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S02543 Summary:

S02543 Actions:

S02543 Committee Votes:

S02543 Floor Votes:

S02543 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2543--A
            Cal. No. 646
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                    January 13, 2017
                                       ___________
 
        Introduced  by Sens. HANNON, AKSHAR, ALCANTARA, AVELLA, BRESLIN, BROOKS,
          CARLUCCI, COMRIE, FUNKE, HAMILTON, HELMING, JACOBS, KAMINSKY, KRUEGER,
          LARKIN, LAVALLE, PERSAUD, RITCHIE, VALESKY -- read twice  and  ordered
          printed,  and  when printed to be committed to the Committee on Health
          -- reported favorably from said committee, ordered to first and second
          report, ordered to a third reading,  amended  and  ordered  reprinted,
          retaining its place in the order of third reading
 
        AN  ACT  to amend the public health law, in relation to including vaping
          within the provisions of law  regulating  smoking  in  certain  public
          areas
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 1399-n of the  public  health  law  is  amended  by
     2  adding three new subdivisions 9, 10 and 11 to read as follows:
     3    9. "Vaping" means the use of an electronic cigarette.
     4    10.  "Electronic cigarette" shall have the same meaning as in subdivi-
     5  sion thirteen of section thirteen hundred ninety-nine-aa of  this  chap-
     6  ter.
     7    11.  "Retail  electronic cigarette store" means a retail store devoted
     8  primarily to the sale of electronic cigarettes, and in which the sale of
     9  other products is merely incidental. The sale  of  such  other  products
    10  shall  be considered incidental if such sales generate less than twenty-
    11  five percent of the total annual gross sales.
    12    § 2. Section 1399-q of the public health law, as amended by chapter 13
    13  of the laws of 2003, is amended to read as follows:
    14    § 1399-q. Smoking and vaping restrictions inapplicable.  This  article
    15  shall not apply to:
    16    1. Private homes, private residences and private automobiles;
    17    2. A hotel or motel room rented to one or more guests;
    18    3. Retail tobacco businesses;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01779-02-7
        S. 2543--A                          2
 
     1    4. Membership associations; provided, however, that smoking and vaping
     2  shall  only  be  allowed  in membership associations in which all of the
     3  duties with respect to the operation of such association, including, but
     4  not limited to, the preparation of food and beverages,  the  service  of
     5  food  and  beverages,  reception  and secretarial work, and the security
     6  services of the membership association are performed by members of  such
     7  membership  association who do not receive compensation of any kind from
     8  the membership association or any other entity for  the  performance  of
     9  such duties;
    10    5. Cigar bars that, in the calendar year ending December thirty-first,
    11  two  thousand  two,  generated  ten  percent or more of its total annual
    12  gross income from the on-site sale of tobacco products and the rental of
    13  on-site humidors, not including any sales from vending machines, and  is
    14  registered  with  the  appropriate  enforcement  officer,  as defined in
    15  subdivision one of section thirteen hundred ninety-nine-t of this  arti-
    16  cle.  Such registration shall remain in effect for one year and shall be
    17  renewable only if: (a) in the preceding calendar  year,  the  cigar  bar
    18  generated  ten percent or more of its total annual gross income from the
    19  on-site sale of tobacco products and the rental of on-site humidors, and
    20  (b) the cigar bar has not expanded its size or changed its location from
    21  its size or location since December thirty-first, two thousand two;
    22    6. Outdoor dining areas of food service establishments with no roof or
    23  other ceiling enclosure; provided, however, that smoking and vaping  may
    24  be  permitted  in a contiguous area designated for smoking and vaping so
    25  long as such area: (a) constitutes no more than twenty-five  percent  of
    26  the  outdoor seating capacity of such food service establishment, (b) is
    27  at least three feet away from the outdoor  area  of  such  food  service
    28  establishment  not designated for smoking and vaping, and (c) is clearly
    29  designated with written signage as a smoking and vaping area; [and]
    30    7. Enclosed rooms  in  food  service  establishments,  bars,  catering
    31  halls,  convention  halls,  hotel  and motel conference rooms, and other
    32  such similar facilities during the time such enclosed areas or rooms are
    33  being used exclusively for functions where the public is invited for the
    34  primary purpose of promoting and sampling tobacco products or electronic
    35  cigarettes, and the service of food and  drink  is  incidental  to  such
    36  purpose,  provided  that  the  sponsor  or organizer gives notice in any
    37  promotional material or advertisements that smoking and vaping will  not
    38  be  restricted,  and  prominently  posts  notice  at the entrance of the
    39  facility and has provided notice of such  function  to  the  appropriate
    40  enforcement  officer,  as defined in subdivision one of section thirteen
    41  hundred ninety-nine-t of this article, at least two weeks prior to  such
    42  function.  The  enforcement  officer  shall keep a record of all tobacco
    43  sampling events, and such record shall  be  made  available  for  public
    44  inspection.  No such facility shall permit smoking and vaping under this
    45  subdivision for more than two days in any calendar year; and
    46    8. Retail electronic cigarette stores,  provided  however,  that  such
    47  stores may only permit the use of electronic cigarettes.
    48    §  3. The article heading of article 13-E of the public health law, as
    49  added by chapter 244 of the laws of 1989, is amended to read as follows:
    50                                ARTICLE 13-E
    51          REGULATION OF SMOKING AND VAPING IN CERTAIN PUBLIC AREAS
    52    § 4. Section 1399-o of the public health law, as  amended  by  chapter
    53  389  of the laws of 2011, subdivision 2 as amended by chapter 179 of the
    54  laws of 2013, subdivision 3 as added by chapter 449 of the laws of 2012,
    55  and subdivision 4 as added by chapter  100  of  the  laws  of  2015,  is
    56  amended to read as follows:
        S. 2543--A                          3
 
     1    § 1399-o. Smoking and vaping restrictions. 1. Smoking and vaping shall
     2  not  be  permitted  and  no  person shall smoke or vape in the following
     3  indoor areas:
     4    a. places of employment;
     5    b. bars;
     6    c.  food service establishments, except as provided in subdivision six
     7  of section thirteen hundred ninety-nine-q of this article;
     8    d. enclosed indoor areas open to  the  public  containing  a  swimming
     9  pool;
    10    e. public means of mass transportation, including subways, underground
    11  subway  stations, and when occupied by passengers, buses, vans, taxicabs
    12  and limousines;
    13    f. ticketing, boarding and  waiting  areas  in  public  transportation
    14  terminals;
    15    g.  youth  centers and facilities for detention as defined in sections
    16  five hundred twenty-seven-a and five hundred three of the executive law;
    17    h. any facility that  provides  child  care  services  as  defined  in
    18  section  four  hundred  ten-p  of the social services law, provided that
    19  such services provided in a private home are excluded from this subdivi-
    20  sion when children enrolled in such day care are not present;
    21    i. child day care centers as defined in section three  hundred  ninety
    22  of  the  social  services law and child day care centers licensed by the
    23  city of New York;
    24    j. group homes for children as defined in section three hundred seven-
    25  ty-one of the social services law;
    26    k. public institutions  for  children  as  defined  in  section  three
    27  hundred seventy-one of the social services law;
    28    l.  residential treatment facilities for children and youth as defined
    29  in section 1.03 of the mental hygiene law;
    30    m. all public and private colleges, universities and other educational
    31  and vocational institutions, including dormitories, residence halls, and
    32  other group residential facilities that are owned or  operated  by  such
    33  colleges,  universities  and  other  educational  and  vocational insti-
    34  tutions, except that these restrictions shall not apply in any  off-cam-
    35  pus  residential  unit  occupied  by  a person who is not enrolled as an
    36  undergraduate student in such college, university or  other  educational
    37  or vocational institution;
    38    n. general hospitals and residential health care facilities as defined
    39  in  article  twenty-eight of this chapter, and other health care facili-
    40  ties licensed by the state in which persons reside;  provided,  however,
    41  that  the  provisions of this subdivision shall not prohibit smoking and
    42  vaping by patients in separate enclosed rooms of residential health care
    43  facilities, adult care facilities established or certified  under  title
    44  two of article seven of the social services law, community mental health
    45  residences established under section 41.44 of the mental hygiene law, or
    46  facilities  where  day treatment programs are provided, which are desig-
    47  nated as smoking and vaping rooms for patients  of  such  facilities  or
    48  programs;
    49    o.  commercial  establishments  used for the purpose of carrying on or
    50  exercising any trade, profession, vocation or charitable activity;
    51    p. indoor arenas;
    52    q. zoos; and
    53    r. bingo facilities.
    54    2. Smoking and vaping shall not be permitted and no person shall smoke
    55  or vape in the following outdoor areas:
        S. 2543--A                          4
 
     1    a. ticketing, boarding or platform areas of railroad stations operated
     2  by the metropolitan transportation authority or its subsidiaries.
     3    b.  on  the  grounds  of general hospitals and residential health care
     4  facilities as defined in article twenty-eight of  this  chapter,  within
     5  fifteen  feet  of  a building entrance or exit or within fifteen feet of
     6  the entrance to or exit from the grounds of any such general hospital or
     7  residential health care facility. This subdivision  shall  not  prohibit
     8  smoking  and vaping by a patient or a visitor or guest of a patient of a
     9  residential health care facility in  a  separate  area  on  the  grounds
    10  designated  as  a smoking and vaping area by the residential health care
    11  facility, provided such designated smoking and vaping area is not within
    12  thirty feet of any building  structure  (other  than  a  non-residential
    13  structure  wholly  contained  within  the  designated smoking and vaping
    14  area), including any overhang, canopy, awning, entrance,  exit,  window,
    15  intake or exhaust.
    16    3. Smoking and vaping shall not be permitted and no person shall smoke
    17  or vape within one hundred feet of the entrances, exits or outdoor areas
    18  of  any  public  or  private  elementary or secondary schools; provided,
    19  however, that the provisions of this  subdivision  shall  not  apply  to
    20  smoking  or  vaping in a residence, or within the real property boundary
    21  lines of such residential real property. The provisions of section thir-
    22  teen hundred ninety-nine-p of this  article  shall  not  apply  to  this
    23  subdivision.
    24    4. Smoking and vaping shall not be permitted and no person shall smoke
    25  or vape within one hundred feet of the entrances, exits or outdoor areas
    26  of  any  after-school program licensed or registered pursuant to section
    27  three hundred ninety of the social services law; provided, however, that
    28  the provisions of this subdivision shall only apply on  those  days  and
    29  during  those hours in which such after-school programs are operational;
    30  and provided, further, that the provisions of this subdivision shall not
    31  apply to smoking or vaping in a residence, or within the  real  property
    32  boundary lines of such residential real property.
    33    §  5.  Section  1399-o-1 of the public health law, as added by chapter
    34  102 of the laws of 2013, is amended to read as follows:
    35    § 1399-o-1. Smoking and vaping restrictions; certain outdoor areas. 1.
    36  Smoking and vaping shall not be permitted and no person shall  smoke  or
    37  vape  during  the  hours  between  sunrise  and sunset, when one or more
    38  persons under the age of twelve are present at any playground.  For  the
    39  purposes  of  this section, the term "playground" means an improved area
    40  designed, equipped, and set aside for play of six or more children which
    41  is not intended for use as an athletic playing field or athletic  court,
    42  and  shall include any play equipment, surfacing, fencing, signs, inter-
    43  nal pathways, internal land forms, vegetation, and  related  structures.
    44  Playgrounds or playground equipment constructed upon one, two and three-
    45  family  residential  real  property  are exempt from the requirements of
    46  this section. This section shall not apply  to  any  playground  located
    47  within the city of New York.
    48    2.  No  police  officer,  peace  officer,  regulatory  officer  or law
    49  enforcement official may arrest, ticket, stop  or  question  any  person
    50  based  solely  or  in part on an alleged violation of subdivision one of
    51  this section, nor may an alleged violation of subdivision  one  of  this
    52  section  support  probable cause to conduct any search or limited search
    53  of any person or his or her immediate surroundings.
    54    § 6. Section 1399-p of the public health law, as added by chapter  244
    55  of  the laws of 1989, subdivision 1 as amended by chapter 13 of the laws
        S. 2543--A                          5
 
     1  of 2003, and subdivision 3 as added by chapter 100 of the laws of  2015,
     2  is amended to read as follows:
     3    §  1399-p.  Posting  of  signs. 1. "Smoking" or "No Smoking" signs, or
     4  "Vaping" or "No Vaping" signs, or the international "No Smoking" symbol,
     5  which consists of a pictorial  representation  of  a  burning  cigarette
     6  enclosed  in  a circle with a bar across it, shall be prominently posted
     7  and properly maintained where smoking [is] and vaping are  regulated  by
     8  this  article,  by  the  owner, operator, manager or other person having
     9  control of such area.
    10    2. The owner, operator or manager of a hotel or motel that chooses  to
    11  develop  and  implement  a smoking and vaping policy for rooms rented to
    12  guests shall post a notice at the reception area of the establishment as
    13  to the availability, upon request, of rooms in which no smoking [is] and
    14  vaping are allowed.
    15    3. The provisions of this section shall apply to after-school programs
    16  that are subject to the provisions of subdivision four of section  thir-
    17  teen  hundred  ninety-nine-o of this article, provided that signs posted
    18  pursuant to this subdivision shall  specify  the  specific  time  period
    19  during which smoking and vaping shall be prohibited.
    20    §  7. Section 1399-r of the public health law, as added by chapter 244
    21  of the laws of 1989, is amended to read as follows:
    22    § 1399-r. General provisions. 1. Nothing  in  this  article  shall  be
    23  construed  to  deny the owner, operator or manager of a place covered by
    24  this article the right to designate the entire place, or any part there-
    25  of, as a nonsmoking and nonvaping area.
    26    2. The provisions of this article  shall  apply  to  the  legislative,
    27  executive  and  judicial  branches of state government and any political
    28  subdivision of the state.
    29    3. Smoking and vaping may not be permitted  where  prohibited  by  any
    30  other  law,  rule,  or  regulation  of any state agency or any political
    31  subdivision of the state. Nothing herein shall be construed to  restrict
    32  the  power  of  any  county, city, town, or village to adopt and enforce
    33  additional local law, ordinances, or regulations which  comply  with  at
    34  least the minimum applicable standards set forth in this article.
    35    § 8. Section 1399-s of the public health law, as amended by chapter 13
    36  of the laws of 2003, is amended to read as follows:
    37    §  1399-s.  Violations.  1. It shall be unlawful for any person, firm,
    38  limited liability  company,  corporation  or  other  entity  that  owns,
    39  manages,  operates  or  otherwise  controls  the use of an area in which
    40  smoking and vaping is prohibited or restricted pursuant to section thir-
    41  teen hundred ninety-nine-o of this article to fail to  comply  with  the
    42  provisions of this article. For violations of this subdivision, it shall
    43  be  an  affirmative  defense that during the relevant time period actual
    44  control of the area was not exercised by the respondent, but rather by a
    45  lessee, the sublessee or any other person. To establish  an  affirmative
    46  defense,  the  respondent  shall  submit an affidavit and may submit any
    47  other relevant proof indicating that the  respondent  did  not  exercise
    48  actual  control of said area during the relevant time period. Such affi-
    49  davit and other proof shall be mailed by certified mail to the appropri-
    50  ate enforcement officer within thirty days of receipt of such notice  of
    51  violation.
    52    2.  It  shall be unlawful for an employer whose place of employment is
    53  subject to subdivision one of section thirteen hundred ninety-nine-o  of
    54  this  article to fail to comply with the provisions of such subdivision.
    55  For violations of such subdivision, it shall be an  affirmative  defense
        S. 2543--A                          6
 
     1  that  the  employer has made good faith efforts to ensure that employees
     2  comply with the provisions of this article.
     3    3.  It  shall  be unlawful for any person to smoke or vape in any area
     4  where smoking   and vaping is prohibited  or  restricted  under  section
     5  thirteen hundred ninety-nine-o of this article.
     6    §  9.  Subdivision  4  of  section 1399-t of the public health law, as
     7  amended by chapter 13 of the  laws  of  2003,  is  amended  to  read  as
     8  follows:
     9    4.  The owner, manager, operator or other person having control of any
    10  area subject to the provisions of this article, shall inform,  or  shall
    11  designate  an  agent  who shall be responsible for informing individuals
    12  smoking or vaping in an area in which smoking or vaping is not permitted
    13  that they are in violation of this article.
    14    § 10. Subdivision 2 of section 1399-u of the  public  health  law,  as
    15  amended  by  chapter  13  of  the  laws  of  2003, is amended to read as
    16  follows:
    17    2. Every waiver  granted  shall  be  subject  to  such  conditions  or
    18  restrictions  as may be necessary to minimize the adverse effects of the
    19  waiver upon persons subject to an involuntary  exposure  to  second-hand
    20  smoke  or  vaping  and  to ensure that the waiver is consistent with the
    21  general purpose of this article.
    22    § 11. Section 1399-w of the public health law, as added by chapter 244
    23  of the laws of 1989, is amended to read as follows:
    24    § 1399-w. Limitation of causes of action.  An employer, administrator,
    25  manager, owner or operator of any indoor area, food  service  establish-
    26  ment,  or  place of employment regulated by this article who complies or
    27  fails to comply with the provisions of this article shall not be subject
    28  to any legal liability or action solely as a result of  such  compliance
    29  or  noncompliance except as provided in section thirteen hundred ninety-
    30  nine-v of this article. Nothing in any other  section  of  this  article
    31  shall  be  construed  to  create, impair, alter, limit, modify, enlarge,
    32  abrogate or restrict any theory of liability upon which any  person  may
    33  be held liable to any other person for exposure to smoke or vaping.
    34    §  12.  Section 1399-x of the public health law, as amended by chapter
    35  389 of the laws of 2011, is amended to read as follows:
    36    § 1399-x. Rules and regulations. The commissioner shall not promulgate
    37  any rules or regulations to effectuate the provisions of  section  thir-
    38  teen  hundred  ninety-nine-n,  paragraph f of subdivision one of section
    39  thirteen hundred ninety-nine-o or subdivision one  of  section  thirteen
    40  hundred  ninety-nine-p  of  this  article.  The  commissioner  shall not
    41  promulgate any rules or regulations that create, limit  or  enlarge  any
    42  smoking or vaping restrictions.
    43    §  13.  This act shall take effect on the thirtieth day after it shall
    44  have become a law; provided, however, that  effective  immediately,  the
    45  addition,  amendment  and/or  repeal of any rule or regulation necessary
    46  for the implementation of this act on its effective date  is  authorized
    47  and directed to be made and completed on or before such effective date.