Tobacco.org

December 11, 2002

Dear Concerned New Yorker:

Recently, I wrote to inform you that on Friday, December 13, 2002, at 10:00 a.m., in the Council Chambers of City Hall, the City Council’s Committee on Health would be holding its third hearing on the Smoke Free Air Act of 2002.  Negotiations between the City Council and the Mayor have resulted in an amended bill, Int. No. 256-A; therefore, Friday’s hearing will be on Int. No. 256-A.  A copy of the bill is attached for your review.  When reading, please note that the underlined portions of the bill are sections that have been added, while the bracketed portions of the bill are sections that have been deleted.

As previously explained, if you are interested in testifying, please contact Ms. Chris Winward of my staff at (212) 788-0140. 

Again, I thank you for your continued interest in this matter.

Sincerely,

GIFFORD MILLER

Speaker

AGM/db

Attachment

Int. 256-A

By Council Members Quinn, Oddo, Brewer, Clarke, DeBlasio, Felder, Foster, Gerson, Koppell, Martinez, Perkins, Sears, Serrano, Stewart, Vann and Comrie (by request of the Mayor) and also Baez, Davis, Diaz, Lopez, Provenzano, Recchia Jr., Reyna, Vallone Jr., and Yassky

A LOCAL LAW

To amend the administrative code of the city of New York, in relation to the prohibition of smoking in public places and places of employment

Be it enacted by the Council as follows:

Section 1.  Subdivisions a, b, k, p, q, r, t, w, z, and aa of section 17-502 of the administrative code of the city of New York, subdivisions a and q as added and subdivision b as amended by local law number 5 for the year 1995, subdivision k as amended by local law number 30 for the year 1995, subdivisions r and z as amended and relettered by local law number 5 for the year 1995, subdivisions p, t and aa as relettered by local law number 5 for the year 1995, are amended to read as follows:

a.         “Auditorium” means the part of the building where an audience sits [but does not include]  including any corridors, hallways or lobbies adjacent thereto.

b.         “Bar” means [an enclosed room or] a business establishment or any portion of a non-profit entity, [open to the public] which is devoted to the selling and serving of alcoholic beverages for consumption by the public, guests, patrons, or members on the premises and in which the serving of food, if served at all, is only incidental to the sale or consumption of such beverages.  For the purposes of this chapter, the term “bar”: (i) shall [not] include a restaurant bar; (ii) shall include any area located in a hotel or motel [(other than a restaurant bar)], which is devoted to the selling and serving of alcoholic beverages for consumption by the public, guests, patrons, or members on the premises and in which the serving of food, if at all, is only incidental to the sale or consumption of alcoholic beverages; and (iii) shall include a cabaret as defined in section 20-359 of the code which is required to be licensed by the department of consumer affairs pursuant to section 20-360 of the code and in which the serving of food, if at all, is only incidental to the sale or consumption of alcoholic beverages.  For the purposes of this subdivision, (i) service of food shall be considered incidental to the sale or consumption of alcoholic beverages if the food service generates less than forty percent of total annual gross sales and (ii) any [enclosed room or] business establishment [open to the public] or any portion of a non-profit entity which is devoted to the selling and serving of alcoholic beverages for consumption by the public, guests, patrons, or members on the premises that generates forty percent or more of total annual gross sales from the sale of food for on-premises consumption shall be a restaurant.

k.         “Motion picture theater” means any public hall or room in which motion pictures are displayed, including any corridors, hallways or lobbies adjacent thereto. For purposes of this subdivision, “motion picture” means a display on a screen or other device, of pictures or objects in motion or rapidly changing scenery, whether or not such display shall be accompanied by a lecture, recitation or music.

p.         "Public place" means any area to which [the public is] individuals other than employees are invited or permitted, including, but not limited to, banks, educational facilities, health care facilities, child day care centers, children's institutions, shopping malls, property owned, occupied or operated by the city of New York or an agency thereof, public transportation facilities, reception areas, restaurants, catering halls, retail stores, theaters, sports arenas and recreational areas and waiting rooms. A private residence is not a "public place" within the meaning of this subdivision, except that areas in a private residence where a child day care center or health care facility is operated during the times of operation and areas in a private residence which constitute common areas of a multiple dwelling containing ten or more dwelling units, are "public places" within the meaning of this subdivision.

q.         "Residential health care facility" means (i) a facility providing therein nursing or other care to sick, invalid, infirm, disabled or convalescent persons in addition to lodging and board service [and], (ii) an inpatient psychiatric facility which provides individuals with active treatment under the direction of a physician, and (iii) a residential facility providing health related service.

r.          “Restaurant” means any coffee shop, cafeteria, luncheonette, sandwich stand, diner, short order café, fast food establishment, soda fountain, and any other [commercial] eating or beverage establishment (other than a bar), including a restaurant located in a hotel or motel, or part of any organization, club, boardinghouse or guest house, which gives or offers for sale food or beverages to the public, guests, members, or patrons, whether food or beverages are customarily consumed on or off the premises, but not an establishment whose sole purpose is to serve food or beverages to employees of a common employer or to students of a common educational institution.

t.          “Retail store” means any place which in the regular course of business sells or rents goods directly to the public.

w.  “Separate smoking room” means an enclosed room [in which smoking is permitted] the exclusive purpose of which is for smoking.  No business transactions, including, but not limited to, the sale, including by vending machines, and/or service of food, beverages, or any other product, and/or collection of any payments, shall be conducted in such room. 

Such room shall (i) be [clearly designated] completely enclosed on all sides by solid floor-to-ceiling walls; (ii) comply with all applicable fire and building code requirements, and have a sprinkler system for fire safety (which may be part of a sprinkler system of the premises in which the room is located); and (iii) have a separate ventilation system whereby the air from such enclosed room is immediately exhausted to an outdoor area (exclusive of any seating area) by an exhaust fan rather than being recirculated inside, and [is negatively pressurized to prevent back streaming of second-hand smoke into smoke-free areas] which is compliant with the additional specifications set forth in this subdivision; (iv) be clearly designated as a separate smoking room wherein no services are offered. Such room may contain furniture [and telephone equipment].  Such room shall not contain the sole means of ingress and egress to restrooms or any other smoke-free area, and shall not constitute the sole indoor waiting area of the premises.  Any doors in such room shall be self-closing, and shall remain closed except to the extent necessary to permit ingress and egress to such room.  Such room shall not exceed twenty-five percent of the aggregate square footage of the premises, including non-smoking lounges and shall not in any event exceed three hundred fifty square feet.  In calculating the square footage of the premises pursuant to this subdivision, all spaces, whether or not occupied by furniture or any counter, including public dining areas, beverage service areas, the separate smoking room, and lounges shall be included; provided however, that service areas (including areas behind any counter) and other areas to which the general public does not generally have access (such as storage rooms, kitchens, offices and cloakrooms), restrooms, telephone areas and waiting areas (other than waiting areas located in any lounges) shall not be included.  No employee shall be permitted to enter such room for the purposes of conducting any  business transaction, including but not limited to the sale or service of food, beverages, or any other product, provided, however, that an employee shall be allowed into such room to provide busing or other cleaning services when no smoking has occurred for fifteen minutes prior to the employee entering the room and no customers are present.  Such room shall have a ventilation system in which the ventilation rate is at least sixty cubic feet per minute per occupant based on a maximum occupancy of seven individuals per one hundred feet of floor space,  and the negative air pressure is at a rate such that when measured by a device approved by the department of health and mental hygiene, the pressure differential is at least three hundredths of an inch of water column relative to the air pressure in the adjacent room in which smoking is not permitted.  Such ventilation system shall discharge air from the separate smoking room at least twenty-five feet away from operable windows, doors, air conditioning, and any other heating, ventilation and air conditioning intakes.

z.         “Sports arena and recreational area” means any sports pavilion, stadium, race track, boxing arena, roller and ice skating rink, billiard parlor, bowling establishment and other similar place where members of the general public assemble either to engage in physical exercise, participate in athletic or recreational competition or activity or witness sports, cultural, recreational or similar activities. Playgrounds, [zoos,] gymnasiums, health clubs, [billiard parlors,] enclosed areas containing a swimming pool and areas where bingo is played are not “sports arenas and recreational areas” within the meaning of this subdivision.

aa.        “Tobacco business” means a sole proprietorship, corporation, partnership or other enterprise in which the primary activity is the sale[,] or manufacture[, or promotion] of tobacco, tobacco products and accessories [either] at wholesale [or retail], and in which the sale[,] or manufacture [or promotion] of other products is merely incidental, and in which smoking on the premises is essential to the entity for the testing or product development of such tobacco or  tobacco products.

§2.       Subdivisions j, o, and v of section 17-502 of the administrative code of the city of New York are REPEALED.

§3.       Section 17-502 of the administrative code of the city of New York is amended by adding new subdivisions cc, dd, ee, ff, gg, hh, ii, jj, kk, and ll to read as follows:

cc.  “Day treatment program” means a facility which is (i) licensed by the state department of health or the office of alcoholism and substance abuse services, the office of mental health, or the office of mental retardation and developmental disabilities within the state department of mental hygiene to provide treatment to aid in the  rehabilitation or recovery of its patients based on a structured environment requiring patient participation for no less than three hours each day; or  (ii) which is authorized by the state commissioner of health to conduct a program pursuant to section 80.135 of title ten of the New York code of rules and regulations.

dd.       “Health related service” means service in a facility which provides or offers lodging, board and physical care including, but not limited to, the recording of health information, dietary supervision and supervised hygienic services incident to such service.

ee.        “Member” means, for purposes of subdivision ff of this section, a person who (i) satisfies the requirements for membership in a membership association, and (ii) affirmatively accepts an invitation from such membership association to become a member.

ff.        “Membership association” means a not-for-profit entity which has been created or organized for a charitable, philanthropic, educational, political, social or other similar purpose and which is registered with the department of health and mental hygiene in accordance with the rules of the department.  In determining whether such an entity is a “membership association,” the department of health and mental hygiene shall consider, but need not be limited to, the following factors:

(i) whether it has by-laws or a similar governing instrument and whether such by-laws or similar governing instrument expressly provides for members;

(ii) whether it has established permanent and identifiable membership selection criteria, the purpose of which is to screen potential members on a basis related to its charitable, philanthropic, educational, political, social or other similar purpose;

(iii)  whether it conducts elections to select its governing structure and/or body;

(iv) whether the premises within which it is located are controlled by its membership;

(v) whether it is operated solely for the benefit and pleasure of its membership;

(vi) whether it expressly acknowledges the acceptance of members, such as by sending a membership card or by the inclusion of a member on a membership roster.

Such registration shall remain in effect for two years and shall be renewable based upon the factors described in this subdivision and the rules of the department.

gg.        “Owner operated bar” means a bar in which all duties with respect to preparing food and drink, cleaning, dishwashing and racking glasses, serving, maintaining inventory, stocking shelves and providing of security for such a bar are performed at all times only by individuals who are principal owners of such bar as defined in this section and which is registered with the department of health and mental hygiene in accordance with the rules of the department; provided, however, that individuals other than the principal owners may perform cleaning functions at times when the bar is not open to the public, guests, members or patrons. 

hh.       “Principal owner” shall mean an individual who holds a twenty-five percent or greater ownership interest in a bar and is a state liquor authority licensee for such bar, or an individual who holds a twenty-five percent or greater ownership interest in a partnership, joint venture, corporation or limited liability corporation, which is the sole owner of a bar and the state liquor authority licensee for such bar; provided, however, that an owner operated bar shall have no more than three principal owners. 

ii.         “Tobacco product” means any substance which contains tobacco, including, but not limited to, cigarettes, cigars, pipe tobacco and chewing tobacco.

jj.         “Tobacco bar” is a bar that, in the calendar year ending December 31, 2001, 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 department of health and mental hygiene in accordance with the rules of such agency. Such registration shall remain in effect for one year and shall be renewable only if: (i) in the preceding calendar year, the previously registered tobacco 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 (ii) the tobacco bar has not expanded its size or changed its location from its size or location as of  December 31, 2001.

kk.       “Negative air pressure” shall mean the air exhausted to the outdoors from a room is at a greater volume than the volume of air supplied into the room.

ll.         “Ventilation rate”  shall mean the rate at which air is supplied into a room.

§4.       The opening unnumbered paragraph of subdivision a of section 17-503, paragraphs 1, 4, 5, 6, 8, 10, 11, 14 and 15 of subdivision a of section 17-503 of the administrative code of the city of New York, paragraphs 1, 4, 5, 6, and 8 as amended and paragraphs 10, 11, 14 and 15 as amended and renumbered by local law number 5 for the year 1995, are amended to read as follows:

§17-503           Prohibition of smoking [in public places].

a. Smoking is prohibited in all enclosed areas within public places [during the times in which the public is invited or permitted,] except as otherwise restricted in accordance with the provisions below. Such public places include, but are not limited to, the following:

1.         Public transportation facilities, including, but not limited to, ticketing, boarding and waiting areas of public transit depots[; provided, however, that this section shall not prohibit smoking in separate smoking rooms designated as waiting areas, so long as the aggregate of all such rooms do not constitute more than twenty-five percent of the total waiting area in the public transit depot and such rooms do not contain the sole source of (i) vending machines, (ii) beverage or food service or (iii) place of payment for services].

4.         Retail stores (other than retail tobacco stores)[; provided, however, that any enclosed room in a retail store which is devoted to the sale of food or beverage for on-premises consumption shall be governed by the provisions of paragraph five of this subdivision].

5.         Restaurants [with an indoor seating capacity of more than thirty-five patrons (the determination of which excludes any seating at tables in a restaurant bar at which only beverage service is offered and seating at any counter in a restaurant bar serviced by a bartender); provided, however, that smoking may be permitted in (i) any enclosed room designated as a smoking lounge in which only beverage service is offered and (ii) any area of the restaurant which constitutes a restaurant bar as defined in subdivision s of section 17-502 when the following conditions are met:

(A) the perimeter of such restaurant bar is located at least six feet from the perimeter of any indoor dining area of such restaurant (not including the seating area located within the restaurant bar) or such restaurant bar is separated by a solid floor-to-ceiling partition from any indoor dining area (not including the seating area located within the restaurant bar); (B) the smoking lounge and restaurant bar do not individually or in the aggregate exceed twenty-five percent of the aggregate square footage of the areas of such restaurant offering public dining, beverage service and lounges (whether smoking or other lounges); (C) seating at tables in such restaurant bar at which food service is offered (excluding seating at any counter in a restaurant bar serviced by a bartender) shall be limited to: (i) no more than fifteen percent of up to and including one hundred