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a. It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of premises in which smoking, using electronic cigarettes, or using smokeless tobacco is prohibited or restricted pursuant to this chapter, or the designated agent thereof, to (i) provide a room designated for smoking, or using electronic cigarettes, including, but not limited to, a separate smoking room, room for using electronic cigarettes or an enclosed room, which fails to comply with the provisions of this chapter; provided, however, that the obligations of an owner or building manager of a building (where such owner or building manager of a building in which a public place is located is not the operator or employer of such public place) with respect to such a room shall be limited to work authorized by any permits necessary to perform construction obtained by the owner or his or her agent; (ii) fail to post the signs required by section 17-506; (iii) fail to remove ashtrays as required by subdivision d of section 17-506; or (iv) fail to make a good faith effort to comply with subdivisions c, d, d-1, and e of section 17-507. In actions brought for violations of this subdivision, the following shall be affirmative defenses: (i) that during the relevant time period actual control of the premises was not exercised by the respondent or a person under the control of the respondent, but rather by a lessee, sublessee or any other person; provided, however, that after receiving the notice of violation, the respondent submits to the department within five business days, by certified mail, a sworn affidavit and other such proof as may be necessary, indicating that he or she has not exercised actual control during the relevant time period; (ii) that a person smoking, using an electronic cigarette, or using smokeless tobacco in any area where such activity is prohibited pursuant to section 17-503 or section 17-503.1 was informed by a person who owns, manages, operates or otherwise controls the use of such premises, or the designated agent thereof, that such person smoking, using an electronic cigarette, or using smokeless tobacco is in violation of this local law and that such person who owns, manages, operates or otherwise controls the use of such premises has complied with all applicable provisions of this chapter during the relevant time period; provided, however, that after receiving notice of violation, the respondent submits to the department within five business days, by certified mail, a sworn affidavit and other such proof as may be necessary, indicating that respondent informed the person smoking, using an electronic cigarette, or using smokeless tobacco in any area where such activity is prohibited pursuant to section 17-503 or section 17-503.1 that such person was in violation of this local law and that respondent has complied with all applicable provisions of this chapter during the relevant time period; or (iii) that a person smoking, or using an electronic cigarette, in any restricted common indoor area where smoking, and using electronic cigarettes, are prohibited pursuant to section 17-503 was not informed by the owner or building manager of the premises (where such owner or building manager of a building in which a public place or a place of employment is located is not the operator or employer of such public place or place of employment) or by the operator of a multiple dwelling that such person smoking, or using an electronic cigarette, is in violation of this local law because such owner, building manager or operator did not have a designated agent on duty when such person was smoking, or using an electronic cigarette, and that such owner or building manager has, where applicable, complied with the mailing of a notice required pursuant to subdivision e of section 17-507; provided, however, that after receiving notice of violation, the respondent submits to the department within five business days, by certified mail, a sworn affidavit and other such proof as may be necessary, indicating that a person smoking, or using an electronic cigarette, in any restricted common indoor area where smoking, and using electronic cigarettes, are prohibited pursuant to section 17-503 was not informed by the respondent that such person smoking, or using an electronic cigarette, is in violation of this local law because the respondent did not have a designated agent on duty when such person was smoking, or using an electronic cigarette, and that the respondent has, where applicable, mailed the notice required pursuant to subdivision e of section 17-507.
b. It shall be unlawful for an employer whose place of employment is subject to regulation under section 17-504 to fail to comply with the provisions of that section, including, but not limited to, those provisions requiring the adoption, implementation, dissemination and maintenance of a written smoking and electronic cigarette use policy which conforms to the requirements of subdivision e of section 17-504, or to fail to make a good faith effort to comply with subdivision c of section 17-507. In actions brought for violations of this subdivision, it shall be an affirmative defense that the employer (i) has made good faith efforts to insure that employees comply with the provisions of such written smoking and electronic cigarette use policy and (ii) has complied with all applicable provisions of this chapter.
c. [Repealed.]
d-1. It shall be unlawful for any owner of a class A multiple dwelling to fail to:
1. adopt a smoking policy as required by subdivision a of section 17-506.1;
2. disclose such policy as required by subdivision b of such section;
3. provide notification of a material change to such policy as required by subdivision c of such section; or
4. make available copies of such policy as required by subdivision d of such section.
d-2. It shall be unlawful for any tenant-shareholder, condominium unit owner, or tenant who rents or leases a dwelling unit to another person to fail to disclose a smoking policy as required by paragraph 3 or 6 of subdivision b of section 17-506.1.
e. 1. Every person who violates subdivisions a or b of this section shall, for a first violation thereof, be liable for a civil penalty of not less than two hundred dollars nor more than four hundred dollars; for a second violation, both of which were committed within a period of twelve months, be liable for a civil penalty of not less than five hundred dollars nor more than one thousand dollars; and for a third or subsequent violation, all of which were committed within a period of twelve months, be liable for a civil penalty of not less than one thousand dollars nor more than two thousand dollars. Notwithstanding any provision of law in this paragraph to the contrary, where a person prohibits smoking and the use of electronic cigarettes in all indoor places of employment pursuant to subdivision a of section 17-504, and such person is in compliance with subdivision a of section 17-506 of this chapter, a violation of subdivision b of this section by such person for failure to comply with subdivision f of section 17-504 through failure to post a smoking and electronic cigarette use policy in the workplace shall, for a first violation thereof, make such person liable for a civil penalty of fifty dollars; for a second violation thereof, both of which were committed within a period of twelve months, liable for a civil penalty of one hundred dollars; and for a third or subsequent violation thereof, all of which were committed within a period of twelve months, liable for a civil penalty of one hundred fifty dollars.
2. Where a person prohibits smoking and the use of electronic cigarettes in all indoor places of employment pursuant to subdivision a of section 17-504, and such person is in compliance with subdivision a of section 17-506 of this chapter, such person shall not be subject to a civil penalty for a violation of subdivision b of this section for failure to comply with subdivision f of section 17-504 through failure to post a smoking and electronic cigarette use policy if such person proves to the satisfaction of the department, within thirty days of the issuance of the notice of violation and prior to the commencement of an adjudication of the violation, that the violation has been cured. The submission of proof of a cure, if accepted by the department as proof that the violation has been cured, shall be deemed an admission of liability for all purposes. The option of presenting proof that the violation has been cured shall be offered as part of any settlement offer made by the department to a person who has received, for the first time, a notice of violation of subdivision b of this section by failing to comply with subdivision f of section 17-504 through failure to post a smoking and electronic cigarette use policy or any rule or regulation issued thereunder. The department shall permit such proof to be submitted electronically or in person. A person may seek review, in the office of administrative trials and hearings, of the determination that the person has not submitted proof of a cure within fifteen days of receiving written notification of such determination.
3. Every person who violates subdivision d of this section shall be liable for a civil penalty of one hundred dollars for each violation, except that every person who violates subdivision d of this section by smoking, or using an electronic cigarette, in a pedestrian plaza as prohibited by paragraph seven of subdivision c of section 17-503 or in a park or other property under the jurisdiction of the department of parks and recreation as prohibited by paragraph three of subdivision d of section 17-503 shall be liable for a civil penalty of fifty dollars for each violation. Every owner of a class A multiple dwelling who violates subdivision d-1 of this section, and every tenant-shareholder, condominium unit owner and tenant who violates subdivision d-2 of this section, shall be liable for a civil penalty of one hundred dollars for each violation, provided that a violation of paragraph two, three or four of subdivision d-1 shall be considered a single violation regardless of whether such owner failed to disclose a smoking policy, to provide notification of adoption of such policy or a material change to such policy, or to make available copies of such policy to more than one person.
f. A proceeding to recover any civil penalty authorized pursuant to the provisions of subdivision e of this section shall be commenced by the service of a notice of violation which shall be returnable to the office of administrative trials and hearings, acting pursuant to section 558 and subdivision 2 of section 1048 of the charter, except that a proceeding to recover a civil penalty authorized pursuant to subdivision e for violation of subdivision d by smoking, or using an electronic cigarette, in a pedestrian plaza or in a park or other property under the jurisdiction of the department of parks and recreation, as prohibited by paragraph seven of subdivision c and by paragraph three of subdivision d of section 17-503 respectively, shall be commenced by the service of a notice of violation which shall be returnable to the environmental control board. The office of administrative trials and hearings, acting pursuant to section 558 and subdivision 2 of section 1048 of the charter, or acting pursuant to section 1049-a of the charter, shall have the power to impose the civil penalties prescribed by subdivision e of this section.
g. Whenever a notice of violation of subdivision a or b of this section is served by a person with power to enforce the provisions of this chapter pursuant to subdivision a of section 17-507, such notice shall, where applicable, include an order which requires the respondent to correct the condition constituting the violation and to file a certification with the department that the condition has been corrected. Such order shall require that the condition be corrected within ten days from the date that the order is issued and that certification of the correction of the condition be filed with the department in a manner and form within such further period of time to be determined in accordance with rules and regulations promulgated by the commissioner.
h. If the administrative tribunal established by the board of health or the environmental control board finds, upon good cause shown, that the respondent cannot correct the violation specified in subdivision g of this section, it may postpone the period for compliance with such order upon such terms and conditions and for such period of time as shall be appropriate under the circumstances.
i. In any proceeding before the office of administrative trials and hearings, acting pursuant to subdivision g of this section, if such office finds that the department or other agency issuing the notice of violation has failed to prove the violation charged, it shall notify the department or other agency issuing the notice of violation, and the order requiring the respondent to correct the condition constituting the violation shall be deemed to be revoked.
j. When the owner or operator of a bar has been found to be in violation of subparagraph c of paragraph twenty of subdivision a of section 17-503 on two or more occasions on the basis of one or more employees being in a separate smoking room at times not permitted under this chapter, the tribunal shall revoke the right of such owner or operator to maintain a separate smoking room in such bar.
k. The penalties provided by this section shall be in addition to any other penalty imposed by any other provision of law or regulation thereunder.
l. When a person who has been issued a permit to operate a non-tobacco hookah establishment has been found to have been in violation of subdivision a of section 17-508 or subdivision 1 of section 1399-s of the public health law, the commissioner shall revoke the permit issued to such person to operate such non-tobacco hookah establishment.
m. A non-tobacco hookah establishment found to be in violation of subdivision a of section 17-508 or subdivision 1 of section 1399-s of the public health law shall be responsible for any expert costs relating to proving such violation. The recovery of the costs authorized by this subdivision shall be in addition to any other penalties imposed by this section or by any other provision of law.
(Am. L.L. 2016/042, 4/6/2016, eff. 4/6/2016; Am. L.L. 2017/141, 8/28/2017, eff. 2/24/2018; Am. L.L. 2017/147, 8/28/2017, eff. 8/28/2018; Am. L.L. 2017/187, 10/16/2017, eff. 4/14/2018; Am. L.L. 2021/080, 7/18/2021, eff. 1/14/2022)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1988/002, L.L. 1995/005, L.L. 2002/047, L.L. 2013/152, L.L. 2017/187 and L.L. 2021/080.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1988/002, L.L. 1995/005 and L.L. 2002/047.
The department shall engage in a continuing program to explain and clarify the provisions and purposes of this chapter and shall provide assistance to those persons who seek to comply, and to those who want to stop smoking, using electronic cigarettes, or using smokeless tobacco.
(Am. L.L. 2016/042, 4/6/2016, eff. 4/6/2016)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1988/002 and L.L. 2013/152.
The department shall seek to encourage state and federal governmental and educational agencies having facilities within the city of New York, but not subject to the provisions of this chapter, to establish local operating procedures which substantially conform to the requirements of this chapter.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1988/002.
a. Nothing in this chapter shall be construed to permit smoking, using electronic cigarettes, or using smokeless tobacco where such activity is otherwise prohibited by law or regulation.
b. Nothing in this chapter shall be construed to prohibit owners, operators, managers, employers or other persons having control of any establishment subject to this chapter from adopting a smoke-free, electronic cigarette-free, or tobacco-free policy which completely prohibits smoking, using electronic cigarettes, or using smokeless tobacco on the premises of such establishment at all times.
c. Nothing in this chapter shall be construed to require owners, operators, managers, employers or other persons having control of any establishment subject to this chapter to choose to construct a separate smoking room, an enclosed room where smoking is permitted or a solid floor-to-ceiling partition separating a restaurant bar from the indoor dining area of a restaurant as the means of complying with this chapter.
d. Nothing in this chapter shall be construed to preclude owners, operators, managers, employers or other persons having control of any establishment covered by this act from prohibiting smoking, using electronic cigarettes, or using smokeless tobacco in such establishment to a greater extent than is provided by this chapter, in accordance with applicable law.
e. Nothing in this chapter shall be construed to allow owners, operators, managers, employers or other persons having control of any establishment covered by this act to be subject to any legal proceeding or action to enforce this chapter in any court by any party, other than the city of New York or its designated agencies, based on such owners', operators', managers', employers' or other persons alleged manner or method of compliance with the provisions of this chapter or his or her alleged failure to comply with the same.
(Am. L.L. 2016/042, 4/6/2016, eff. 4/6/2016)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1988/002, L.L. 1995/005 and L.L. 2013/152.
a. The commissioner shall promulgate rules in accordance with the provisions contained in this chapter, and such other rules as may be necessary for the purpose of implementing and carrying out the provisions of this chapter.
b. The department of parks and recreation and the department of transportation may promulgate rules as may be necessary for the purpose of implementing and carrying out the provisions of this chapter.
In determining the advisability of requiring that certain protections from second-hand smoke be provided in restaurant bars, the commissioners shall consider any applicable standards or recommendations of the American Society of Heating, Refrigerating and Air-Conditioning Engineers, any applicable standards or recommendations of the United States environmental protection agency and the occupational safety and health administration of the United States department of labor with respect to indoor air quality relating to second-hand smoke, the impact on public health of exposure to second-hand smoke and any other factors which such commissioners deem appropriate. Such commissioner shall report to the council by January 1, 1996 regarding the results of the study required pursuant to this subdivision and any recommendations.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1988/002 and L.L. 1995/005.
a. Any entity who in good faith believes itself to be a membership association shall have one hundred eighty days from the effective date of the local law that added this section to apply to the department of health and mental hygiene for registration as a membership association. During the period of time from the effective date of the local law which added this section until the expiration of one hundred eighty days, no provision of the local law that added this section, except for the provisions of this section, shall apply to such entity, but all provisions of local law 5 for the year 1995 shall continue to apply to such entity.
b. Any entity who in good faith believes itself to be an owner operated bar shall have one hundred eighty days from the effective date of the local law that added this section to apply to the department of health and mental hygiene for registration as an owner operated bar. During the period of time from the effective date of the local law which added this section until the expiration of one hundred eighty days, no provision of the local law that added this section, except for the provisions of this section, shall apply to such entity, but all provisions of local law 5 for the year 1995 shall continue to apply to such entity.
c. Any entity who in good faith believes itself to be a tobacco bar shall have one hundred eighty days from the effective date of the local law that added this section to apply to the department of health and mental hygiene for registration as a tobacco bar. During the period of time from the effective date of the local law which added this section until the expiration of one hundred eighty days, no provision of the local law that added this section, except for the provisions of this section, shall apply to such entity, but all provisions of local law 5 for the year 1995 shall continue to apply to such entity.
d. Any entity that in good faith believes itself to be a non-tobacco hookah establishment shall have 180 days from the effective date of the local law that added this subdivision to apply to the department for a permit as a non-tobacco hookah establishment. No permit application shall be approved by the department for any entity that fails to meet any requirement for a permit contained in subdivision g of section 17-513.5. During the period of time from the effective date of the local law that added this subdivision until the expiration of 180 days, no provision of the local law that added this subdivision, except for the provisions of this section, shall apply to such entity.
(Am. L.L. 2017/187, 10/16/2017, eff. 4/14/2018)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2002/047 and L.L. 2017/187.
a. The provisions of this chapter shall not be interpreted or construed to permit smoking, using electronic cigarettes, or using smokeless tobacco where such activity is prohibited or otherwise restricted by other applicable laws, rules or regulations.
b. Class A multiple dwelling smoking policy requirement. The civil penalty provided in paragraph 3 of subdivision e of section 17-508 shall be the sole remedy for violation of subdivision d-1 or d-2 of such section.
(Am. L.L. 2016/042, 4/6/2016, eff. 4/6/2016; Am. L.L. 2017/147, 8/28/2017, eff. 8/28/2018; Am. L.L. 2021/080, 7/18/2021, eff. 1/14/2022)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2002/047, L.L. 2013/152 and L.L. 2021/080.
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