services incident to such service.
ee. "Member" means, for purposes of subdivision ff of this section, a
person who (i) satisfies the requirements for membership in a membership
association, and (ii) affirmatively accepts an invitation from such
membership association to become a member.
ff. "Membership association" means a not-for-profit entity which has
been created or organized for a charitable, philanthropic, educational,
political, social or other similar purpose and which is registered with
the department of health and mental hygiene in accordance with the rules
of the department. In determining whether such an entity is a
"membership association," the department of health and mental hygiene
shall consider, but need not be limited to, the following factors:
(i) whether it has by-laws or a similar governing instrument and
whether such by-laws or similar governing instrument expressly provides
for members;
(ii) whether it has established permanent and identifiable membership
selection criteria, the purpose of which is to screen potential members
on a basis related to its charitable, philanthropic, educational,
political, social or other similar purpose;
(iii) whether it conducts elections to select its governing structure
and/or body;
(iv) whether the premises within which it is located are controlled by
its membership;
(v) whether it is operated solely for the benefit and pleasure of its
membership;
(vi) whether it expressly acknowledges the acceptance of members, such
as by sending a membership card or by the inclusion of a member on a
membership roster.
Such registration shall remain in effect for two years and shall be
renewable based upon the factors described in this subdivision and the
rules of the department.
gg. "Owner operated bar" means a bar in which all duties with respect
to preparing food and drink, cleaning, dishwashing and racking glasses,
serving, maintaining inventory, stocking shelves and providing of
security for such a bar are performed at all times only by individuals
who are principal owners of such bar as defined in this section and
which is registered with the department of health and mental hygiene in
accordance with the rules of the department; provided, however, that
individuals other than the principal owners may perform cleaning
functions at times when the bar is not open to the public, guests,
members or patrons.
hh. "Principal owner" shall mean an individual who holds a twenty-five
percent or greater ownership interest in a bar and is a state liquor
authority licensee for such bar, or an individual who holds a
twenty-five percent or greater ownership interest in a partnership,
joint venture, corporation or limited liability corporation, which is
the sole owner of a bar and the state liquor authority licensee for such
bar; provided, however, that an owner operated bar shall have no more
than three principal owners.
ii. "Tobacco product" means any substance which contains tobacco,
including, but not limited to, cigarettes, cigars, pipe tobacco and
chewing tobacco.
jj. "Tobacco bar" is a bar that, in the calendar year ending December
31, 2001, generated ten percent or more of its total annual gross income
from the on-site sale of tobacco products and the rental of on-site
humidors, not including any sales from vending machines, and is
registered with the department of health and mental hygiene in
accordance with the rules of such agency. Such registration shall remain
in effect for one year and shall be renewable only if: (i) in the
preceding calendar year, the previously registered tobacco bar generated
ten percent or more of its total annual gross income from the on-site
sale of tobacco products and the rental of on-site humidors; and (ii)
the tobacco bar has not expanded its size or changed its location from
its size or location as of December 31, 2001.
kk. "Negative air pressure" shall mean the air exhausted to the
outdoors from a room is at a greater volume than the volume of air
supplied into the room.
ll. "Ventilation rate" shall mean the rate at which air is supplied
into a room.
mm. "Hospital", for the purposes of paragraph 6 of subdivision c of
section 17-503, shall mean a general hospital as defined in section
twenty-eight hundred one of the public health law, diagnostic center and
treatment center as defined in section 751.1 of part seven hundred fifty
one of title ten of the New York codes, rules and regulations and
residential health care facilities as defined in section twenty-eight
hundred one of the public health law.
nn. "Hospital grounds" means the outdoor grounds contained within a
hospital's legally defined property boundaries.
oo. "Park or other property under the jurisdiction of the department
of parks and recreation" means public parks, beaches, waters and land
under water, pools, boardwalks, marinas, playgrounds, recreation centers
and all other property, equipment, buildings and facilities now or
hereafter under the jurisdiction, charge or control of the department of
parks and recreation.
pp. "Pedestrian plaza" means an area designated by the department of
transportation for use as a plaza located within the bed of a roadway,
which may contain benches, tables or other facilities for pedestrian
use.
Section 17-503
§ 17-503 Prohibition of smoking.
a. Smoking is prohibited in all enclosed areas within public places
except as otherwise restricted in accordance with the provisions below.
Such public places include, but are not limited to, the following:
1. Public transportation facilities, including, but not limited to,
ticketing, boarding and waiting areas of public transit depots.
2. Public means of mass transportation, including, but not limited to,
subway cars and all underground areas of a subway station, buses, vans,
taxicabs and all for-hire vehicles, including but not limited to
limousines, required to be licensed or franchised by the city of New
York.
3. Public restrooms.
4. Retail stores (other than retail tobacco stores).
5. Restaurants.
6. Business establishments (other than retail tobacco stores)
including, but not limited to, banks and other financial institutions,
catering halls, offices where trade or vocational activity occurs or
professional or consumer services are rendered and non-profit entities,
including religious institutions; provided however, that this paragraph
shall not apply to membership associations.
7. Libraries, museums and galleries.
8. Motion picture theaters, concert halls, buildings or areas or rooms
in buildings primarily used for or designed for the primary purpose of
exhibiting movies or presenting performances, including, but not limited
to, stage, musical recital, dance, lecture or other similar
performances, except that smoking may be part of a theatrical
production.
9. Auditoriums.
10. Convention halls.
11. Sports arenas and recreational areas.
12. Gymnasiums, health clubs and enclosed areas containing a swimming
pool.
13. Places of meeting or public assembly during such time as a meeting
open to the public is being conducted for educational, religious,
recreational, or political purposes, but not including meetings
conducted in private residences, unless such meetings are conducted in
an area in a private residence where a child day care center or health
care facility is operated during the times of operation or in an area
which constitutes a common area of a multiple dwelling containing ten or
more dwelling units.
14. Health care facilities including, but not limited to, hospitals,
clinics, psychiatric facilities, residential health care facilities,
physical therapy facilities, convalescent homes, and homes for the aged;
provided however, that this paragraph shall not prohibit smoking by
patients in separate enclosed rooms of residential health care
facilities or facilities where day treatment programs are provided,
which are designated as smoking rooms for patients of such facilities or
programs, provided, however, that prior written approval is received
from the fire commissioner pursuant to section 27-4276 of the code.
15. All schools other than public and private pre-primary, primary,
and secondary schools providing instruction for students at or below the
twelfth-grade level, including, but not limited to, community colleges,
technical training establishments, specialty schools, colleges and
universities.
16. Children's institutions.
17. Zoos.
18. Elevators.
19. Public areas where bingo is played.
20. Bars; provided however, that smoking shall be permitted in:
(a) tobacco bars; (b) owner operated bars; and
21. Tobacco businesses, except that smoking shall be permitted in
areas within a tobacco business designated by such business for the
purpose of testing or development of tobacco or tobacco products;
provided, however, that such areas must all be located on no more than
two floors of the building where such business is located.
22. Membership associations; provided however, that smoking shall only
be allowed in membership associations in which all of the duties with
respect to the operation of such association, including, but not limited
to, the preparation of food and beverages, the service of food and
beverages, reception and secretarial work, and the security services of
the membership association are performed by members of such membership
association who do not receive compensation of any kind from the
membership association or any other entity for the performance of such
duties.
b. Smoking is prohibited on any service line, waiting area, or portion
thereof, whether located indoor or outdoor during the times in which the
public is invited or permitted, notwithstanding the fact that the
service line, waiting area, or portion thereof, is in an area otherwise
designated for smoking pursuant to subdivision a of this section;
provided, however, that this subdivision shall not be construed to
prohibit smoking in any area where smoking is permitted pursuant to
section 17-505.
c. Smoking is prohibited in the following outdoor areas of public
places, except as otherwise restricted in accordance with the provisions
below:
1. Outdoor dining areas of restaurants with no roof or other ceiling
enclosure; provided, however, that smoking may be permitted in a
contiguous outdoor area designated for smoking so long as such area: (i)
constitutes no more than twenty-five percent of the outdoor seating
capacity of such restaurant; (ii) is at least three feet away from the
outdoor area of such restaurant not designated for smoking; and (iii) is
clearly designated with written signage as a smoking area.
2. Outdoor seating or viewing areas of open-air motion picture
presentations or open-air concert, stage, dance, lecture or recital
presentations or performances or other similar open-air presentations or
performances, when seating or standing room is assigned by issuance of
tickets.
3. Outdoor seating or viewing areas of sports arenas and recreational
areas, when seating or standing room is assigned by issuance of tickets.
4. Outdoor areas of all children's institutions.
5. Playgrounds.
6. Hospital grounds, within fifteen feet of any hospital entrance or
exit and within fifteen feet of the entrance to or exit from any
hospital grounds.
7. Pedestrian plazas.
d. Smoking is prohibited in all indoor and outdoor areas of the
following public places at all times:
1. All public and private pre-primary, primary, and secondary schools
providing instruction for students at or below the twelfth-grade level,
and any vehicles owned, operated or leased by such schools which are
used to transport such students or the personnel of such schools.
2. All child day care centers; provided, however, that with respect to
child day care centers operated in private residences, this paragraph
shall apply only to those areas of such private residences where the
child day care centers are operated during the times of operation or
during the time employees are working in such child day care centers.
3. Any park or other property under the jurisdiction of the department
of parks and recreation; provided, however, that this paragraph shall
not apply to: (a) the sidewalks immediately adjoining parks, squares and
public places; (b) any pedestrian route through any park strip, median
or mall that is adjacent to vehicular traffic; (c) parking lots; and (d)
theatrical productions.
Section 17-504
§ 17-504 Regulation of smoking in places of employment. a. Smoking is
prohibited in those indoor areas of places of employment to which the
general public does not generally have access. This section shall not
prohibit smoking in any area where smoking is not regulated pursuant to
section 17-505.
c. Smoking is prohibited in company vehicles occupied by more than one
person. Smoking is prohibited in all vehicles owned by the city of New
York.
d. No employer shall take any retaliatory adverse personnel action
against any employee or applicant for employment on the basis of such
person's exercise, or attempt to exercise, his or her rights under this
chapter with respect to the place of employment. Such adverse personnel
action includes, but is not limited to, dismissal, demotion, suspension,
disciplinary action, negative performance evaluation, any action
resulting in loss of staff, compensation or other benefit, failure to
hire, failure to appoint, failure to promote, or transfer or assignment
or failure to transfer or assign against the wishes of the affected
employee. The employer shall establish a procedure to provide for the
adequate redress of any such adverse personnel action taken against an
employee in retaliation for that employee's attempt to exercise his or
her rights under this chapter with respect to the place of employment.
e. By November 1, 1995, every employer subject to the provisions of
this chapter shall adopt, implement, make known, maintain and update to
reflect any changes, a written smoking policy which shall contain at
minimum, the following requirements:
1. The prohibition of smoking except in accordance with the provisions
of this chapter and any rules promulgated pursuant thereto, and a
description of the smoking restrictions adopted or implemented.
2. As set forth in subdivision d of this section, the (A) protection
from retaliatory adverse personnel action with respect to all employees
or applicants for employment who exercise, or attempt to exercise, any
rights granted under such subdivision; and (B) the establishment of a
procedure to provide for the adequate redress of any such adverse
personnel action taken against an employee in retaliation for that
employee's attempt to exercise his or her rights under this chapter with
respect to the place of employment.
f. Employers shall prominently post the smoking policy in the
workplace, and shall, within three weeks of its adoption and any
modification, disseminate the policy to all employees, and to new
employees when hired.
g. Employers shall supply a written copy of the smoking policy upon
request to any employee or prospective employee.
h. A copy of the smoking policy shall be provided to the department,
the department of buildings, the department of consumer affairs, the
department of environmental protection, the fire department and the
department of sanitation upon request.
i. This section shall not be construed to permit smoking in any area
in which smoking is prohibited or restricted pursuant to section 17-503.
Where a place of employment is also a public place where smoking is
prohibited or restricted pursuant to section 17-503, and is not exempt
from regulation under section 17-505, smoking shall be prohibited.
j. Nothing in this section shall be construed to impair, diminish, or
otherwise affect any collectively bargained procedure or remedy
available to an employee, existing as of February 1, 1995, with respect
to disputes arising under the employer's smoking policy or with respect
to the establishment of a procedure for redress of any adverse personnel
action taken against an employee in retaliation for that employee's
attempt to exercise his or her rights under this chapter with respect to
the place of employment. Upon expiration of any such collectively
bargained procedure or remedy, the provisions of this section shall take
effect.
Section 17-505
§ 17-505 Areas where smoking is not regulated by this chapter.
The following areas shall not be subject to the smoking restrictions
of this chapter; provided however, that nothing in this section shall be
construed to permit smoking where smoking is otherwise prohibited or
restricted by any other law or rule:
b. Private residences, except any area of a private residence where a
child day care center or health care facility is operated (i) during the
times of operation or (ii) during the times when employees are working
in such child day care center or health care facility areas; provided,
however, that a common area of a multiple dwelling containing ten or
more dwelling units shall be subject to smoking restrictions.
c. Hotel and motel rooms occupied by, or available for, occupancy by
guests.
f. Private automobiles.
g. Retail tobacco stores.
h. Enclosed rooms in restaurants, bars, catering halls, convention
halls, hotel and motel conference rooms, and other such similar
facilities during the time these enclosed areas or rooms are being used
exclusively for functions where the public is invited for the primary
purpose of promoting and sampling tobacco products, and the service of
food and drink is incidental to such purpose, provided that the operator
of such function shall have provided notice to the department of health
and mental hygiene in a form satisfactory to such department at least
two weeks before such a function begins, and such notice has identified
the dates on which such function shall occur. No such facility may
permit smoking under this subdivision for more than five days in any
calendar year.
Section 17-506
§ 17-506 Posting of signs; prohibition of ashtrays.
a. Except as may otherwise be provided by rules promulgated by the
commissioner, "Smoking" or "No Smoking" signs, or the international
symbols indicating the same, and any other signs necessary to comply
with the provisions of this chapter shall be prominently and
conspicuously posted where smoking is either prohibited, permitted or
otherwise regulated by this chapter, by the owner, operator, manager or
other person having control of such area. The size, style and location
of such signs shall be determined in accordance with rules promulgated
by the commissioner, but in promulgating such rules, the commissioner
shall take into consideration the concerns of the various types of
establishments regulated herein with respect to the style and design of
such signs.
b. In addition to the posting of signs as provided in subdivision a,
every owner, manager or operator of a theatre which exhibits motion
pictures to the public shall show upon the screen for at least five
seconds prior to the showing of each feature motion picture, information
indicating that smoking is prohibited within the premises.
c. The owner, operator or manager of a hotel or motel that chooses to
develop and implement a smoking policy for rooms rented to guests shall
post a notice at the reception area of the establishment as to the
availability, upon request, of smoke-free rooms.
d. Ashtrays are prohibited in all smoke-free areas covered by this
chapter except (i) ashtrays offered for sale or (ii) ashtrays placed
immediately adjacent to hotel and motel elevators and immediately
adjacent to public entrances to hotels and motels, provided that such
ashtrays are positioned so that second-hand smoke emanating from such
ashtrays will not ordinarily activate smoke detectors and provided
further that "No Smoking" signs as set forth in subdivision a of this
section and in any rules promulgated by the commissioner shall be posted
immediately adjacent to such ashtrays.
Section 17-507
§ 17-507 Enforcement.
a. The department shall enforce the provisions of this chapter. In
addition, designated enforcement employees of the department of
buildings, the department of consumer affairs, the department of
environmental protection, the fire department and the department of
sanitation shall have the power to enforce the provisions of this
chapter.
b. Any person who desires to register a complaint under this chapter
may do so with the department.
c. With respect to a public place or place of employment, the operator
or employer shall inform, or shall designate an agent who shall be
responsible for informing, individuals smoking in restricted areas that
they are in violation of this local law; provided, however, that the
obligations under this subdivision with respect to an operator of a
multiple dwelling containing ten or more dwelling units shall be limited
to (i) those multiple dwellings where an agent is on duty and (ii)
designating such agent to be responsible for informing individuals
smoking in restricted common indoor areas where such agent is on duty,
during the times such agent is on duty, that such individuals are in
violation of this local law.
d. Where an owner or building manager of a public place where smoking
is prohibited or restricted pursuant to section 17-503 is not the
operator of such public place but has an agent on duty in such place,
the owner or building manager shall designate such agent to inform
individuals smoking in restricted common indoor areas (i) where such
agent is on duty and (ii) during the times when such agent is on duty,
that such individuals are in violation of this local law.
e. Where an owner or building manager of a building in which a place
of employment is located where smoking is prohibited or restricted
pursuant to section 17-504 is not the operator or employer of such place
of employment but has an agent on duty in such place, the owner or
building manager shall designate such agent to inform individuals
smoking in restricted common indoor areas (i) where such agent is on
duty and (ii) during the times when such agent is on duty, that such
individuals are in violation of this local law. Such owner or building
manager shall also mail a notice to tenants operating such place of
employment, informing such tenants of their obligations under this
chapter with respect to such restricted common indoor areas. A copy of
the mailed notice shall be provided to the department upon request.
f. The department shall seek to obtain voluntary compliance with this
chapter by means of publicity and education programs, and the issuance
of warnings, where appropriate.
g. The department of parks and recreation shall have the power to
enforce section 17-503 as it relates to property under its jurisdiction.
Section 17-508
§ 17-508 Violations and penalties.
a. It shall be unlawful for any person who owns, manages, operates or
otherwise controls the use of premises in which smoking is prohibited or
restricted pursuant to this chapter, or the designated agent thereof, to
(i) provide a room designated for smoking including, but not limited to,
a separate smoking room or an enclosed room, which fails to comply with
the provisions of this chapter; provided, however, that the obligations
of an owner or building manager of a building (where such owner or
building manager of a building in which a public place is located is not
the operator or employer of such public place) with respect to such a
room shall be limited to work authorized by any permits necessary to
perform construction obtained by the owner or his or her agent; (ii)
fail to post the signs required by section 17-506; (iii) fail to remove
ashtrays as required by subdivision d of section 17-506; or (iv) fail to
make a good faith effort to comply with subdivisions c, d and e of
section 17-507. In actions brought for violations of this subdivision,
the following shall be affirmative defenses: (i) that during the
relevant time period actual control of the premises was not exercised by
the respondent or a person under the control of the respondent, but
rather by a lessee, sublessee or any other person; provided, however,
that after receiving the notice of violation, the respondent submits to
the department within five business days, by certified mail, a sworn
affidavit and other such proof as may be necessary, indicating that he
or she has not exercised actual control during the relevant time period;
(ii) that a person smoking in any area where smoking is prohibited
pursuant to section 17-503 was informed by a person who owns, manages,
operates or otherwise controls the use of such premises, or the
designated agent thereof, that such person smoking is in violation of
this local law and that such person who owns, manages, operates or
otherwise controls the use of such premises has complied with all
applicable provisions of this chapter during the relevant time period;
provided, however, that after receiving notice of violation, the
respondent submits to the department within five business days, by
certified mail, a sworn affidavit and other such proof as may be
necessary, indicating that respondent informed the person smoking in any
area where smoking is prohibited pursuant to section 17-503 that such
person was in violation of this local law and that respondent has
complied with all applicable provisions of this chapter during the
relevant time period; or (iii) that a person smoking in any restricted
common indoor area where smoking is prohibited pursuant to section
17-503 was not informed by the owner or building manager of the premises
(where such owner or building manager of a building in which a public
place or a place of employment is located is not the operator or
employer of such public place or place of employment) or by the operator
of a multiple dwelling containing ten or more dwelling units that such
person smoking is in violation of this local law because such owner,
building manager or operator did not have a designated agent on duty
when such person was smoking and that such owner or building manager
has, where applicable, complied with the mailing of a notice required
pursuant to subdivision e of section 17-507; provided, however, that
after receiving notice of violation, the respondent submits to the
department within five business days, by certified mail, a sworn
affidavit and other such proof as may be necessary, indicating that a
person smoking in any restricted common indoor area where smoking is
prohibited pursuant to section 17-503 was not informed by the respondent
that such person smoking is in violation of this local law because the
respondent did not have a designated agent on duty when such person was
smoking and that the respondent has, where applicable, mailed the notice
required pursuant to subdivision e of section 17-507.
b. It shall be unlawful for an employer whose place of employment is
subject to regulation under section 17-504 to fail to comply with the
provisions of that section, including, but not limited to, those
provisions requiring the adoption, implementation, dissemination and
maintenance of a written smoking policy which conforms to the
requirements of subdivision e of section 17-504, or to fail to make a
good faith effort to comply with subdivision c of section 17-507. In
actions brought for violations of this subdivision, it shall be an
affirmative defense that the employer (i) has made good faith efforts to
insure that employees comply with the provisions of such written smoking
policy and (ii) has complied with all applicable provisions of this
chapter.
d. It shall be unlawful for any person to smoke in any area where
smoking is prohibited under section 17-503 and section 17-504.
e. Every person who violates subdivisions a or b of this section
shall, for a first violation thereof, be liable for a civil penalty of
not less than two hundred dollars nor more than four hundred dollars;
for a second violation, both of which were committed within a period of
twelve months, be liable for a civil penalty of not less than five
hundred dollars nor more than one thousand dollars; and for a third or
subsequent violation, all of which were committed within a period of
twelve months, be liable for a civil penalty of not less than one
thousand dollars nor more than two thousand dollars. Every person who
violates subdivision d of this section shall be liable for a civil
penalty of one hundred dollars for each violation, except that every
person who violates subdivision d of this section by smoking in a
pedestrian plaza as prohibited by paragraph seven of subdivision c of
section 17-503 or in a park or other property under the jurisdiction of
the department of parks and recreation as prohibited by paragraph three
of subdivision d of section 17-503 shall be liable for a civil penalty
of fifty dollars for each violation.
f. A proceeding to recover any civil penalty authorized pursuant to
the provisions of subdivision e of this section shall be commenced by
the service of a notice of violation which shall be returnable to the
administrative tribunal established by the board of health, except that
a proceeding to recover a civil penalty authorized pursuant to
subdivision e for violation of subdivision d by smoking in a pedestrian
plaza or in a park or other property under the jurisdiction of the
department of parks and recreation, as prohibited by paragraph seven of
subdivision c and by paragraph three of subdivision d of section 17-503
respectively, shall be commenced by the service of a notice of violation
which shall be returnable to the environmental control board. The board
of health's administrative tribunal and the environmental control board
shall have the power to impose the civil penalties prescribed by
subdivision e of this section.
g. Whenever a notice of violation of subdivision a or b of this
section is served by a person with power to enforce the provisions of
this chapter pursuant to subdivision a of section 17-507, such notice
shall, where applicable, include an order which requires the respondent
to correct the condition constituting the violation and to file a
certification with the department that the condition has been corrected.
Such order shall require that the condition be corrected within ten days
from the date that the order is issued and that certification of the
correction of the condition be filed with the department in a manner and
form and within such further period of time to be determined in
accordance with rules and regulations promulgated by the commissioner.
h. If the administrative tribunal established by the board of health
or the environmental control board finds, upon good cause shown, that
the respondent cannot correct the violation specified in subdivision g
of this section, it may postpone the period for compliance with such
order upon such terms and conditions and for such period of time as
shall be appropriate under the circumstances.
i. In any proceeding before the administrative tribunal established by
the board of health or the environmental control board, if the tribunal
finds that the department or other agency issuing the notice of
violation has failed to prove the violation charged, it shall notify the
department or other agency issuing the notice of violation, and the
order requiring the respondent to correct the condition constituting the
violation shall be deemed to be revoked.
j. When the owner or operator of a bar has been found to be in
violation of subparagraph c of paragraph twenty of subdivision a of
section 17-503 on two or more occasions on the basis of one or more
employees being in a separate smoking room at times not permitted under
this chapter, the tribunal shall revoke the right of such owner or
operator to maintain a separate smoking room in such bar.
k. The penalties provided by this section shall be in addition to any
other penalty imposed by any other provision of law or regulation
thereunder.
Section 17-510
§ 17-510 Public education. The department shall engage in a continuing
program to explain and clarify the provisions and purposes of this
chapter and shall provide assistance to those persons who seek to
comply, and to those who want to stop smoking.
Section 17-511
§ 17-511 Governmental agency cooperation. The department shall seek to
encourage state and federal governmental and educational agencies having
facilities within the city of New York, but not subject to the
provisions of this chapter, to establish local operating procedures
which substantially conform to the requirements of this chapter.
Section 17-512
§ 17-512 General provisions.
a. Nothing in this chapter shall be construed to permit smoking where
it is otherwise prohibited by law or regulation.
b. Nothing in this chapter shall be construed to prohibit owners,
operators, managers, employers or other persons having control of any
establishment subject to this chapter from adopting a smoke-free policy
which completely prohibits smoking on the premises of such establishment
at all times.
c. Nothing in this chapter shall be construed to require owners,
operators, managers, employers or other persons having control of any
establishment subject to this chapter to choose to construct a separate
smoking room, an enclosed room where smoking is permitted or a solid
floor-to-ceiling partition separating a restaurant bar from the indoor
dining area of a restaurant as the means of complying with this chapter.
d. Nothing in this chapter shall be construed to preclude owners,
operators, managers, employers or other persons having control of any
establishment covered by this act from prohibiting smoking in such
establishment to a greater extent than is provided by this chapter, in
accordance with applicable law.
e. Nothing in this chapter shall be construed to allow owners,
operators, managers, employers or other persons having control of any
establishment covered by this act to be subject to any legal proceeding
or action to enforce this chapter in any court by any party, other than
the city of New York or its designated agencies, based on such owners',
operators', managers', employers' or other persons' alleged manner or
method of compliance with the provisions of this chapter or his or her
alleged failure to comply with the same.
Section 17-513
§ 17-513 Rules.
a. The commissioner shall promulgate rules in accordance with the
provisions contained in this chapter, and such other rules as may be
necessary for the purpose of implementing and carrying out the
provisions of this chapter.
b. The department of parks and recreation and the department of
transportation may promulgate rules as may be necessary for the purpose
of implementing and carrying out the provisions of this chapter.
In determining the advisability of requiring that certain protections
from second-hand smoke be provided in restaurant bars, the commissioners
shall consider any applicable standards or recommendations of the
American Society of Heating, Refrigerating and Air-Conditioning
Engineers, any applicable standards or recommendations of the United
States environmental protection agency and the occupational safety and
health administration of the United States department of labor with
respect to indoor air quality relating to second-hand smoke, the impact
on public health of exposure to second-hand smoke and any other factors
which such commissioners deem appropriate. Such commissioner shall
report to the council by January 1, 1996 regarding the results of the
study required pursuant to this subdivision and any recommendations.
Section 17-513.1
§ 17-513.1 Effective dates for membership associations, owner operated
bars and tobacco bars. a. Any entity who in good faith believes itself
to be a membership association shall have one hundred eighty days from
the effective date of the local law that added this section to apply to
the department of health and mental hygiene for registration as a
membership association. During the period of time from the effective
date of the local law which added this section until the expiration of
one hundred eighty days, no provision of the local law that added this
section, except for the provisions of this section, shall apply to such
entity, but all provisions of local law 5 for the year 1995 shall
continue to apply to such entity.
b. Any entity who in good faith believes itself to be an owner
operated bar shall have one hundred eighty days from the effective date
of the local law that added this section to apply to the department of
health and mental hygiene for registration as an owner operated bar.
During the period of time from the effective date of the local law which
added this section until the expiration of one hundred eighty days, no
provision of the local law that added this section, except for the
provisions of this section, shall apply to such entity, but all
provisions of local law 5 for the year 1995 shall continue to apply to
such entity.
c. Any entity who in good faith believes itself to be a tobacco bar
shall have one hundred eighty days from the effective date of the local
law that added this section to apply to the department of health and
mental hygiene for registration as a tobacco bar. During the period of
time from the effective date of the local law which added this section
until the expiration of one hundred eighty days, no provision of the
local law that added this section, except for the provisions of this
section, shall apply to such entity, but all provisions of local law 5
for the year 1995 shall continue to apply to such entity.
Section 17-513.2
§17-513.2 Construction.
The provisions of this chapter shall not be interpreted or construed
to permit smoking where it is prohibited or otherwise restricted by
other applicable laws, rules or regulations.
Section 17-514
§ 17-514 Report. Not later than twelve months after the effective date
of this local law, and each year thereafter, the department shall submit
a report to the mayor and the council concerning the administration and
enforcement of this local law.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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