S T A T E O F N E W Y O R K
________________________________________________________________________
1838
2021-2022 Regular Sessions
I N A S S E M B L Y
January 11, 2021
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee on Health
AN ACT to amend the public health law, in relation to excluding patios
and other outdoor areas on the premises of any entity licensed to
operate a video lottery gaming facility from restrictions of the Clean
Indoor Air act
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 1399-q of the public health law, as amended by
chapter 335 of the laws of 2017, 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;
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00271-01-1
A. 1838 2
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;
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; AND
9. PATIOS AND OTHER OUTDOOR AREAS ON THE PREMISES OF ANY ENTITY
LICENSED TO OPERATE A VIDEO LOTTERY GAMING FACILITY PURSUANT TO SECTION
ONE THOUSAND SIX HUNDRED SEVENTEEN-A OF THE TAX LAW WHICH ARE COVERED BY
A ROOF OR OTHER CEILING ENCLOSURE; PROVIDED THAT SUCH COVERED PATIO OR
OTHER OUTDOOR AREA MUST BE CLEARLY DESIGNATED AS A SMOKING AREA, AND
MUST EITHER (A) BE COMPLETELY OPEN ON AT LEAST ONE SIDE, WITH NO WALL ON
ONE SIDE, OR (B) BE OPEN ON TWO OR MORE SIDES, WITH PARTIAL WALLS ON THE
TWO OR MORE OPEN SIDES TO THE HEIGHT OF NOT MORE THAN FIFTY PERCENT OF
THE DISTANCE BETWEEN THE FLOOR AND CEILING. AIR PERMEABLE MATERIALS
WHICH FUNCTION AS A WEATHER BARRIER AND WHICH DO NOT PROVIDE A RIGID
PARTITION SHALL BE DISREGARDED FOR PURPOSES OF DETERMINING WHETHER A
COVERED PATIO OR OTHER OUTDOOR AREA IS OPEN ON ONE, TWO OR MORE SIDES.
JURISDICTION IN ALL MATTERS PERTAINING TO A SMOKING AREA ON PATIOS AND
OTHER OUTDOOR AREAS ON THE PREMISES OF ANY ENTITY LICENSED TO OPERATE A
VIDEO LOTTERY GAMING FACILITY PURSUANT TO SECTION ONE THOUSAND SIX
HUNDRED SEVENTEEN-A OF THE TAX LAW IN THIS STATE IS VESTED EXCLUSIVELY
IN THE STATE. ANY PROVISION OF ANY LOCAL LAW OR ORDINANCE, OR ANY RULE
OR REGULATION PROMULGATED THERETO, GOVERNING OR PROHIBITING A SMOKING
AREA ON PATIOS AND OTHER OUTDOOR AREAS ON THE PREMISES OF ANY ENTITY
LICENSED TO OPERATE A VIDEO LOTTERY GAMING FACILITY PURSUANT TO SECTION
ONE THOUSAND SIX HUNDRED SEVENTEEN-A OF THE TAX LAW IN THE STATE SHALL,
UPON THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND TWEN-
TY-ONE WHICH ADDED THIS SUBDIVISION, BE PREEMPTED.
§ 2. This act shall take effect immediately.