Tobacco Documents Online

UMM July 18, 1994 2OIjQTS ON _~Q,RB - IM2S A%R AC'l The requirement of "separate smoking rooms" and the pro- hibition of smoking in outdoor locations should be eliminated from the bill. The separate amoking room requirement is tanta- mount to a ban and is unwarranted, while the outdoor smoking prohibition carries antismoking militancy and intolerance to a absurd new extreme. However unpopular swking may be in some quarters, the fact is that one-fourth of the City's adults are smokers, and smoking is even more prevalent among the foreign tourists who are so important to the City's economy. As intro- duced, however, the smolce-P'ree Air 31ct wholly fails to take account of these central facts. The findings section of the bill, which places overwhelming reliance on EPA's report on environmental tobacco smoke, is entirely one-sided. It ignores completely the facts that (1) EPA's aoncLusions about FTS were based on reports of spousal smoking in residential settings, not public places or places of employment, (2) the Congressional Research Service has sharply questioned the statistical underpinnings of EPA's conclusions about ETS in residential settings, and (3) OSHA currently is considering whether regulation of ETS in places of employment may be warranted under applicable safety and health standards. Proprietors of public places should continue to be allowed to designate contiguous nmoking areas up to a maximum specified percentage of the available space. In light of changing mores, it may be legitimate to reduce the space that may be made avail- 20'd b00'oN 80:T b6,8t ~nr TIL2-998-008:QI to N ~ 0 w 0 v ~ a}nitlsul oooEqol aul

2 able for smoking in public places. But proprietors should con- tinue to be allowed to permit smoking, and to do so without a separate smoking room requirement, in, among other places -- • Bar areas in restaurants and other public places • Public transit depot waiting areas • Restaurants • KotelJmotel lobbies • Nightclubs (including cabarets) • Convention halls • Bowling alley concourses, billiard parlors and bingo halls Lskewise, ampioyars stfould continue to be allowed to choose from a rasfge of alternatives to accotmrnodate the existing right of nonsmoking employees to a stnoke-tree work area. Z'he bill seemingly ignores the tough conditions gurr_entiv imposed on gmployers in this regard by state law, Che Clean Yndoor Air Act and local Health Department regulations. These provisions are attached at Tab 1. Current law could be tightened but the guid- ing principle should remain one of employee consent: Ernployers should be allowed to per.-nit smoking in work areas (other than work areas to which employecs are not regularly assigned) it al2 employees ass.igned to the work area consent, includIng employees 1n nonsmoking portions of any common work area where smoking is permitted. Employers also should be permitted to allow smoking in employee cafeterias, dining rooms and lounges. Toba.cco businesses should continue to be exempt f=Gm smok- ing restrictions under the Scnoke-Frae Air Act, as they are under Btate law. co N ~ O W 0 ~I 00 b0'd b00'oN 80:T b6,8T ~nr ZILZ-998-008:QI a-~n;t1suI o33eqol ayl

, ] - 3 - The comments on the Smoke-Free Air Act that follow refer to the draf t distribuced under cover of a memorandum dated February 24, 1994. Page references are to that drafC. I. PIISZ,IC PLACVS (A 17 -53) ga t 7-1? ] The "separate smoking room" requirement, as applied to places ot public accommodation, is unworkable and prohibitive and would harm the hospitality industry in particular. 1. Public ,,tranggort,ation faca.lities (5 Z7-503 (a) (1) )(p. 81 E2.Im.fnate separate smoking room requatrement. Go from minimum 50 percent to 60 percent nonsmoking for waiting areas of public transit depots. State law allows smoking areas to be designated in waiting areas. N.Y. Pub. Health Law 55 3.399- o . 2 (nl) , -0. 3 . Z . publi_c MeaW A+esA-. .an"orta,tiean (S 17-503 (a) (2) ) [p. $T OK to extend prohibition to limousSnes, but limousines under private hire should be exempt. State law prohibits smoking in limousines when passengers are present, subject to that exemption. N.Y. Pub. ueaith La'-4 §§ 1399-0.1(g), 1399-q.&. 3. li~_rg~rtroo~ts (5 17-503(a) (3)) [p. 81 No change. 4. Ret.a 1 t rea_ (5 17-5Q3 (a) (4)) [p. 81 E1.iminxte prohibi t.ton . Continue to allow smoking areas to be designated 1n public areas of smaller stores, but redefine smaller stores as stores designed to accomnodate 100 or f®wer persons or employing 10 or fewer persons at the same location. The bill summary suggests that state law prohibits smoking in all retail stores, regardless of size (p. 3). In fact, state law allows the proprietor to designate smoking areas in retail stores. N.Y. Pub. Health Law $S 1399-o.2(g), -o.3. • (D IU 0 W 0 ~ _, V t (0 t 1 1 S0'd ttr00' oN 60: T b6.8I -I(1C 11LZ-998-008:QI aa.n1t 1suI ooaeqol ayl

- 4 -• 3. R.a auranta (S t7-5Q3 (a) (3) )[p. 81 Eliminate separaCe smoksng room requirement for largar res- taurants. Go from SO percent to 60 percent minimum nonsmoking area in those rAQtaurants- State law encourages, but does not require, 70 percent nonsmoking tor larger restaurants. N.Y. Pub. HeaZth Law § 1399-0.5 (a) - Contfrlue to permit smoking Sn bar areaa. Th0 bill summary suggests that smoking is not re- sCricted in restaurants that seat 50 or fewer parsons, (p. 3). It is true that the Clean Indoor Air Act' currently does not restri.ct smoking in such res- taurants (§ 17-505(i)), but superseding state law prohibits smoking in such restaurants unlea.$ allowed by the proprietor. N.Y. Pub. Hea.lth Laui § 1399-0.3_ 6tate law requires nonsmok9.ng areas to be designated in larger restaurants sufficiant to satisfy customer demand. ;A. § 1393-o.5 (a). 6. Businaaa eatablishments (inclutliag botale/motels) (3 17- S03 (a) (6) ) [p. 11l Esimjnate prohibition. smolting currently is prohibited in public areas of business eatablishrrments (with certain excep- tions) that employ more than 15 employees, burt is allowed in up to 50 percent of lobby areas in hotels/motels. Broaden the prohibition to include business eatablishznents with more than 10 employees and o from 5o pe.rcent to 40 percent maximum gmoking areas in hote],7motel lobbiea. The bill summary suggests' that state law prohibits smoking in the public areas of all buairiess estab- lishments, regardless ot size (p. 4). in fact, state law allows proprietors to designate smoking areas in public areas of business establishments. N.Y. Pub. Health Law § 1399-o.3_ risa. mu aums xt+~ d aal er .a (I 17-S03 (a) (7 f) [P • 121 7. Libra+ - No change. $. 2%eite?ra. g4n~'.eiE haJ a, (f 1.7-503 (at) ($) ) [P. 12] Q0 Make separate smoking room (without separate ventilation N) ~ requirement) an optional a arn t v to a contiguous smoking 0 ~ area in the lobby, and go trom 50/50 percent to 60/4o percent state law allows of total lobby area s oki / ki cw 0 1 . non ng smo ng m 00 r I O g0 d f700 oN 60 : I V6 ` j y Y ,81 I(lf IIZ1-998-008:QI alnitlsul oao2qoi ayl

- 5 - proprietors to designate smoking areas in public areas aE theaters. N.Y. Pub. Health Law §§ 1399-o.2(d), -0.3. .9. ConvaatioA halla (1 17-503 (a) (5)) [p. 2.2] Eliminate separate smok.ing room requirement. Reduce smoking areas from 25 percent to 20 percent for seating/floor spacg and from 50 percent eo 40 percent for lobbies, and retain exemption for private events. State lavr allows proprietors to permit smoking in convention halls. N.Y. Pub. Health Law § 3.399-q. 3 . 10. gnosCa ars=ge (/ 17-503 (a) (10)) (p. 131 &1iminate separate smoking soom requfrwrent. Reduce smoking areas from 50 percent to 40 percent for lobbies. State law allows proprietors to permit smoking in indoor arenas. N.Y. Pub. Health Law g§ 1354-o.2 (i) ,-o.3 . Continue to allow smok.ing 1n bowling a11ey concourse areas. 11. 3+3Y,ces of nublic meat~.raa~ass~nbly~. h.alt)l ,-aA3ft lacili_ i s. scho-0ls, hi d ra Q,g,tarvic§s and chil.dY ' i sti-tu io e (35 17-503 (a) (11) - (14) and naw $§ 17-503 (a) (15) - (15) ) [pp. 13-15] OK, except that separate ventilation requirement for separate smoking rooms in heatth care facilitiee should be eliminated, and separate room requirement for restaur8nts/c9,ining areas of health care facilities also should be eliminated. 5 17-503(a)(3.2). In addition, separate smoking room requirement for employee cafeterias and lounges in post-z2th grade educa- tional institutior.s ahould be eliminated. § 17-503(at)(14). On ,Tuly x5., the Legislature presented to the Governor legislation (A.7139-E) amending the Public Health Law to grohibit smoking in youth detention facilities, iacilities that provide child care services (other than private homes), child day care centers, group homes for children and similar institutions, and on school grounds (except by adult staff during nonschool houre) . 8arlier this year, Congress banned stAoking in indoor taciliCies where fedarally-funded children's services, as 8efined, are provided. Pro-Children Act (0 of 1994, Pub. L. No. 103-227, Ti.t].e X, Part C, §§ N -L 1041-1044, 108 Stat. 125, 271 (1994), O GJ O 00 ~0'd b00'oN Ot:t b6,8T -iRr tt~_~-998-008:QI ainitlsuI oooeqol ayl

6 12. E1tyator: (new Si 17-583 (17)) [p. 161 No change. 13. OutdQOF 1 catia s(53 17-503 (b) tuLd 17-l5Q3 (e))[p. 163 oppose any prohibition of smoking outdoors. , Is . pLACE$ ofr` EMPtoX7A= ta IT- 50-4S tl+A. 1y -2 Z1 The "separate smoking room" requirement should be elim- inated. • There is no justificatiozz for prohibiting smoking whi3.e working. ThLs is wholly arbitrary. • There is no justification for ].im.iting separate aTnok- ing rooms to one per floor. Again, this is arbitrary. • There is no justification for requiring separate ventilation. Even EPA does not say this is necessary. • There is no justification for prohibiting beverage 4= food vending machines in separafie smoking rooms. This is simply punitive, • There is no justification for prohibition ot smoking in common work areas occupied by smokers and non• objecting noaamokezs. As Mark Brown, the Director of Washington Stiate's Department of Labor and industries, has stated, in connection with a similar proposed separate saiolcing room requirement in his state, "the xeality is, this will be expensive [and) it simply won't be possible for many bus~nesses." ya„ncauver sun, March 17, 1994, p. A2a. The bill should be amended to maintain a range of options for accommodating nonsmoking employeee, continuing to stress the employer's paramount obligation to accommodate the legal right of employees to a"smoke free'' workplace. N.Y. Pub. Health Law CO N ~ ~ 0 oD N 80'd b00'oN 01:1 ~ b6,8T ifTr IT1,L- __.___._.-_~_.._.__ ^. _998-008:QI aTnTtIsuI O33EqOl a41

- 7 - .5 1399-o. 6, N.Y. C. Clean 7ndoor Air Act 9 17-504 (b) -(C) , and N.Y.C. Department of Health Regulations § 10-33 (d) -(f) currently impoae tough conditions on employers in this regard. (Copies of these provisions of state and local law are attached at Tab 1.) zt may be legitimate to tighce:z the conditions currently imposed by the Clean Indoor Air Act: •' Section 17-504(a) requires employers only to provide employees located in comrnon work areas with smoke-free areas "to the extent practicable." This qualifying language could be eliminated and the employer's duty made •absolute, as it is under state law. • Section 17-504(b) requir.ee that an employee's smoke- free work area be no,J.ess than eight feet from an area where smoking is permitted, "to the extent reasonably practicable in the employer's discretion." If this designation of a smoke-free work area is insufficient, the employer must make further accommodations. The eight-foot rule could be changed to a ten or twelve foot rule, and the qualifying language could be deleted so as to make the right absolute. Alterna- tively, this provision could be amended to make clear that smoking may be permitted in a comrnon work area only if no employee aesigrced to the work area objects. • Section 17-504 (b) (5) provides that in the event of disputes "the health concerns of the employee desiring a smoke-free area shall be given due con9lderatiosl." This provision could be modified, as the bill pro- poses, to ensure that such concerns sha•11 be "accorded priority." Ultimately, employers should continue to be ai3.owed to choose from among the following alternatives: (a) designating a contiguous portion of a common Work area as a smoking area if all employees assigned to the common work area consent, (b) limiting smoking in work areas to rooms occupied solely by acnoking employees, including private offices (no smoking in (0 N) ~ 0 cu 0 00 w .N ............ ..~_.~.-._,_.... 60'd tr00"oN II:I b6,8I i(1( IILL-998-008:QI a~n~t~sul o~~eqol'ayl

a common work areas) and (c) limiting smoking to separate smoking lounges (no smoking in work areas). Likewise, employers should continus to be allowed to permit smoking in conference rooms and m.eeting rooma it all present consent. Employers also shou3.d continue to be allowed to designate contigtzous portions of employee cafeterias and dining areas as smoking areas. The bill should not limit smoking in private enclosed offices to offices that constitute useparate smoking rooms" or prohibit smoking in private encl:;sed ofgices "whenever more trian one person is present" (proposed S 17-5fl4(b)). Smoking should be allowed if the visitor does not object. Finally, tobacco businesses should continue to be exempt front smoking restric- tions under the smoke-Free Air Act, as they are under state law. fig N.Y. Pub. Heaith Law § 1399-q.5. TII. pLACZNOT RE~~J2,ATED (9 17 - 5 05 ) tma 22 - 232 1. p,11rg tf 17-50i (a) ) tp. 221 Retain current definizson, which includes bar areas. State .' law also currently exempts bars, as similarly defined. N.Y. Pub. Health Law 9 i399-q. a t S 1399-ti. a. Z. p;,j,yate residencla (5 17-505 (b) )[p. 221 The language should be revised to make clear that the exemp- tion would still apply when an employee performing domestic or personal services cleaning or cooking, babysitting or nursing) is on the premi.ses. State law currently exempts pri- vate homes and residences. N.Y. Pub. Health Law 5 1399-q.1. 3. jgtdz /at4 el cluest .rooxna (S 17-505 (e) ) [p. 231 No change. State law also currently exempts hotel/motel guest rooms. N.Y. Eub. Health Law 5 1399-q.4. OI'd tr00'oN II:I b6,8i inr IIZZ-998-008:QI alnitlsul OOOEqOj ayl

I 9 4. gmatjgr r.t.iI , stgrQS (current I 17-505 (d) ) tp. 233 OK to delete. This exemption seems superfluous, since amoking in such stores is regulated under § 17-503 (a) (4) . S. getail tocg, stores (currsatly "Tobacco Businsa.a") (aew 5 17-505 (d) ~ current 5 17-505 (e) ) ip• 231 The current exemption tor tobacco businesses should be retained. State law also currently exempts tobacco businesses. N.Y. Pub. Health Law § 1399-cI.5. 6 . MLvaCg autensaZsi.l,gs (new 1 17-505 (e) 1 current I 17-505 (f ) ) (p. 231 No change. 7. P~riy~te gac},Qs.ed oflicea (curr.nt S 17-605 (g) ) [p, 23) Th1s exemptIon should be retained, although such an exemption should be unnecessary if the bill is revised to allow smoking to be pertnitted in work areas where all present consent. The bill should not limit smoking in private enclosed off iCeB to offices that constitute "separatc: stnoki.ng rooms" or prohibi.t smoking in private enclosed offices "whenever more than one person is present" (proposed § 3.7-504 (b) ) . S. $Xtan usMd_lRr , nri-va%. LiAactions (current 5 1.7-505 (b) I new 5 17-505(!)) tp. 231 OR. State law also currently exempts areas used for private functions. N.Y. Pub. Health Law § 1399-q.2. 9. 5=Ier r ataurmnta (current A 17-505 (i) ; ne.. 5 17-503(g) ) Ep . 231 OK. The bil}l summary suggests rhat smoking is not re- stricted in restaurants that seat 50 or fewer persons (p. 3). As noted, state law prohibits amoking in such restaurants ynlea8 allowed by the proprietor. N.Y. Pub. Health Law 5 1399-c.3. 10. Nighj:c~ubA (new 5 17-50S (h) )(p. 231 OK, but definicion needs to be broadened (see below). tt'd tr00'aN ZI:I b6,8t if1C IILZ-998-008:QI ajnjt}suI o33pqol ayl

zv. aEFix=zIM3's Ls :L7-~02) . 3-71 1. Kuditoxium (new ; i7-5a2 (b) ) (p. 51 OK. This definition tracks the definition Qf "audizorium" under atate law (N.Y. Pub. Kealth Law § 1399-n.1), except that the bill definition includes auditora.ums in private as wel3l as public buildings. This is not a material difference for purposes of the Clean Indoor Air Act. 2.. ftr, (xtew S 17-502 (c) j current !( 17•S02 (b) ) Lp. 31 leeta.in the current definition, which defines "bar" to include bar areaa and does not require bars to be separate businesn eatablishment:s. The current definition is comparable to the definition of "bar" under state law. N.Y. Pub. Kea.lth Law 5 1399-n.2. 3. Cb` i1c OK. ,car. Qsrsr +ea (new § 1?-302 (e) ) [P- 5] 4. S'hi en' ino it3tti!gjA (new 5 i7-502 (f) )[p. 61 OK. , Conmtan w=k s.a (current 5 17-502(i)) Ep. 5] Retain thja term, which § 4 of the bi13 would delete. 6 . Li.mc~~giu. egiu.e (eurrent § 17-502 (j) ) [p. 5) OK to delete this term. 7. xicbt club (n.w 3 17-sa2(m) ) [p. 61 Eliminate or broaden this -definition. The only establi®h- ments "where patrons must be at least 18 years or older to gain admission" are establishments where X-rated activities occur. Im N.Y. Penal Code § 264.20(z) . The definition ehould be broad- ened to include at least nightclubs eligible for an ori-premises license under § 48.], of the Rules of the State Liquor Authority U.s., "a night club featuring regularly scheduled cabaret entertainment") and cabarets for which a license is required O N ~ 0 cO O o, O ZT'd b00'aN Zt:T b6,8i iflf ITLL-998-008:QI ajnjz}suI oooEqol ayl