§ 10-07 Tobacco Bars.

Smoking tobacco or using electronic cigarettes to vape nicotine shall be permitted in tobacco bars, as defined in § 17-502(jj) of the Act and 24 RCNY § 10-01, which were in existence in the calendar year ending December 31, 2001, and in which ten (10) or more percent of the bar's total gross annual income was derived from the on-site sale of tobacco products and rental of humidors, in accordance with the following terms and conditions:

   (a)   The applicant for registration shall show that the tobacco bar has been operated pursuant to a permit issued by the Commissioner in accordance with 24 RCNY Health Code Articles 5 and 81 by the current and any prior owner since the calendar year ending December 31, 2001.

   (b)   Applications to register shall be submitted on forms provided by the Department with such supporting documentation as the Department may require, including but not limited to, copies of tax returns filed with the state and federal governments for such periods of time as the Department may require; copies of tax returns, reports, or other proof submitted to demonstrate compliance with all applicable federal, State and local laws governing the taxation, sale and distribution of tobacco products; and a current retail license to sell tobacco products issued pursuant to § 20-202 of the Administrative Code by the Department of Consumer Affairs; other documentation demonstrating that ten (10) or more percent of the bar's total gross annual income was derived from the on-site sale of tobacco products and rental of humidors; architectural or engineering plans showing the size of the premises occupied by the bar on the date of application for registration; and copies of leases in effect at the time of the initial and annual registration. The Department shall afford such documents such confidentiality as may be provided by applicable law.

   (c)   Any change in permittee shall require notice to the Department, in writing, no later than ten (10) business days prior to any change in permittee.

   (d)   Any change in location or increase in the size of an existing tobacco bar shall be a violation of these rules and grounds for revocation of the registration of the bar. The permittee shall notify the Department, in writing, no later than ten (10) business days prior to any change in location or increase in the size of an existing tobacco bar.

   (e)   Registrations shall not be transferable.

   (f)   Registrations shall expire one (1) year from the date the Department issues its approval of such registration. Applications for annual re-registration shall be received by the Department no later than forty-five (45) days prior to their expiration date.

      (i)   The Department may charge a fee not to exceed $100.00 for each application.

      (ii)   Signs shall be posted in accordance with 24 RCNY § 10-12 and shall state: "SMOKING PERMITTED. THIS IS A TOBACCO BAR REGISTERED WITH THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE IN ACCORDANCE WITH THE NEW YORK CITY SMOKE-FREE AIR ACT."

   (g)   Smoking shall be prohibited in any entity alleging eligibility to register as a tobacco bar until an application for registration has been submitted and the Department has notified the applicant that the Department has approved such application. The Department shall review the application submitted and shall notify the applicant within forty-five (45) days as to whether such application has been approved or has been denied, provided all information requested has been submitted. If the Department determines, upon review of the documents submitted, and/or upon investigation, that such applicant does not qualify for registration in accordance with the definitions of the Act and these rules, it shall notify the applicant of this determination.

   (h)   A copy of the current registration shall, on request, be made available to any person authorized to enforce the Act.

   (i)   The Department's determination about the application for registration of any tobacco bar shall be a "final agency determination."

(Amended City Record 7/7/2022, eff. 8/6/2022)

§ 10-08 Membership Associations.

Smoking may be permitted in not-for-profit membership associations, as defined in § 17-502(ff) of the Act and 24 RCNY § 10-01, in accordance with the following terms and conditions:

   (a)   An entity which believes itself to be a not-for-profit membership association shall apply to the Department to register to allow smoking on its premises by its members and their guests.

   (b)   The application to register shall be submitted to the Department on such forms as the Department provides, and shall include such documentation as the Department may require to demonstrate the eligibility of the entity for such registration. Such submissions shall include, but not be limited to, copies of the entity's by-laws, copies of tax returns filed with the state and federal governments for such periods of time as the Department may require; copies of all insurance policies covering the premises occupied by the entity; copies of documents filed with the Secretary of State and the Attorney General, if applicable, to demonstrate its status as a not-for-profit entity and purpose. The Department shall afford such documents such confidentiality as may be provided by applicable law.

   (c)   Registrations shall expire two (2) years from the date the Department issues its approval of such registration. Applications for re-registration shall be received by the Department no later than forty-five (45) days prior to their expiration date.

      (i)   The Department may charge a fee not to exceed $100.00 for each application.

      (ii)   Signs shall be posted in accordance with 24 RCNY § 10-12 and shall state: "SMOKING PERMITTED. THIS IS A MEMBERSHIP ASSOCIATION WHICH IS REGISTERED WITH THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE IN ACCORDANCE WITH THE NEW YORK CITY SMOKE-FREE AIR ACT."

   (d)   The entity shall notify the Department, in writing, no later than ten (10) business days after any change in the employee information entered on the application for registration, or if any persons are engaged as "employees" to perform work or render any services on any premises controlled by the entity. It is a violation of these rules and grounds for revocation of the registration if the entity engages any employees to perform work or render any services on such premises.

   (e)   Smoking shall be prohibited in any entity alleging eligibility to register as a not-for-profit membership association until an application for registration has been submitted and the Department has notified the entity that the Department has approved such application. The Department shall review the application submitted and shall notify the entity within forty-five (45) days as to whether such application has been approved or has been denied, provided all information requested has been submitted. If the Department determines, upon review of the documents submitted, and/or upon investigation, that such entity does not qualify for registration in accordance with the definitions of the Act and these rules, it shall notify the entity of this determination.

   (f)   A copy of the current registration shall, on request, be made available to any person authorized to enforce the Act.

   (g)   The Department's decision about whether an entity qualifies for registration shall be a "final agency determination."

   (h)   Smoking in any indoor premises owned or operated by a membership association shall be limited to times when the association's premises are being used only by its members and guests. "Members' guests" shall not include members of the public invited to attend events open to the public, including, but not limited to, bingo games, theatrical productions, carnivals, rummage sales, or similar events.

   (i)   The Commissioner may rescind the registration of a membership association which has been found in violation of subdivision (h) of this section more than three (3) times in any two-year period.

§ 10-09 Separate Smoking Rooms in Bars. [Repealed]

§ 10-10 Outdoor Dining Areas. [Repealed]

(Amended City Record 7/7/2022, eff. 8/6/2022; repealed City Record 4/12/2024, eff. 5/12/2024)

§ 10-11 Ashtrays.

   (a)   Ashtrays offered for sale. Ashtrays shall not be used or provided for use in any smoke-free area. Ashtrays which are offered for sale in a smoke-free area other than a retail store shall be kept within a display case or in an area visible but not otherwise accessible to a customer (such as a shelf behind a cash register).

   (b)   Ashtrays in hotels and motels. Ashtrays are prohibited in all smoke-free areas of hotels and motels, except that ashtrays may be placed immediately adjacent to hotel and motel public entrances and elevators. The following signs shall be posted at every location in a hotel or motel where ashtrays are permitted: NO SMOKING SMOKING IS PROHIBITED IN ALL AREAS OF THIS HOTEL (MOTEL) EXCEPT IN GUEST ROOMS DESIGNATED AS SMOKING ROOMS PLEASE EXTINGUISH YOUR CIGARETTE, CIGAR OR PIPE

§ 10-12 Signs.

   (a)   "NO SMOKING" and "NO ELECTRONIC CIGARETTE USE" signs or "NO SMOKING OR ELECTRONIC CIGARETTE USE" signs indicating that smoking, and using electronic cigarettes, are prohibited shall be conspicuously posted so that they are clearly visible in lobbies and other appropriate locations of buildings and structures where smoking, and using electronic cigarettes, are prohibited by the Act and these rules.

   (b)   "SMOKING PERMITTED" or "ELECTRONIC CIGARETTE USE PERMITTED" signs or "SMOKING AND ELECTRONIC CIGARETTE USE PERMITTED" signs shall be posted outside the entrances to and within [separate smoking rooms and] enclosed rooms for smoking and electronic cigarette use. Such signs shall also be posted within tobacco and electronic cigarette promotion public events, as defined in the Act and these rules. "SMOKING PERMITTED" signs must also be posted within registered tobacco bars and registered membership associations, as defined in the Act and these rules.

   (c)   All signs required to be posted pursuant to the Act shall conform to the following specifications:

      (i)   Lettering and symbols shall be at least one-half (1/2) inch in height and shall be color contrasted so that all information is clear, conspicuous, and easily readable.

      (ii)   The size of lettering or symbols on "SMOKING PERMITTED" and "ELECTRONIC CIGARETTE USE PERMITTED" and "SMOKING AND ELECTRONIC CIGARETTE USE PERMITTED" signs shall not exceed the size of lettering or symbols on "NO SMOKING" and "NO ELECTRONIC CIGARETTE USE" and "NO SMOKING OR USING ELECTRONIC CIGARETTES" signs in the same establishment.

      (iii)   Signs shall be printed on durable material.

      (iv)   Wording and symbols listed below are Department-approved. However, except for the Warning set forth in subparagraph (c)(iv)(D) of this section, other similar wording may be used.

         (A)   No smoking signs:

            (1)   International symbol or

            (2)   "NO SMOKING"

         (B)   Smoking permitted sign, including the warning in subparagraph (D) of this paragraph:

            (1)   "SMOKING PERMITTED IN THIS ROOM" or

            (2)   "SMOKING PERMITTED"

         (C)   No smoking except in enclosed room for smoking sign, to be posted within establishments where smoking is permitted by the Act and these rules: "NO SMOKING EXCEPT IN ENCLOSED ROOM"

         (D)   All "SMOKING PERMITTED" and "SMOKING AND ELECTRONIC CIGARETTE USE PERMITTED" signs shall include the following warning: "WARNING: TOBACCO SMOKE CAUSES CANCER, HEART DISEASE, AND LUNG DISEASE, AND CAN HARM YOUR BABY."

         (E)   No electronic cigarette use signs: "NO ELECTRONIC CIGARETTE USE"

         (F)   Electronic cigarette use permitted sign:

            (1)   "ELECTRONIC CIGARETTE USE PERMITTED IN THIS ROOM" or

            (2)   "ELECTRONIC CIGARETTE USE PERMITTED" or

         (G)   No using electronic cigarettes except in enclosed room for electronic cigarette use sign, to be posted within establishments where electronic cigarette use is permitted by the Act and these rules: "NO ELECTRONIC CIGARETTE USE EXCEPT IN ENCLOSED ROOM"

         (H)   No smoking and electronic cigarette use signs: "NO SMOKING OR ELECTRONIC CIGARETTE USE"

         (I)   Smoking and electronic cigarette use permitted signs, including the warning in subparagraph (D) of this paragraph:

            (1)   "SMOKING AND ELECTRONIC CIGARETTE USE PERMITTED IN THIS ROOM" or

            (2)   "SMOKING AND ELECTRONIC CIGARETTE USE PERMITTED"

         (J)   No smoking and using electronic cigarettes except in enclosed room for smoking and electronic cigarette use sign, to be posted within establishments where smoking and electronic cigarette use is permitted by the Act and these rules: "NO SMOKING OR USING ELECTRONIC CIGARETTES EXCEPT IN ENCLOSED ROOM"

   (d)   Signs shall not be required to be posted in areas not regulated by the Act or these rules.