STATE OF NEW YORK
________________________________________________________________________
516--A
Cal. No. 173
2017-2018 Regular Sessions
IN ASSEMBLY
January 9, 2017
___________
Introduced by M. of A. ROSENTHAL, DINOWITZ, JAFFEE, ARROYO, HOOPER,
ENGLEBRIGHT, FAHY, ZEBROWSKI, MOSLEY, MAGNARELLI, STIRPE, ABINANTI,
BRINDISI, CAHILL, ORTIZ, GALEF, GOTTFRIED, SKOUFIS, HUNTER, SEAWRIGHT,
WEPRIN, WOERNER, BARRON, HARRIS, GJONAJ, SEPULVEDA, McDONALD --
Multi-Sponsored by -- M. of A. BRAUNSTEIN, BYRNE, GLICK, LOPEZ,
PERRY, RIVERA, STECK -- read once and referred to the Committee on
Health -- reported and referred to the Committee on Codes -- advanced
to a third reading, passed by Assembly and delivered to the Senate,
recalled from the Senate, vote reconsidered, bill amended, ordered
reprinted, retaining its place on 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;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01779-03-7
A. 516--A 2
1 2. A hotel or motel room rented to one or more guests;
2 3. Retail tobacco businesses;
3 4. Membership associations; provided, however, that smoking and vaping
4 shall only be allowed in membership associations in which all of the
5 duties with respect to the operation of such association, including, but
6 not limited to, the preparation of food and beverages, the service of
7 food and beverages, reception and secretarial work, and the security
8 services of the membership association are performed by members of such
9 membership association who do not receive compensation of any kind from
10 the membership association or any other entity for the performance of
11 such duties;
12 5. Cigar bars that, in the calendar year ending December thirty-first,
13 two thousand two, generated ten percent or more of its total annual
14 gross income from the on-site sale of tobacco products and the rental of
15 on-site humidors, not including any sales from vending machines, and is
16 registered with the appropriate enforcement officer, as defined in
17 subdivision one of section thirteen hundred ninety-nine-t of this arti-
18 cle. Such registration shall remain in effect for one year and shall be
19 renewable only if: (a) in the preceding calendar year, the cigar bar
20 generated ten percent or more of its total annual gross income from the
21 on-site sale of tobacco products and the rental of on-site humidors, and
22 (b) the cigar bar has not expanded its size or changed its location from
23 its size or location since December thirty-first, two thousand two;
24 6. Outdoor dining areas of food service establishments with no roof or
25 other ceiling enclosure; provided, however, that smoking and vaping may
26 be permitted in a contiguous area designated for smoking and vaping so
27 long as such area: (a) constitutes no more than twenty-five percent of
28 the outdoor seating capacity of such food service establishment, (b) is
29 at least three feet away from the outdoor area of such food service
30 establishment not designated for smoking and vaping, and (c) is clearly
31 designated with written signage as a smoking and vaping area; [and]
32 7. Enclosed rooms in food service establishments, bars, catering
33 halls, convention halls, hotel and motel conference rooms, and other
34 such similar facilities during the time such enclosed areas or rooms are
35 being used exclusively for functions where the public is invited for the
36 primary purpose of promoting and sampling tobacco products or electronic
37 cigarettes, and the service of food and drink is incidental to such
38 purpose, provided that the sponsor or organizer gives notice in any
39 promotional material or advertisements that smoking and vaping will not
40 be restricted, and prominently posts notice at the entrance of the
41 facility and has provided notice of such function to the appropriate
42 enforcement officer, as defined in subdivision one of section thirteen
43 hundred ninety-nine-t of this article, at least two weeks prior to such
44 function. The enforcement officer shall keep a record of all tobacco
45 sampling events, and such record shall be made available for public
46 inspection. No such facility shall permit smoking and vaping under this
47 subdivision for more than two days in any calendar year; and
48 8. Retail electronic cigarette stores, provided however, that such
49 stores may only permit the use of electronic cigarettes.
50 § 3. The article heading of article 13-E of the public health law, as
51 added by chapter 244 of the laws of 1989, is amended to read as follows:
52 ARTICLE 13-E
53 REGULATION OF SMOKING AND VAPING IN CERTAIN PUBLIC AREAS
54 § 4. Section 1399-o of the public health law, as amended by chapter
55 389 of the laws of 2011, subdivision 2 as amended by chapter 179 of the
56 laws of 2013, subdivision 3 as added by chapter 449 of the laws of 2012,
A. 516--A 3
1 and subdivision 4 as added by chapter 100 of the laws of 2015, is
2 amended to read as follows:
3 § 1399-o. Smoking and vaping restrictions. 1. Smoking and vaping shall
4 not be permitted and no person shall smoke or vape in the following
5 indoor areas:
6 a. places of employment;
7 b. bars;
8 c. food service establishments, except as provided in subdivision six
9 of section thirteen hundred ninety-nine-q of this article;
10 d. enclosed indoor areas open to the public containing a swimming
11 pool;
12 e. public means of mass transportation, including subways, underground
13 subway stations, and when occupied by passengers, buses, vans, taxicabs
14 and limousines;
15 f. ticketing, boarding and waiting areas in public transportation
16 terminals;
17 g. youth centers and facilities for detention as defined in sections
18 five hundred twenty-seven-a and five hundred three of the executive law;
19 h. any facility that provides child care services as defined in
20 section four hundred ten-p of the social services law, provided that
21 such services provided in a private home are excluded from this subdivi-
22 sion when children enrolled in such day care are not present;
23 i. child day care centers as defined in section three hundred ninety
24 of the social services law and child day care centers licensed by the
25 city of New York;
26 j. group homes for children as defined in section three hundred seven-
27 ty-one of the social services law;
28 k. public institutions for children as defined in section three
29 hundred seventy-one of the social services law;
30 l. residential treatment facilities for children and youth as defined
31 in section 1.03 of the mental hygiene law;
32 m. all public and private colleges, universities and other educational
33 and vocational institutions, including dormitories, residence halls, and
34 other group residential facilities that are owned or operated by such
35 colleges, universities and other educational and vocational insti-
36 tutions, except that these restrictions shall not apply in any off-cam-
37 pus residential unit occupied by a person who is not enrolled as an
38 undergraduate student in such college, university or other educational
39 or vocational institution;
40 n. general hospitals and residential health care facilities as defined
41 in article twenty-eight of this chapter, and other health care facili-
42 ties licensed by the state in which persons reside; provided, however,
43 that the provisions of this subdivision shall not prohibit smoking and
44 vaping by patients in separate enclosed rooms of residential health care
45 facilities, adult care facilities established or certified under title
46 two of article seven of the social services law, community mental health
47 residences established under section 41.44 of the mental hygiene law, or
48 facilities where day treatment programs are provided, which are desig-
49 nated as smoking and vaping rooms for patients of such facilities or
50 programs;
51 o. commercial establishments used for the purpose of carrying on or
52 exercising any trade, profession, vocation or charitable activity;
53 p. indoor arenas;
54 q. zoos; and
55 r. bingo facilities.
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1 2. Smoking and vaping shall not be permitted and no person shall smoke
2 or vape in the following outdoor areas:
3 a. ticketing, boarding or platform areas of railroad stations operated
4 by the metropolitan transportation authority or its subsidiaries.
5 b. on the grounds of general hospitals and residential health care
6 facilities as defined in article twenty-eight of this chapter, within
7 fifteen feet of a building entrance or exit or within fifteen feet of
8 the entrance to or exit from the grounds of any such general hospital or
9 residential health care facility. This subdivision shall not prohibit
10 smoking and vaping by a patient or a visitor or guest of a patient of a
11 residential health care facility in a separate area on the grounds
12 designated as a smoking and vaping area by the residential health care
13 facility, provided such designated smoking and vaping area is not within
14 thirty feet of any building structure (other than a non-residential
15 structure wholly contained within the designated smoking and vaping
16 area), including any overhang, canopy, awning, entrance, exit, window,
17 intake or exhaust.
18 3. Smoking and vaping shall not be permitted and no person shall smoke
19 or vape within one hundred feet of the entrances, exits or outdoor areas
20 of any public or private elementary or secondary schools; provided,
21 however, that the provisions of this subdivision shall not apply to
22 smoking or vaping in a residence, or within the real property boundary
23 lines of such residential real property. The provisions of section thir-
24 teen hundred ninety-nine-p of this article shall not apply to this
25 subdivision.
26 4. Smoking and vaping shall not be permitted and no person shall smoke
27 or vape within one hundred feet of the entrances, exits or outdoor areas
28 of any after-school program licensed or registered pursuant to section
29 three hundred ninety of the social services law; provided, however, that
30 the provisions of this subdivision shall only apply on those days and
31 during those hours in which such after-school programs are operational;
32 and provided, further, that the provisions of this subdivision shall not
33 apply to smoking or vaping in a residence, or within the real property
34 boundary lines of such residential real property.
35 § 5. Section 1399-o-1 of the public health law, as added by chapter
36 102 of the laws of 2013, is amended to read as follows:
37 § 1399-o-1. Smoking and vaping restrictions; certain outdoor areas. 1.
38 Smoking and vaping shall not be permitted and no person shall smoke or
39 vape during the hours between sunrise and sunset, when one or more
40 persons under the age of twelve are present at any playground. For the
41 purposes of this section, the term "playground" means an improved area
42 designed, equipped, and set aside for play of six or more children which
43 is not intended for use as an athletic playing field or athletic court,
44 and shall include any play equipment, surfacing, fencing, signs, inter-
45 nal pathways, internal land forms, vegetation, and related structures.
46 Playgrounds or playground equipment constructed upon one, two and three-
47 family residential real property are exempt from the requirements of
48 this section. This section shall not apply to any playground located
49 within the city of New York.
50 2. No police officer, peace officer, regulatory officer or law
51 enforcement official may arrest, ticket, stop or question any person
52 based solely or in part on an alleged violation of subdivision one of
53 this section, nor may an alleged violation of subdivision one of this
54 section support probable cause to conduct any search or limited search
55 of any person or his or her immediate surroundings.
A. 516--A 5
1 § 6. Section 1399-p of the public health law, as added by chapter 244
2 of the laws of 1989, subdivision 1 as amended by chapter 13 of the laws
3 of 2003, and subdivision 3 as added by chapter 100 of the laws of 2015,
4 is amended to read as follows:
5 § 1399-p. Posting of signs. 1. "Smoking" or "No Smoking" signs, or
6 "Vaping" or "No Vaping" signs, or the international "No Smoking" symbol,
7 which consists of a pictorial representation of a burning cigarette
8 enclosed in a circle with a bar across it, shall be prominently posted
9 and properly maintained where smoking [is] and vaping are regulated by
10 this article, by the owner, operator, manager or other person having
11 control of such area.
12 2. The owner, operator or manager of a hotel or motel that chooses to
13 develop and implement a smoking and vaping policy for rooms rented to
14 guests shall post a notice at the reception area of the establishment as
15 to the availability, upon request, of rooms in which no smoking [is] and
16 vaping are allowed.
17 3. The provisions of this section shall apply to after-school programs
18 that are subject to the provisions of subdivision four of section thir-
19 teen hundred ninety-nine-o of this article, provided that signs posted
20 pursuant to this subdivision shall specify the specific time period
21 during which smoking and vaping shall be prohibited.
22 § 7. Section 1399-r of the public health law, as added by chapter 244
23 of the laws of 1989, is amended to read as follows:
24 § 1399-r. General provisions. 1. Nothing in this article shall be
25 construed to deny the owner, operator or manager of a place covered by
26 this article the right to designate the entire place, or any part there-
27 of, as a nonsmoking and nonvaping area.
28 2. The provisions of this article shall apply to the legislative,
29 executive and judicial branches of state government and any political
30 subdivision of the state.
31 3. Smoking and vaping may not be permitted where prohibited by any
32 other law, rule, or regulation of any state agency or any political
33 subdivision of the state. Nothing herein shall be construed to restrict
34 the power of any county, city, town, or village to adopt and enforce
35 additional local law, ordinances, or regulations which comply with at
36 least the minimum applicable standards set forth in this article.
37 § 8. Section 1399-s of the public health law, as amended by chapter 13
38 of the laws of 2003, is amended to read as follows:
39 § 1399-s. Violations. 1. It shall be unlawful for any person, firm,
40 limited liability company, corporation or other entity that owns,
41 manages, operates or otherwise controls the use of an area in which
42 smoking and vaping is prohibited or restricted pursuant to section thir-
43 teen hundred ninety-nine-o of this article to fail to comply with the
44 provisions of this article. For violations of this subdivision, it shall
45 be an affirmative defense that during the relevant time period actual
46 control of the area was not exercised by the respondent, but rather by a
47 lessee, the sublessee or any other person. To establish an affirmative
48 defense, the respondent shall submit an affidavit and may submit any
49 other relevant proof indicating that the respondent did not exercise
50 actual control of said area during the relevant time period. Such affi-
51 davit and other proof shall be mailed by certified mail to the appropri-
52 ate enforcement officer within thirty days of receipt of such notice of
53 violation.
54 2. It shall be unlawful for an employer whose place of employment is
55 subject to subdivision one of section thirteen hundred ninety-nine-o of
56 this article to fail to comply with the provisions of such subdivision.
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1 For violations of such subdivision, it shall be an affirmative defense
2 that the employer has made good faith efforts to ensure that employees
3 comply with the provisions of this article.
4 3. It shall be unlawful for any person to smoke or vape in any area
5 where smoking and vaping is prohibited or restricted under section
6 thirteen hundred ninety-nine-o of this article.
7 § 9. Subdivision 4 of section 1399-t of the public health law, as
8 amended by chapter 13 of the laws of 2003, is amended to read as
9 follows:
10 4. The owner, manager, operator or other person having control of any
11 area subject to the provisions of this article, shall inform, or shall
12 designate an agent who shall be responsible for informing individuals
13 smoking or vaping in an area in which smoking or vaping is not permitted
14 that they are in violation of this article.
15 § 10. Subdivision 2 of section 1399-u of the public health law, as
16 amended by chapter 13 of the laws of 2003, is amended to read as
17 follows:
18 2. Every waiver granted shall be subject to such conditions or
19 restrictions as may be necessary to minimize the adverse effects of the
20 waiver upon persons subject to an involuntary exposure to second-hand
21 smoke or vaping and to ensure that the waiver is consistent with the
22 general purpose of this article.
23 § 11. Section 1399-w of the public health law, as added by chapter 244
24 of the laws of 1989, is amended to read as follows:
25 § 1399-w. Limitation of causes of action. An employer, administrator,
26 manager, owner or operator of any indoor area, food service establish-
27 ment, or place of employment regulated by this article who complies or
28 fails to comply with the provisions of this article shall not be subject
29 to any legal liability or action solely as a result of such compliance
30 or noncompliance except as provided in section thirteen hundred ninety-
31 nine-v of this article. Nothing in any other section of this article
32 shall be construed to create, impair, alter, limit, modify, enlarge,
33 abrogate or restrict any theory of liability upon which any person may
34 be held liable to any other person for exposure to smoke or vaping.
35 § 12. Section 1399-x of the public health law, as amended by chapter
36 389 of the laws of 2011, is amended to read as follows:
37 § 1399-x. Rules and regulations. The commissioner shall not promulgate
38 any rules or regulations to effectuate the provisions of section thir-
39 teen hundred ninety-nine-n, paragraph f of subdivision one of section
40 thirteen hundred ninety-nine-o or subdivision one of section thirteen
41 hundred ninety-nine-p of this article. The commissioner shall not
42 promulgate any rules or regulations that create, limit or enlarge any
43 smoking or vaping restrictions.
44 § 13. This act shall take effect on the thirtieth day after it shall
45 have become a law; provided, however, that effective immediately, the
46 addition, amendment and/or repeal of any rule or regulation necessary
47 for the implementation of this act on its effective date is authorized
48 and directed to be made and completed on or before such effective date.
