S T A T E O F N E W Y O R K
________________________________________________________________________
2543--A
Cal. No. 646
2017-2018 Regular Sessions
I N S E N A T E
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:
Section 1. Section 1399-n of the public health law is amended by
adding three new subdivisions 9, 10 and 11 to read as follows:
9. "VAPING" MEANS THE USE OF AN ELECTRONIC CIGARETTE.
10. "ELECTRONIC CIGARETTE" SHALL HAVE THE SAME MEANING AS IN SUBDIVI-
SION THIRTEEN OF SECTION THIRTEEN HUNDRED NINETY-NINE-AA OF THIS CHAP-
TER.
11. "RETAIL ELECTRONIC CIGARETTE STORE" MEANS A RETAIL STORE DEVOTED
PRIMARILY TO THE SALE OF ELECTRONIC CIGARETTES, 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 TWENTY-
FIVE PERCENT OF THE TOTAL ANNUAL GROSS SALES.
§ 2. Section 1399-q of the public health law, as amended by chapter 13
of the laws of 2003, is amended to read as follows:
§ 1399-q. Smoking AND VAPING restrictions inapplicable. This article
shall not apply to:
1. Private homes, private residences and private automobiles;
2. A hotel or motel room rented to one or more guests;
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
4. Membership associations; provided, however, that smoking AND VAPING
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;
5. Cigar bars that, in the calendar year ending December thirty-first,
two thousand two, 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 appropriate enforcement officer, as defined in
subdivision one of section thirteen hundred ninety-nine-t of this arti-
cle. Such registration shall remain in effect for one year and shall be
renewable only if: (a) in the preceding calendar year, the cigar 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
(b) the cigar bar has not expanded its size or changed its location from
its size or location since December thirty-first, two thousand two;
6. Outdoor dining areas of food service establishments with no roof or
other ceiling enclosure; provided, however, that smoking AND VAPING may
be permitted in a contiguous area designated for smoking AND VAPING so
long as such area: (a) constitutes no more than twenty-five percent of
the outdoor seating capacity of such food service establishment, (b) is
at least three feet away from the outdoor area of such food service
establishment not designated for smoking AND VAPING, and (c) is clearly
designated with written signage as a smoking AND VAPING area; [and]
7. Enclosed rooms in food service establishments, bars, catering
halls, convention halls, hotel and motel conference rooms, and other
such similar facilities during the time such 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 OR ELECTRONIC
CIGARETTES, and the service of food and drink is incidental to such
purpose, provided that the sponsor or organizer gives notice in any
promotional material or advertisements that smoking AND VAPING will not
be restricted, and prominently posts notice at the entrance of the
facility and has provided notice of such function to the appropriate
enforcement officer, as defined in subdivision one of section thirteen
hundred ninety-nine-t of this article, at least two weeks prior to such
function. The enforcement officer shall keep a record of all tobacco
sampling events, and such record shall be made available for public
inspection. No such facility shall permit smoking AND VAPING under this
subdivision for more than two days in any calendar year; AND
8. RETAIL ELECTRONIC CIGARETTE STORES, PROVIDED HOWEVER, THAT SUCH
STORES MAY ONLY PERMIT THE USE OF ELECTRONIC CIGARETTES.
§ 3. The article heading of article 13-E of the public health law, as
added by chapter 244 of the laws of 1989, is amended to read as follows:
ARTICLE 13-E
REGULATION OF SMOKING AND VAPING IN CERTAIN PUBLIC AREAS
§ 4. Section 1399-o of the public health law, as amended by chapter
389 of the laws of 2011, subdivision 2 as amended by chapter 179 of the
laws of 2013, subdivision 3 as added by chapter 449 of the laws of 2012,
and subdivision 4 as added by chapter 100 of the laws of 2015, is
amended to read as follows:
S. 2543--A 3
§ 1399-o. Smoking AND VAPING restrictions. 1. Smoking AND VAPING shall
not be permitted and no person shall smoke OR VAPE in the following
indoor areas:
a. places of employment;
b. bars;
c. food service establishments, except as provided in subdivision six
of section thirteen hundred ninety-nine-q of this article;
d. enclosed indoor areas open to the public containing a swimming
pool;
e. public means of mass transportation, including subways, underground
subway stations, and when occupied by passengers, buses, vans, taxicabs
and limousines;
f. ticketing, boarding and waiting areas in public transportation
terminals;
g. youth centers and facilities for detention as defined in sections
five hundred twenty-seven-a and five hundred three of the executive law;
h. any facility that provides child care services as defined in
section four hundred ten-p of the social services law, provided that
such services provided in a private home are excluded from this subdivi-
sion when children enrolled in such day care are not present;
i. child day care centers as defined in section three hundred ninety
of the social services law and child day care centers licensed by the
city of New York;
j. group homes for children as defined in section three hundred seven-
ty-one of the social services law;
k. public institutions for children as defined in section three
hundred seventy-one of the social services law;
l. residential treatment facilities for children and youth as defined
in section 1.03 of the mental hygiene law;
m. all public and private colleges, universities and other educational
and vocational institutions, including dormitories, residence halls, and
other group residential facilities that are owned or operated by such
colleges, universities and other educational and vocational insti-
tutions, except that these restrictions shall not apply in any off-cam-
pus residential unit occupied by a person who is not enrolled as an
undergraduate student in such college, university or other educational
or vocational institution;
n. general hospitals and residential health care facilities as defined
in article twenty-eight of this chapter, and other health care facili-
ties licensed by the state in which persons reside; provided, however,
that the provisions of this subdivision shall not prohibit smoking AND
VAPING by patients in separate enclosed rooms of residential health care
facilities, adult care facilities established or certified under title
two of article seven of the social services law, community mental health
residences established under section 41.44 of the mental hygiene law, or
facilities where day treatment programs are provided, which are desig-
nated as smoking AND VAPING rooms for patients of such facilities or
programs;
o. commercial establishments used for the purpose of carrying on or
exercising any trade, profession, vocation or charitable activity;
p. indoor arenas;
q. zoos; and
r. bingo facilities.
2. Smoking AND VAPING shall not be permitted and no person shall smoke
OR VAPE in the following outdoor areas:
S. 2543--A 4
a. ticketing, boarding or platform areas of railroad stations operated
by the metropolitan transportation authority or its subsidiaries.
b. on the grounds of general hospitals and residential health care
facilities as defined in article twenty-eight of this chapter, within
fifteen feet of a building entrance or exit or within fifteen feet of
the entrance to or exit from the grounds of any such general hospital or
residential health care facility. This subdivision shall not prohibit
smoking AND VAPING by a patient or a visitor or guest of a patient of a
residential health care facility in a separate area on the grounds
designated as a smoking AND VAPING area by the residential health care
facility, provided such designated smoking AND VAPING area is not within
thirty feet of any building structure (other than a non-residential
structure wholly contained within the designated smoking AND VAPING
area), including any overhang, canopy, awning, entrance, exit, window,
intake or exhaust.
3. Smoking AND VAPING shall not be permitted and no person shall smoke
OR VAPE within one hundred feet of the entrances, exits or outdoor areas
of any public or private elementary or secondary schools; provided,
however, that the provisions of this subdivision shall not apply to
smoking OR VAPING in a residence, or within the real property boundary
lines of such residential real property. The provisions of section thir-
teen hundred ninety-nine-p of this article shall not apply to this
subdivision.
4. Smoking AND VAPING shall not be permitted and no person shall smoke
OR VAPE within one hundred feet of the entrances, exits or outdoor areas
of any after-school program licensed or registered pursuant to section
three hundred ninety of the social services law; provided, however, that
the provisions of this subdivision shall only apply on those days and
during those hours in which such after-school programs are operational;
and provided, further, that the provisions of this subdivision shall not
apply to smoking OR VAPING in a residence, or within the real property
boundary lines of such residential real property.
§ 5. Section 1399-o-1 of the public health law, as added by chapter
102 of the laws of 2013, is amended to read as follows:
§ 1399-o-1. Smoking AND VAPING restrictions; certain outdoor areas. 1.
Smoking AND VAPING shall not be permitted and no person shall smoke OR
VAPE during the hours between sunrise and sunset, when one or more
persons under the age of twelve are present at any playground. For the
purposes of this section, the term "playground" means an improved area
designed, equipped, and set aside for play of six or more children which
is not intended for use as an athletic playing field or athletic court,
and shall include any play equipment, surfacing, fencing, signs, inter-
nal pathways, internal land forms, vegetation, and related structures.
Playgrounds or playground equipment constructed upon one, two and three-
family residential real property are exempt from the requirements of
this section. This section shall not apply to any playground located
within the city of New York.
2. No police officer, peace officer, regulatory officer or law
enforcement official may arrest, ticket, stop or question any person
based solely or in part on an alleged violation of subdivision one of
this section, nor may an alleged violation of subdivision one of this
section support probable cause to conduct any search or limited search
of any person or his or her immediate surroundings.
§ 6. Section 1399-p of the public health law, as added by chapter 244
of the laws of 1989, subdivision 1 as amended by chapter 13 of the laws
S. 2543--A 5
of 2003, and subdivision 3 as added by chapter 100 of the laws of 2015,
is amended to read as follows:
§ 1399-p. Posting of signs. 1. "Smoking" or "No Smoking" signs, OR
"VAPING" OR "NO VAPING" SIGNS, or the international "No Smoking" symbol,
which consists of a pictorial representation of a burning cigarette
enclosed in a circle with a bar across it, shall be prominently posted
and properly maintained where smoking [is] AND VAPING ARE regulated by
this article, by the owner, operator, manager or other person having
control of such area.
2. The owner, operator or manager of a hotel or motel that chooses to
develop and implement a smoking AND VAPING policy for rooms rented to
guests shall post a notice at the reception area of the establishment as
to the availability, upon request, of rooms in which no smoking [is] AND
VAPING ARE allowed.
3. The provisions of this section shall apply to after-school programs
that are subject to the provisions of subdivision four of section thir-
teen hundred ninety-nine-o of this article, provided that signs posted
pursuant to this subdivision shall specify the specific time period
during which smoking AND VAPING shall be prohibited.
§ 7. Section 1399-r of the public health law, as added by chapter 244
of the laws of 1989, is amended to read as follows:
§ 1399-r. General provisions. 1. Nothing in this article shall be
construed to deny the owner, operator or manager of a place covered by
this article the right to designate the entire place, or any part there-
of, as a nonsmoking AND NONVAPING area.
2. The provisions of this article shall apply to the legislative,
executive and judicial branches of state government and any political
subdivision of the state.
3. Smoking AND VAPING may not be permitted where prohibited by any
other law, rule, or regulation of any state agency or any political
subdivision of the state. Nothing herein shall be construed to restrict
the power of any county, city, town, or village to adopt and enforce
additional local law, ordinances, or regulations which comply with at
least the minimum applicable standards set forth in this article.
§ 8. Section 1399-s of the public health law, as amended by chapter 13
of the laws of 2003, is amended to read as follows:
§ 1399-s. Violations. 1. It shall be unlawful for any person, firm,
limited liability company, corporation or other entity that owns,
manages, operates or otherwise controls the use of an area in which
smoking AND VAPING is prohibited or restricted pursuant to section thir-
teen hundred ninety-nine-o of this article to fail to comply with the
provisions of this article. For violations of this subdivision, it shall
be an affirmative defense that during the relevant time period actual
control of the area was not exercised by the respondent, but rather by a
lessee, the sublessee or any other person. To establish an affirmative
defense, the respondent shall submit an affidavit and may submit any
other relevant proof indicating that the respondent did not exercise
actual control of said area during the relevant time period. Such affi-
davit and other proof shall be mailed by certified mail to the appropri-
ate enforcement officer within thirty days of receipt of such notice of
violation.
2. It shall be unlawful for an employer whose place of employment is
subject to subdivision one of section thirteen hundred ninety-nine-o of
this article to fail to comply with the provisions of such subdivision.
For violations of such subdivision, it shall be an affirmative defense
S. 2543--A 6
that the employer has made good faith efforts to ensure that employees
comply with the provisions of this article.
3. It shall be unlawful for any person to smoke OR VAPE in any area
where smoking AND VAPING is prohibited or restricted under section
thirteen hundred ninety-nine-o of this article.
§ 9. Subdivision 4 of section 1399-t of the public health law, as
amended by chapter 13 of the laws of 2003, is amended to read as
follows:
4. The owner, manager, operator or other person having control of any
area subject to the provisions of this article, shall inform, or shall
designate an agent who shall be responsible for informing individuals
smoking OR VAPING in an area in which smoking OR VAPING is not permitted
that they are in violation of this article.
§ 10. Subdivision 2 of section 1399-u of the public health law, as
amended by chapter 13 of the laws of 2003, is amended to read as
follows:
2. Every waiver granted shall be subject to such conditions or
restrictions as may be necessary to minimize the adverse effects of the
waiver upon persons subject to an involuntary exposure to second-hand
smoke OR VAPING and to ensure that the waiver is consistent with the
general purpose of this article.
§ 11. Section 1399-w of the public health law, as added by chapter 244
of the laws of 1989, is amended to read as follows:
§ 1399-w. Limitation of causes of action. An employer, administrator,
manager, owner or operator of any indoor area, food service establish-
ment, or place of employment regulated by this article who complies or
fails to comply with the provisions of this article shall not be subject
to any legal liability or action solely as a result of such compliance
or noncompliance except as provided in section thirteen hundred ninety-
nine-v of this article. Nothing in any other section of this article
shall be construed to create, impair, alter, limit, modify, enlarge,
abrogate or restrict any theory of liability upon which any person may
be held liable to any other person for exposure to smoke OR VAPING.
§ 12. Section 1399-x of the public health law, as amended by chapter
389 of the laws of 2011, is amended to read as follows:
§ 1399-x. Rules and regulations. The commissioner shall not promulgate
any rules or regulations to effectuate the provisions of section thir-
teen hundred ninety-nine-n, paragraph f of subdivision one of section
thirteen hundred ninety-nine-o or subdivision one of section thirteen
hundred ninety-nine-p of this article. The commissioner shall not
promulgate any rules or regulations that create, limit or enlarge any
smoking OR VAPING restrictions.
§ 13. This act shall take effect on the thirtieth day after it shall
have become a law; provided, however, that effective immediately, the
addition, amendment and/or repeal of any rule or regulation necessary
for the implementation of this act on its effective date is authorized
and directed to be made and completed on or before such effective date.
