Tobacco Documents Online

APPE:ZLy BI A LO C.?.I. LAW To amend the administrative code of the city of New York, in relation to the control of' poliiltion from smoking; Be it enacted by the CitY' CouneiP as foll©ws :~ Section 1. Declaration of' legislative findings and intent. The council' hereby finds and! declares that: Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution;, and Reliable studies have shown that breathing' second-hand smoke is & significant heaith hazard for several population grrmups,, inc!liding the eiderl{y people, iindividuaLs with cardiovascular disease, and individuals with impaired respiratory function, including asthmaucs and those with obstructive airway disease; and Health hazards induced by breathing, second-handi smoke: include lung, cancer, respiratory infection, decreased exercise tolerance,, increased respiratory infection, bronchoconstriction, and bronchospasm; and N'onsmokars who suffer from allergies, respiratot^y diseases and other ill' effects of' breathing seuondhand, smoke may experience a loss of job: productiv'ity or may, be forced to take periodic sick leave because of such~adverse reactions; and Numerous studies have: shown that a majprity of both nonsmokers and smokers desire that there be restrictions on smoking in public places and places, of' employment; and Smoking is a potentiai cause of fires, and cigarette and cigar, burns and ash stains on merchandise and, f'ixtures, causing losses to businesses. Accordingly, the council finds and deciares thnt the purposea of this law are (1) to protect the public heaith, and welfare by prohibiting siuoi¢ing in public places except in areas dQsignated for smokiiig and by regula¢ing smoking in places, of employment; and (2) 8'SV^18aTJ!.,7

toi strike a reasonable balance, between persons who smoke and t.hee right of nonsmokers to breat'he smoke-free air,, and to recogni¢e ::hat,, where needs conflict, the need to breathe smoke-free air shall have priority'. !2'. Title seventeen of the administrative code of the city of New York is amended by adding, a new chapter five to read as follows:, CHt1PTER FIVE Sb1OKING BOT.LUTIONi CONTROL fi1'7-501 Short title. This chapter shall be known and mav be cited as' the "Smcir•W-:~ Pollution, Control Law". 917-51D2 Definitions. As used in, this chante'r, the followinQ' terms shall have the foll'owinsz'meaninzs: a. "Bar" means an area which is devoted to the servinK of alcoholic beverazes for consumption b_v Auests, an the premises and in which the serving of foodi is only inddentaI to the consumption of' such me.eraQes. A.lthouLrh a restaurant may' contain a bar, the~ term "bar" shall riot include the dininst area of'the restaurant. b. "Business" means any sole prolDrietorshiD, Qrtnership, ioint vonture, corpora+i;on or ot;;er business entity formed for profit-rnalansr purposes, inciudinic ret;ail est'abliyhments where goods or servzces are soid'as well as orofessional' corporations' and, other entities where '.egal, medieal, dental,, enRineerinQ, arc'r.itecturnl or other arofessional services are Drovided. c., "Cbmmissioner" means the commissioner of the New York city deflartment of health. d. "Dapartment" means the New Y'orK (ntv: departasent of health. a.., ")'ini~ast_ attia,• 7feins.[cl. orenwntalrun ;, a~ cou'nter'or tables uuon,which,foad is served.. -2-

f. "Etnployee" means any person who is empioyed' b)7 any employer in consid'eration for direct or indirect monetary waqes or orofit, and any person, who volunteers his or her services for a non-profit entity. ir. "EmploVer" means any person, partnership, corporation,, includin¢ the city of New York and agencies thereof, includin¢ the board of education, or non-profit entitv, which emplovs one or more persons. h. "Ehclosed areW' means alll sDace between, a floor and' ceilln¢, which, is enclosed on, all sides by solid waiLg or windows (exclusive of door, stairway or passage ways) which extend from the floor to the ceilin¢. i. "'.Vtiotion picture theater" means a motion picture theater required to be licensed by the department of consumer affairs pursuant to section 20-203 of the code. j. "Non-orofit, entity" means any corporation,, uninicoryoratQd association or other entity created for charitable, pliilsnthropic, edhicat'ionai„ character buildinsr; political,social or other similar purposes, tt<s net nroceeds from che operations of which are cammftted to the prommtion of the objects er vurposes of the qraani¢at¢ons and not to nriyate financisil qain. A public agency is not a"non-orofit entzty" withia this meanine of' this subdivisiom. k. "place of empiovmQr.t" means any Rrea inder the controi of an employer which employees normallY freguent durin¢ the course of emp{oyments inciwd.inQ, but not: lim.ited to, wmrit areas, emniovee, lounges and • restrooms, eneif^-enc-' :nii _:a_=s ?o,)ms, --lleterrns and tialiways, but not includin;T an area where

persons are detained therein for Denal, or correctional! purposes., .a private residence is ror. & "place of empioyment" within the meaning of this subdivision unless a chilti, care, or health care facility is operated therein or unless it is a common, area of a multiple dwellinQ which contains ten or more d+wellin¢ units. The dininq area, of a restaurant is not a"rlace of emplovtaent" within, the meanin¢ of this subdiwision. 1., "Private function" means wedldi.n¢s, aartaes. testrimonial dinners and other simidar functions inn which the seatinZ arran¢ements are under the controll of, the art$nizer or sponsor of the function and' npt' the, tnerson who, owns,, manwps,,, operates or otherwise controls the use of the place in which the function is held. m. "Public place" means any area to which, the public is invited or permitted, incl'udinQ„ but r.ot limited to, banks, edlsrstional facilities, health care: facilfties, mails, property owned, occupied or operated by the GitF of' Yb.v York or ap azency thereof, public transportation fae^lities, reception areas, restaurants„ retail service establishments, retail stores, theatres and waitinSL' troms. A grltate, residence is not a"public ^lace" withia the mcanine of this subditisi,on, except for the common areas of a multiple dwellinq wttich centai,ns_ten or rnnx+e; dwelli:nst tln.its. n. "Rpstaurant" means any' coffee shop, cafeteria,: luncheonette, tavern, cocktail lounqe, sandwich stand, soda fountain, and' any other eatin¢, establishment, orzanization, club, fraternal orQanization, boardinlChonsQ, or 0ueethouse, which g2ves or offers for sale frod to the oublic, -,u4sts or oatror.a, vr,hPther fond ~ c;stomar~ consumed on or off the wremisew but not an -4 r

estabiishment the Drimary ournose of whirh :s lo serve food to emplovees of a common emploVer or tp students of a common educational institution., o6"Ret'ail tobacco store" means a retail store in which the primary activity is the sale of tobacco, tobacco prodtrcts and' accessories and in which the: sale of other prodtilcts is' merelF' incidental. p."Seryice. ;.ine" CSeansaqueue:, line or other' formation, ofl nersons, whether seated or st.andlng, in which one or more uersons are waitinq f,or, providing or receivinZ,, service of any icind', whether or not such' service involves an exchanZe of consideration. 4i. "Smokine' means' itihalin¢, exhal{nZ,, burnin2Z or carr7inz ' anP' lfghted cigar, cizarette', pipe, or any form of liiLhted! obiect or device whichh contains tobacco, r. "Snorts arenas"' means swrts paviiions, vva+nmsiums,, health spas, boxinQ' arenas,, swimmin¢ nools, roiler and ice: skatinkr rinks,, bowiintr allpys and other similar places where membQrs of the 2eneral public assemble either, to enctasLe in phvslcsl exercise, particinate in athletic compotition or witness snorts or similar events., 31!7-903 Prohibitign of smoldng in nublic places. a. fmnkin2 is Drnhibited in a11 enclosed arefv: within puhlic Dlaces, during the times in which the' Dublic is in:itedi or oermitted, inciudinQ, hut not limited to, enclised! areeu, within the f~llowlS public places: , (1) Public transaortation facilities, includinZ, but: not limitedi to, ticket, boarding. , and waiting areas of nublie t'ranslt, depots; prov'ided, however, that this section shail not nrohibit smokinQ in; one, or moro contiguous waitinQ areas, desi¢nated' for smolanQ so lonyZ' as such areas do, -5-

not constitute more than fifty t•;ercent of' 'de, ctaii waiting area in the vublic transit deoon, suchi percEnta¢e shall be determined in accordance: with rules and re¢ulations tDromul'qated by the commissioner. (2) Restrooms., (3) Retail' stores and retail' service establishments other than retail tobacco storesi and areas. in restaurants designated for smokihQ nu:rsuant, to paraqraph five of this subdivision. ('4)1 A1D areas in w,hich, the aublic is invited~ or permitted in, any business or non-proiit entit7 includinQ, but not limirted to._ legal, medicall and dental offices. and other offices, banks, hotels and motels. (5)' Restauraats;, provided, however„ that *.his section, shall not orohibit smokinZ in a, contir.icus area within a restaurant designated for smoicin~* which contains no more than fifty percent af' the seatin¢ eapacity of' the restaurant, and further provided that smakinst' is not prohibited in any part' of a restaurant which is a, bar.. (5), Acuariums, zaileries, libraries and museums. (7) 1Kotion picture theaters and buildings primariTV used for, or desiqned fer the prinarv purpoae of cxhibitinjZ an*I sta¢e, drama, ?ecture., musical' trcit-l or vher strruizr cer%,±r^~ancr, excnpt, when smokinQ is t7art of' a: 9tag,- production; vrovided, however, that this section shall not prohibit smokinst in a conticvous area desi¢nated for smoking containing no more than fifty percent, of any area commonly' called a lobbv,, such nercents¢e shn1T be determined in accordance with rules and razulations nromulqated by *.he commissioner. -8-

(8'), Convention halls and sports, arenas • provided„ however„ that this section shall not prohibit' smokin¢ in a contiguous area designated for stnohinZ containinZ no more than fiftv' percent of any area commonlV: called a Ibbby' such percentage shsll be determined in accordance withh rules and re¢ulhtions promulZatedi bk the commissioner. (9Y Places of ineetfn2 or public assemblV durir.q such time as a, meetintt ooen, to: the nublic is being conducted, but not inciudin¢ meetings conductedi in private residences,, unless the meeting is conductedi in a common area of a multdple dwellYnz which, contains ten or more dkvellinZ units.. (10) Health care facilities includin¢, but not ]tmi'ted to, hospitals, clinics, phzJsical therapu facilitfes, convalescent homes, homes for the aged; proa'ided!, however, that this section shalU not prohibit, smokih¢ in areas desi¢nated for staoldnpC in restaurants and dininQ areas and in offices which are not ordinnriiv used: for care and treatment of' patients as IbnQ as (:4!) prior written~ approval is received from the fire commissioner pursuant to section 27-4276 of' the code and (B) smoking iit, such restaurants and dinin$ areas is not' otherwise prohibited nursuant to naragrann five of this subdivision 3nd smoisjnZ in offices wtii:ch, are, not ordinaM~y u_ed_ for care an6 treatment of, patients is not otherwise: prohibitPd pursuant to section 17-504. In addition this section shail not nrohibit smoltin¢ in natienr ~ kbun¢es desi¢nated for smoking, pmvided fhat, ~ (A): prior written anproval is received from the xb fire commissioner nursuant to section 27=4276 of ~ the code and (B) such tounQes shall not: CA ' -7-

constitute more than fiftv oercent of the totai loun¢e space available. (111) All pre-primara, nrimary, and secondarv schools providinQ instruction for studpnts at, or below the tsveifth-Ztsde level; proaidpdl„ however, that this section, shall not prohibit, smoking in, areas desi¢nated for smoldnq, in, employee dininq areas, lbunrres, or administrative aff'.ces, so lon$ as~ (A) prior written aDproval is received from, the fire commissioner. and (B) smoking in such areas is not, otherwise prohibited pursuant `o secuon 1i7=504. (12) A11 schools other than those covered in para¢rsph eleven of t'his~ subdivision, incltrdinst,, but, not limited to, communitV: coLle$es, techrticai training establishmenss, stecia:ltq schools, collesses and universities; orovided,, however, that this section, shalli not prohibit smokin$ in: Areas desiznated for smoki.ng in employee iunchzrooms, cafeterias, and lbllnEes, Dursuan2i to~raraQZaph three of subdivision b of section 17=504, provided that prior, written approval is received from the £im commissioner. (3) Areas desienated for snoi¢1nq ip student dinin¢ areas or !ounaes which shall constitute not less than fifty percent of the seat,irrA capacity or floor s ce , whiehever is streater; of such, student dinin~ areas or lounRes, provided that, prior written approoal is recrived from the fire commissioner. (13) Elevatars -8-

b., SmokinZ is~ prohibited in the followinq •rerucies: durinz tunes in which the public is invited or perttntted!: (1) Ruses, and other vehicles of pubiic transport. (2) Ta~dcabs, required to be !icensed' by the tac:i~ and dmousine: commission: pursuant to section 19-504 of the code. ('3)~ Limousines, required ta be licensed by the taxi and limousine commission pursuant to section 19-504 of the code. (4) Wheeict'aair , accessible vans, reguired to be licensed 5w the tsaci and limousine commission, nursuant to section 19-504 of the code. c. Smoking is nrohibited on, any service Line, or oortioni thereof, in an enclosed area within a Dublic, nlace dur.n¢, the times in which the z7ublic is invited' or permitted, notwitlistandinq the fact that the service une, or portion thereof, notwithstanding the fact ttat, thee service line, or portion thereof, is in an area otherwise: desiqnatedd for smoicia¢ oursuant to subd:ivision a of this section. This subdivision shall not be construed to vrohibit, smokin$ in anv area where smokir.t is not orohibited pursuant to section 17'-505. !'17'-504 ReQwation, of smoking in places of employment. a. It shall be the responsibilitV of' employers to provide smoke fnee~ areas for emDloyees workeing within enciosed are" in nlaces n8 employment to the maximum extent possible. b. Within ninety davs after the effective date of this chapter, every employer h4vinz emplovees working wittiin enclosed areas in places of emploument' shall adotDt„ iiaDlement,maite known and maintain a written itaokinZ poiicv which, shalli rnntain at a rninimum the fullbwin¢ reguirements:, (1) ', Any emniovee in a clace of empioyment shall have~ the riqnt to ciesi,gnate his or her work area as a nonsmokin.g area, and t'oi post' suchi designation with, an: apOropriate 7iQn orr si1[Tls., t'o, be provided byr the employer. If, due to the nroximitv of persons smoianst; size of the work area„ poor ventilation or other factors:, such, desiQast:ioni does not reducs; the effects of smoke, thee emnloyer sha11 ma4te additionai reasonable accommodation bv ^eassi¢ninq ±'he emplovee tai 3 different work, area, expandinQ the size of the, wnrk, area -9-

subiect to the prohibition a¢ainst smokinz or, imnlemenL^ng other measures reasonablK designed to minim;Ze or eitimi^.ate, the effects of smoke on the emrlovee., LU Prohibition of smokinq, in auditoriums.,, class rooms, conference and meetinq rooms, elevators, hallwavs, emplbyee medicall facilities and' restrooms. (3) Provision and! maintenance of contiguous areas or entire rooms in which smolang is prohibited, which, snall constitutee not less than fift?d' nereent of *.he seating caDacitv or floar space, whichever is Zreater,, of empiovee lunc^scorns., cafeterias and' loun¢es. (4) Provision for a procedure to resolve disputes arisinZ under the smoking nolicy; in which the heaith concerns of the empicuee desirin¢ a smoke free area shall be 2:iven nriority over any other emolovee's desire to smoke. ~(5) Any enclosed area occunied exciusivelv by emDiovees who each reguest', or do not obiect,, that the enclosed area be desi¢nated for smoking, sha11 be so desiRnated and smokin¢ shall not be restricted therein, even t'hou¢h such enclosed area mayy be visited bv other nersons whether or not emplovees of ' the employer. ~L Protection •if' employees or applicants for QmDiovment who exercise„ or attempt, to exercise, any right Zranted' under the written smokin¢ policy pursuant to this subd'1?ision, from advarse nersonnel, action taken in retaliation f'or such exercise or attemat to exercise„ ipcludjnZ dismissai, demotion, suspqnsian. disc',plihary actuun, neiZative nerfor.:.ance ev,uuat'.oe, any actian_ resultin¢ in loss of staff, camnensation or ')ther benefit, failure to' hire, fa.ilure_ to app4ipt, failure to oromote, or any transfer or assiLmment or failure to transfer or assizn aQainst the wishes of the affected empioyee', and a procedure too provide for the adequate redresS'of any such adverse persannel action taken in retaiistioni c. T?he smoking pgLic:,- shaall, be disseminated to a11 employees within three weeks of, its adootion and to new emeibyees whena hired. -10-