THE NYC SMOKER-FREE CITY ACT OF 2002
| Before you begin to read the law in its entirety, there are some highlights we'd like to go over first. |
Complete and Total Eradication of Accommodation - After deletions from the smoking law, as it existed in 1995, not ONE exception to prohibition has been left in place unless you're lucky enough to work in a retail tobacco store. This law is the complete and utter exile of smokers within the borders of NYC. In fact, they've made sure to add every nook and cranny not previously addressed.
Most Strikingly Alarming Additions and Deletions:
Addition: Catering Halls - When you hold a private function, such as a wedding or business dinner, you will no longer have control over your own party.
Deletion: Convention Halls - 1995 law held that smoking may be allowed in certain areas of convention halls. This law removes all areas and prohibits it entirely. Out of town business persons that generally use these halls are being told they aren't welcome.
Deletion: Homes for the Aged - 1995 law held that smoking may be allowed in separate smoking lounges. This law removes all indoor areas and prohibits it entirely. In other words, your grandmothers and grandfathers who still find enjoyment and comfort in a cigarette are being denied their last pleasures on earth unless they go OUTSIDE. We have documented stories where elderly persons residing in assisted living housing have frozen to death outdoors because that was the only place they could smoke. In one case, the door locked behind a woman and she was later found dead outside.
Addition: Motion Picture Theaters Shall Show Upon the Screen That Smoking is Prohibited Within the Premises - Posted signs are used in restaurants, stores and all other locations where smoking is prohibited. The same can hold true for a movie theater and does (there has been no smoking in theaters for over a decade and no more than a sign was needed to inform anyone of that fact). This is a blatant misuse of a practical venue to propagate and indoctrinate the public to the propaganda message that the anti-smokers seek to promote - that smoking is "socially unacceptable."
Addition: Airports - They write, "It shall be unlawful to smoke... in and about any airport, its buildings and appurtenances thereto." Aren't airports (at least indoors) overseen by the federal government? Did they just not create federal jobs out of baggage screeners in airports? Does the City of New York have jurisdiction inside of international airports? For instance, JFK Airport currently provides an enclosed smoking room. LaGuardia Airport allows smoking in their bars. Mayor Bloomberg and the sponsors of the bill appear to be overbearing in their reach. Then too, it is implied that smoking will not be allowed outdoors as well. Another unwelcome message to foreign visitors, who do not have to put up with this where they live, that not only must they refrain from smoking on board their plane and in any indoor area, but that they cannot seek relief outside the building either. Then into a taxi where it is prohibited as well? Yeah, welcome to New York.
Addition: Floating Craft
- They write, "It shall be unlawful to smoke... on board any... floating
craft... berthed or moored." If it's touching city property
they will control it. This is the extreme to which they want to take their
crusade for a smokefree society. They've left no stone unturned.
Most Laughable Additions:
Outdoor Dining Areas of Restaurants - In an exhaust filled city like NYC and the fact that cigarette smoke dissipates almost instantly outdoors there is absolutely no reason for this but sheer prejudice. They claim to want to "protect workers" but unless the waitstaff is sitting down with us for the entire meal and we're blowing smoke directly into their face, there is no rational explanation for banning smoking in outdoor eating patios (not that banning smoking outdoors isn't irrational just on the face of it).
Smoking Prohibited in Company Vehicles Occupied by More Than One Person - So when there are two or more smokers in the car each must negate each other's choice to smoke to "protect" each one from the other. Again, we ask rhetorically, is this ban about secondhand smoke or is it an abuse of power to stop people from engaging in legal behavior in order to have us bend to their will and stop smoking?
Ashtrays Immediately Adjacent to Public Entrances - They write "...are positioned so that second-hand smoke emanating from such ashtrays will not ordinarily activate smoke detectors." We'll give ten dollars to anyone who can find a news story that says the fire department was called to a house because the smoker living AND smoking inside had set off the smoke alarm. This is practically the icing on the cake about what lunacy this is when a lawmaker actually thinks to include smoke coming in from outside a door can actually set off any smoke detector.
Airports - They write, "It shall be unlawful to smoke... in and about any airport, its buildings and appurtenances thereto." We did include airports in the section above regarding alarming additions but it is also laughable. The take-off of a passenger jet produces more smoke and pollutants than a pack a day of cigarettes would for over 400 years. So, considering outdoors, that's just for starters. Air indoors in airports is recirculated with air from outside.
(Read Mayor Bloomberg's own thoughts as he responds to an opposition letter. Warning: The contents of his letter may be hazardous to logic)
NEW YORK CITY SMOKE-FREE AIR ACT
Chapter 5, Title 17, New York City Administrative Code
(Unofficial version)
Contains all provisions of Local Law 47 of 2002 which are effective
March 30, 2003
and which amended the law (previously known as Intro 256-A of
2002)
Table of Contents
§17-501 Short title.
§17-502 Definitions.
§17-503 Prohibition of Smoking.
§17-504 Regulation of smoking in places of employment.
§17-505 Areas where smoking is not regulated by this chapter.
§17-506 Posting of signs; prohibition of ashtrays.
§17-507 Enforcement.
§17-508 Violations and penalties.
§17-510 Public education.
§17-511 Governmental agency cooperation.
§17-512 General provisions.
§17-513 Rules and report.
§17-513.1 Effective dates for membership associations, owner operated
bars, tobacco bars.
§17-513.2 Construction.
§17-514 Report.
Unconsolidated sections.
§17-501 Short title. This chapter shall be known and may be cited as the “Smoke-Free Air Act.”§17-502 Definitions. Section 1. 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.§17-503 Prohibition of smoking.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.
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 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, race track, 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.
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:§ 17-504 Regulation of smoking in places of employment.1. Public transportation facilities, including, but not limited to, ticketing, boarding and waiting areas of public transit depots.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 17-505.2. 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
(c) separate smoking rooms in bars, provided, however, that the owner or operator of such bar shall have filed a copy of the architectural or
engineering plan for such room with the department of health and mental hygiene.[1]
[1] Subparagraph 20 (c) expires on January 2, 2006.
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.
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-fived. Smoking is prohibited in all indoor and outdoor areas of the following public places at all times:
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.
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.
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.§ 17-505 Areas where smoking is not regulated by this chapter.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.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.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.
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.
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:§ 17-506 Posting of signs; prohibition of ashtrays.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.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.§17-507 Enforcement.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.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.§17-508 Violations and penalties.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.
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§17-510 Public education.
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.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. The board of health’s administrative tribunal 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 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 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, 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.
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.§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.§17-512 General provisions.a. Nothing in this chapter shall be construed to permit smoking where it is otherwise prohibited by law or regulation.§ 17-513 Rules and report. **NYC C.L.A.S.H. NOTE: THOUGH INCLUDED IN THIS TEXT, THIS SECTION IS OBVIOUSLY EXPIRED AND NO LONGER VALID**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.
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.§17-513.1 Effective dates for membership associations, owner operated bars and tobacco bars.b. The commissioner of the department of buildings in conjunction with the commissioner of the department of environmental protection, the commissioner of the fire department and the commissioner shall study methods of and, if deemed appropriate, develop recommendations with respect to preventing, to the greatest extent practicable, second-hand smoke from drifting or recirculating from restaurant bars to indoor smoke-free areas of restaurants. The study and any
recommendations of such commissioners shall include, but not be limited to, the advisability of requiring restaurant bars to construct or implement any of the following:1. Separate smoking rooms.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.
2. Enclosed rooms.
3. Ventilation systems.
4. Separation of restaurant bar from indoor smoke-free areas by means of a partition.
5. Spatial separation of restaurant bar from indoor smoke-free areas by a specific distance.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 [2] 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.§17-513.2 Construction.
[2] Ninety days from March 30, 2003
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 2 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 2 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.
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.§ 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.Unconsolidated sections.1. Before the ninetieth day after this local law shall have become a law, every employer shall make any changes necessary in their written smoking policies to bring them into compliance with the requirements of chapter 5 of title 17 of the administrative code of the city of New York as amended by this local law.2. Nothing in this law shall be construed to impair, diminish or otherwise affect any collectively bargained procedure or remedy available to an employee, existing prior to the effective date of this local law, 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 chapter 5 of title 17 of the
administrative code with respect to the place of employment.3. If any provision of this local law, including but not limited to the provisions relating to tobacco bars and owner operated bars is ruled invalid, the remainder of the local law shall remain in force and effect. It is the intent of the Council that if any exemption from the prohibition of smoking is determined to be invalid, the remainder of the law shall be enforced as if that exemption had not been enacted, and smoking shall be prohibited in any place where the exemption previously
applied.4. Notwithstanding any provision of this local law, it is the intent of the Council not to prohibit the owner of any establishment regulated under this local law, or any family member of such owner, from smoking on the premises at times when such establishment is not open for business.
MAYOR BLOOMBERG SHARES HIS THOUGHTS ON BANNING SMOKERS FROM NYCWe've bolded the outstanding statement that defies all logic.
The remainder is UNPROVEN.
The Mayor of the City of New York wrote:
Date: Wed, 04 Sep 2002 11:32:29 -0400
From: "The Mayor of the City of New York"
Dear ****,
Thank you for writing to share your thoughts and concerns about the New York City Indoor Smoke-Free Act of 2002. As you may know, members of the City Council, restaurant owners, health advocates and community leaders recently joined me in announcing legislation that will expand the City's 1995 Smoke-Free Air Act. Bars, restaurants of any size, offices, and other indoor areas will be smoke-free upon passage of this legislation. New York City will be a national leader in tackling the most pressing public health issue facing New Yorkers and all Americans.
Well-documented studies have proven the devastating effects of second-hand smoke. Employees in bars and in restaurants where smoking is permitted have a 50% higher risk of lung cancer than other workers, even after taking their own smoking habits into account. Working one eight-hour shift in a smoky bar exposes one to the same amount of carcinogens as smoking half a pack of cigarettes a day. This bill will address a paramount health concern facing thousands of New Yorkers who work in smoke-filled environments and will safeguard the health of all New Yorkers and the millions of travelers who visit our great City each year.
Although we may not agree on this issue, please know I have given this matter careful consideration, and I appreciate your taking the time to share your concerns.
Sincerely,
Michael R. Bloomberg
Mayor