THE AMENDED VERSION  OF THE 1989 LAW BY THE SENATE AND ASSEMBLY (as shown)
IS INTENTIONALLY LEFT INTACT IN ORDER TO PRESERVE THE HISTORY OF
THE NYS SMOKE-FREE AIR ACT.

THIS WAY YOU WILL KNOW WHAT WAS PREVIOUSLY ALLOWED AND WHAT WAS
REMOVED OR ADDED TO CRAFT AND ENACT THE 2003 LAW.

(A clean version of the law can be found on the NYS DOH website)
 
 

CHAPTER TEXT:

LAWS OF NEW YORK, 2003

 
CHAPTER 13

 

AN ACT to amend the public health law and the education law, in relation to the regulation of smoking in certain public areas.

 
Became a law March 26, 2003, with the approval of the Governor.

Passed by a majority vote, three-fifths being present.
EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.
Section 1399-n. Definitions.
        1399-o. Smoking restrictions.
        1399-p. Posting of signs.
        1399-q. Smoking restrictions inapplicable.
        1399-r. General provisions.
        1399-s. Violations.
        1399-t. Enforcement.
        1399-u. Waiver.
        1399-v. Penalties.
        1399-w. Limitation of causes of action.
        1399-x. Rules and regulations.
The  People of the State of New York, represented in Senate and Assembly, do enact as follows:

 

Section 1. Section 1399-n of the public health law, as added by chapter 244 of the laws of 1989, subdivisions 9 and 16 as added and 

subdivisions 10, 11, 12, 13, 14 and 15 as renumbered by chapter 565 of the laws of 1994, is amended to read as follows:

§ 1399-n. Definitions. For purposes of this article:
1. ["Auditorium" means the part of a public building where an audience
sits  but  does  not include any corridors, hallways or lobbies adjacent

thereto.

2.] "Bar" means any [indoor] area  [open  to  the  public],  including

outdoor  seating  areas,  devoted  to  the sale and service of alcoholic

beverages for on-premises consumption and where the service of  food  is

only  incidental  to the consumption of such beverages. [Service of food

shall be considered incidental if the food service generates  less  than

forty  percent of total annual gross sales. Any bar that generates forty

percent or more of total annual gross sales from the sale  of  food  for

on-premises consumption shall be a food service establishment.

3.] 2. "Employer" [shall mean] means any person, partnership, [associ-

ateassociationlimited  liability company, corporation or nonprofit

entity which employs one or more  persons,  including  the  legislative,

executive  and  judicial  branches of state government and any political

subdivision of the state.

[4. "Factory" means any  mill  or  other  manufacturing  establishment

where  one  or  more  persons  are  employed in manufacturing, including

making, altering, repairing, finishing, bottling, canning,  cleaning  or

laundering any article or thing.

5.3.  "Food service establishment" means any [indoor] area [open to

the public], including outdoor seating  areas,  or  portion  thereof  in

which  the business is the sale of food for on-premises consumption [and

which has an indoor seating  capacity  of  greater  than  fifty  persons

including,  but  not  limited  to restaurants, cafeterias, coffee shops,

diners, sandwich shops or short order cafes. A food  service  establish-

ment shall not include the bar area of such establishment].

[6.  "Indoor area open to the public" means any indoor area or portion

thereof generally accessible to the public.

7.] 4. "Membership association" means a  not-for-profit  entity  which

has  been  created  or organized for a charitable, philanthropic, educa-

tional, political, social or other similar purpose.

5. "Place of employment" means any  indoor  area  or  portion  thereof

under  the  control  of  an  employer in which employees of the employer

perform services [but which is not generally accessible to the  public]

and shall include, but not be limited to, offices, school grounds,
retail stores, banquet facilities, theaters, food stores, banks, finan-
cial institutions, factories, warehouses, employee cafeterias, lounges,
auditoriums, gymnasiums, restrooms, elevators, hallways, museums,
libraries, bowling establishments, employee medical facilities, rooms or
areas containing photocopying equipment or other office equipment used in
common, and company vehicles.
[8. "Public building" means any building owned or operated by the
state or any county, city, town, village or any other political subdivi-
sion, public improvement or special district, public authority, commis-
sion, agency or public benefit corporation; or any other separate corpo-
rate instrumentality or unit of state or local government.
9.] 6. "School grounds" means any building, structure, and surrounding
outdoor grounds contained within a public or private pre-school, nursery
school, elementary or secondary school's legally defined property bound-
aries as registered in a county clerk's office, and any vehicles used to
transport children or school personnel.
[10. "Smoke-free work area" means an enclosed indoor area in a place
of employment where no smoking occurs. Such area shall be clearly desig-
nated, and separate from any smoking area.
11.] 7. "Retail tobacco business" means a sole proprietorship, limited
liability company, corporation, partnership or other enterprise in which
the primary activity is the retail sale of tobacco products and accesso-
ries, and in which the sale of other products is merely incidental.
8. "Smoking" means the burning of a lighted cigar, cigarette, pipe or
any other matter or substance which contains tobacco.
[12. "Smoking area" means an enclosed indoor area in which smoking is
permitted. Such smoking area shall be clearly designated and separate
from any area in which smoking is not permitted. In a place of employ-
ment, the smoking area shall be separated from a smoke-free work area by
walls or some other means, equally effective in reducing the effects of
smoke on the smoke-free work area, other than ventilation systems or aircleaning devices.
13. "Tobacco business" means a sole proprietorship, corporation, part-
nership or other enterprise in which the primary activity is the sale,
manufacture or promotion of tobacco, tobacco products and accessories
either at wholesale or retail, and in which the sale, manufacture or
promotion of other products is merely incidental.
14. "Warehouse" means any building or structure used for the purpose
of storing merchandise or commodities.
15. "Work area" means an area in a place of employment where one or
more employees are routinely assigned and perform services for their
employer.
16. "Zoo" means any indoor area open to the public for the purpose of
viewing animals.]
§ 2. Section 1399-o of the public health law, as added by chapter 244
of the laws of 1989, subdivisions 1 and 2 as amended and subdivision 8
as added by chapter 565 of the laws of 1994, is amended to read as follows:
§ 1399-o. Smoking restrictions. [1.] Smoking shall not be permitted
and no person shall smoke in the following indoor areas [open to the
public]:
[(a) auditoriums;
(b) elevators;
(c) gymnasiums;
(d)] 1. places of employment;
2. bars;
3. food service establishments, except as provided in subdivision six
of section thirteen hundred ninety-nine-q of this article;
4. enclosed indoor areas open to the public containing a swimming
pool;
[(e) indoor areas open to the public in food stores provided, however,
that any separate or distinct portion or part of such establishment
which is dedicated to the sale of food for on-premises consumption shall
be governed by the provisions of subdivision five of this section;
(f) classrooms;
(g)] 5. public means of mass transportation, including subways, under-
ground subway stations, and when occupied by passengers, buses, vans,
taxicabs and limousines;
[(h)] 6. ticketing [and], boarding and waiting areas in public trans-
portation terminals;
[(i)] 7. youth centers and facilities for detention as defined in
sections five hundred twenty-seven-a and five hundred three of the exec-
utive law;
[(j)] 8. any facility that provides child care services as defined in
section four hundred ten-p of the social services law, provided that
such services provided in a private home are excluded from this [paragraph]
subdivision when children enrolled in such day care are not present;
[(k)] 9. child day care centers as defined in section three hundred
ninety of the social services law and child day care centers licensed by
the city of New York;
[(l)] 10. group homes for children as defined in section three hundred
seventy-one of the social services law;
[(m)] 11. public institutions for children as defined in section three
hundred seventy-one of the social services law; [and
(n)] 12. residential treatment facilities for children and youth as defined in section 1.03 of the mental hygiene law[.
2. Except as provided in subdivisions three, four and five of this
section, smoking shall not be permitted and no person shall smoke in any
indoor area open to the public, including but not limited to any indoor
area open to the public in:
(a)];
13. all public and private colleges, universities and other [educa-
tion] educational and vocational institutions;
[(b)] 14. general hospitals and residential health care facilities as
defined in article twenty-eight of this chapter, and other health care
facilities licensed by the state in which persons reside[, provided,
however, that cafeterias and lunchrooms in such facilities shall
be governed by the provisions of paragraph (c) of subdivision six of this
section;
(c) public buildings, provided, however, that an employee whose work area
is in an indoor area open to the public shall be governed by the
provisions of subdivision six of this section;
(d) theaters;
(e) museums;
(f) libraries;
(g) retail stores in which goods, wares or merchandise are offered for sale;
(h)]; provided, however, that the provisions of this subdivision shall
not prohibit smoking by patients in separate enclosed rooms of residen-
tial health care facilities, adult care facilities established or certi-
fied under title two of article seven of the social services law, commu-
nity mental health residences established under section 41.44 of the
mental hygiene law, or facilities where day treatment programs are
provided, which are designated as smoking rooms for patients of such
facilities or programs;
15. commercial establishments used for the purpose of carrying on or
exercising any trade, profession, vocation or charitable activity;
[(i)] 16. indoor arenas;
[(j) waiting rooms and waiting areas;
(k) banks and other financial institutions;
(l) restrooms;
(m) waiting areas in public transportation terminals; and
(n) service areas in cafeterias and businesses selling food for
on-premises and off-premises consumption; and
(o)] 17. zoos[.
3. The owner, operator or manager of an indoor area open to the public
subject to subdivision two of this section may designate a smoking area
or areas. Such smoking area shall not include any of the indoor areas
open to the public set forth in subdivision one of this section.
4. (a) The owner, operator or manager of a bowling establishment may
permit smoking in the concourse area, which is the area directly behind
and immediately contiguous to the bowler settee area, but shall provide
a nonsmoking area constituting at least twenty-five percent of the
square footage of the concourse area.
(b) The organizer or sponsor of]; and
18. bingo [shall provide a contiguous nonsmoking area sufficient to
meet patron demand. If at least fifty percent of seating capacity is
designated for nonsmokers, demand shall be deemed to have been met. The
organizer or sponsor may not determine that no such demand exists.
Notice shall be prominently posted at each entrance stating that a
nonsmoking section is available.
5. The owner, operator or manager of a food service establishment:
(a) shall designate a contiguous nonsmoking area sufficient to meet
customer demand and may not determine that no such demand exists. If
seventy percent of a food service establishment's indoor seating capaci-
ty for dining is designated as a nonsmoking area, then customer demand
will be deemed to have been met. The designation of less than seventy
percent of the indoor seating capacity for dining of a food service
establishment as a nonsmoking area shall not create the presumption of
noncompliance with the provisions of this subdivision;
(b) shall prominently post notice at each entrance advising that a
nonsmoking section is available, and each patron shall be given an
opportunity to state his preference; and
(c) may designate a separate enclosed room or rooms solely for use by
smokers.
6. Each employer shall adopt and implement a written smoking policy.
The policy shall apply only to a place of employment as defined in
subdivision six of section thirteen hundred ninety-nine-n of this arti-
cle and shall require at least the following:
(a) that employers shall provide nonsmoking employees with a smoke-
free work area;
(b) that employers may set aside a work area for smoking if all
employees assigned to the work area agree to the designation;
(c) that employers shall provide for contiguous nonsmoking areas in
employee cafeterias, lunch rooms and lounges. The contiguous nonsmoking
areas in employee cafeterias and lunchrooms shall be sufficient to meet
employee demand. An employer may not determine that no such demand
exists. If seventy percent of the indoor seating capacity is designated
as a non-smoking area, employee demand shall be deemed to have been met.
The designation of less than seventy percent of the indoor seating
capacity for dining of a food service establishment as a nonsmoking area
shall not create the presumption of noncompliance with the provisions of this subdivision;
(d) that smoking shall be prohibited in auditoriums, gymnasiums, rest
rooms, elevators, classrooms, hallways, employee medical facilities and
rooms or areas which contain photocopying equipment or other office
equipment used in common, and in company vehicles occupied by more than
one person unless the occupants of such vehicle agree that smoking may
be permitted;
(e) that smoking shall be prohibited in conference rooms and meeting
rooms, unless everyone in that room agrees that smoking may be permit-
ted;
(f) that an employer may designate a separate enclosed room or rooms
not open to the public for use as a smoking area;
(g) that employers shall prominently post the smoking policy in the
workplace, and supply a written copy upon request to any existing or
prospective employee;
(h) an employer shall not be required to make any expenditures or
structural changes to create a smoke-free work area. In the event an
employer cannot, after using its best efforts, comply with an employee's
request for a smoke-free work area, the employer shall designate that
employee's work area as a smoke-free work area; and
(i) any provisions in a smoking policy that are more restrictive than the
minimum requirements set forth in this subdivision shall, if a
collective bargaining unit exists, be subject to applicable law govern-
ing collective bargaining.
7. (a) For the purposes of this article, the employer of any place of
employment within the New York state senate, and the owner, operator or
manager of an indoor area open to the public in that portion of a public
building occupied by the New York state senate or any member or employee
thereof, shall be the temporary president of the senate or any person or
persons designated by the temporary president.
(b) For the purposes of this article, the employer of any place of
employment within the New York state assembly, and the owner, operator,
or manager of an indoor area open to the public in that portion of a
public building occupied by the New York state assembly or any member or
employee thereof, shall be the speaker of the assembly or any person or
persons designated by the speaker.
(c) For the purposes of this article, the employer of any place of
employment within the executive chamber of the state capitol, and the
owner, operator, or manager of an indoor area open to the public in that
portion of a public building occupied by the governor or any employee of
the governor's office, shall be the governor.
(d) For the purposes of this article, the employer of any place of
employment within any state agency as defined in paragraph (g) of subdi-
vision one of section seventy-three of the public officers law, and the
owner, operator, or manager of an indoor area open to the public in that
portion of a public building occupied by any such agency, shall be the
commissioner, director, or other chief executive officer of such agency.
(e) For the purposes of this article, the employer of any place of
employment within the judiciary, and the owner, operator or manager of
an indoor area open to the public in that portion of a public building
occupied by the judiciary, or any employee thereof, shall be the chief
administrative judge of the office of court administration, or any
person or persons designated by the chief administrative judge.
(f) Notwithstanding section two of the public buildings law or any
other provision of law, the commissioner of general services shall not
have or exercise any supervision or control over places of employment or
with respect to any indoor area open to the public in that portion of a
public building, which are subject to the provisions of paragraph (a),
(b), (c), (d) or (e) of this subdivision.
8. Notwithstanding the provisions of any other law, rule or regu-
lation, tobacco use shall not be permitted and no person shall use
tobacco on school grounds; provided, however, that smoking by adult
faculty and staff members may be permitted in a designated smoking area
during non-school hours. For purposes of this section, school hours
shall include any student activity that is supervised by faculty or
staff, or any officially sanctioned school event] facilities.
§ 3. Subdivision 1 of section 1399-p of the public health law, as
added by chapter 244 of the laws of 1989, is amended to read as follows:
1. "Smoking" or "No Smoking" signs, or the international "No Smoking"
symbol, which consists of a pictorial representation of a burning ciga-
rette enclosed in a circle with a bar across it, shall be prominently
posted and properly maintained where smoking is regulated by this arti-
cle, by the owner, operator, manager or other person having control of
such [indoor] area.
§ 4. Section 1399-q of the public health law, as added by chapter 244
of the laws of 1989, is amended to read as follows:
§ 1399-q. Smoking restrictions inapplicable. This article shall not apply to:
1. Private homes, private residences and private automobiles;
2. [Any indoor area where private social functions are being held when
seating arrangements are under the control of the sponsor of the func-
tion and not the owner, operator, manager or person in charge of such
indoor area;
3. Any indoor area open to the public exclusively reserved for
conventions and trade shows if the sponsor or organizer gives notice in
any promotional material or advertisements that smoking will not be
restricted, and prominently posts notice at the entrance to the conven-
tion or trade show advising the public that smoking will not be
restricted;
 4.] A hotel or motel room rented to one or more guests;
[5. Tobacco] 3. Retail tobacco businesses;
[6. Limousines under private hire by an individual or corporation;
7. Wholly or partially enclosed private boxes in indoor arenas; and
8. Bars.]
4. Membership associations; provided, however, that smoking shall only
be allowed in membership associations in which all of the duties with
respect to the operation of such association, including, but not limited
to, the preparation of food and beverages, the service of food and
beverages, reception and secretarial work, and the security services of
the membership association are performed by members of such membership
association who do not receive compensation of any kind from the member-
ship association or any other entity for the performance of such duties;
5. Cigar bars that, in the calendar year ending December thirty-first,
two thousand two, 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 appropriate enforcement officer, as defined in
subdivision one of section thirteen hundred ninety-nine-t of this arti-
cle. Such registration shall remain in effect for one year and shall be
renewable only if: (a) in the preceding calendar year, the cigar 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
(b) the cigar bar has not expanded its size or changed its location from
its size or location since December thirty-first, two thousand two;
6. Outdoor dining areas of food service establishments with no roof or
other ceiling enclosure; provided, however, that smoking may be permit-
ted in a contiguous area designated for smoking so long as such area:
(a) constitutes no more than twenty-five percent of the outdoor seating
capacity of such food service establishment, (b) is at least three feet
away from the outdoor area of such food service establishment not desig-
nated for smoking, and (c) is clearly designated with written signage as
a smoking area; and
7. Enclosed rooms in food service establishments, bars, catering
halls, convention halls, hotel and motel conference rooms, and other
such similar facilities during the time such enclosed areas or rooms are
being used exclusively for functions where the public is invited for the
primary purpose of promoting and sampling tobacco products, and the
service of food and drink is incidental to such purpose, provided that
the sponsor or organizer gives notice in any promotional material or
advertisements that smoking will not be restricted, and prominently
posts notice at the entrance of the facility and has provided notice of
such function to the appropriate enforcement officer, as defined in
subdivision one of section thirteen hundred ninety-nine-t of this arti-
cle, at least two weeks prior to such function. The enforcement officer
shall keep a record of all tobacco sampling events, and such record
shall be made available for public inspection. No such facility shall
permit smoking under this subdivision for more than two days in any
calendar year.
§ 5. Section 1399-s of the public health law, as added by chapter 244
of the laws of 1989, is amended to read as follows:
§ 1399-s. Violations. 1. It shall be unlawful for any person, firm,
limited liability company, corporation or other entity that owns,
manages, operates or otherwise controls the use of an [indoor] area
[open to the public] in which smoking is prohibited or restricted pursu-
ant to section thirteen hundred ninety-nine-o of this article to fail to
comply with the provisions of this article. For violations of this
subdivision, it shall be an affirmative defense that during the relevant
time period actual control of the [indoor] area [open to the public] was
not exercised by the respondent, but rather by a lessee, the sublessee
or any other person. To establish an affirmative defense, the respond-
ent shall submit an affidavit and may submit any other relevant proof
indicating that the respondent did not exercise actual control of said
area during the relevant time period. Such affidavit and other proof
shall be mailed by certified mail to the appropriate enforcement officer
within thirty days of receipt of such notice of violation.
2. [It shall be unlawful for any person, firm, corporation or other
entity that owns, manages or operates a food service establishment in
which smoking is restricted to fail to designate areas pursuant to
subdivision five of section thirteen hundred ninety-nine-o of this arti-
cle, or to fail to make good faith efforts to ensure that employee
sresponsible for seating arrangements substantially comply with the
requirements of this article. In actions brought for violations of
subdivision five of section thirteen hundred ninety-nine-o of this arti-
cle, it shall be an affirmative defense that notice of a violation was
provided to a customer.
3.] It shall be unlawful for an employer whose place of employment is
subject to subdivision [six] one of section thirteen hundred ninety-
nine-o of this article to fail to comply with the provisions of such
subdivision. For violations of such subdivision [six of section thirteen
hundred ninety-nine-o of this article], it shall be an affirmative
defense that the employer has made good faith efforts to ensure that
employees comply with the provisions of [any policy adopted pursuant to
subdivision six of section thirteen hundred ninety-nine-o of] this arti-
cle.
[4.] 3. It shall be unlawful for any person to smoke in any area where
smoking is prohibited or restricted under section thirteen hundred nine-
ty-nine-o of this article.
§ 6. Subdivisions 1, 2 and 4 of section 1399-t of the public health
law, as added by chapter 244 of the laws of 1989, are amended to read as
follows:
1. For the purpose of this article the term "enforcement officer"
shall mean the board of health of a county or part county health
district established pursuant to title three of article three of this
chapter, or in the absence thereof, an officer of a county designated
for such purpose by resolution of the elected county legislature or
board of supervisors adopted within sixty days after the effective date
of this [act] article. Any such designation shall be filed with the
commissioner within thirty days after adoption. If no such designation
is made, the county will be deemed to have designated the department as
its enforcement officer. Any county that does not designate an enforce-
ment officer during the time period specified above may do so at any
time, thereafter, such designation will be effective thirty days after
it is filed with the commissioner. The enforcement officer shall have
sole jurisdiction to enforce the provisions of this article on a coun-
ty-wide basis pursuant to rules and regulations promulgated by the
commissioner. In a city with a population of more than one million the
enforcement officer shall be the [board of health] department of health
and mental hygiene of such city which shall have sole jurisdiction to
enforce the provisions of this article in such city.
2. If the enforcement officer determines after a hearing that a
violation of this article has occurred, a civil penalty may be imposed
by the enforcement officer pursuant to section thirteen hundred ninety-
nine-v of this article. When the enforcement officer is the commission-
er, the hearing shall be conducted pursuant to the provisions of section
twelve-a of this chapter. When the enforcement officer is a board of
health or in a city with a population of more than one million, the
department of health and mental hygiene, or an officer designated to
enforce the provisions of this article, the hearing shall be conducted
pursuant to procedures set forth in the county sanitary code, or health
code of such city, or in the absence thereof, pursuant to procedures
established by the elected county legislature or board of supervisors.
No other penalty, fine or sanction may be imposed, provided that nothing
herein shall be construed to prohibit an enforcement officer from
commencing a proceeding for injunctive relief to compel compliance with
this article.
4. The owner, manager, operator or other person having control of [an
indoor] any area [open to the public, food service establishment or
place of employment under] subject to the provisions of this article,
shall inform, or shall designate an agent who shall be responsible for
informing individuals smoking in an area in which smoking is not permit-
ted that they are in violation of this article.
§ 7. Section 1399-u of the public health law, as added by chapter 244
of the laws of 1989, is amended to read as follows:
§ 1399-u. Waiver. 1. The enforcement officer may grant a waiver from
the application of a specific provision of this article, provided that
prior to the granting of any such waiver the applicant for a waiver
shall establish that:
(a) compliance with a specific provision of this article would cause
undue financial hardship; or
(b) other factors[, including but not limited to the physical layout,]
exist which would render [strict] compliance unreasonable.
2. [Notwithstanding subdivision one of this section, the enforcement
officer shall grant a waiver from the application of subdivision six of
section thirteen hundred ninety-nine-o of this article to any applicant
who as the owner, operator or manager of a factory or warehouse demon-
strates that the effects of smoking on employees in work areas have been
reduced to a minimal degree by factors, including but not limited to,
the physical layout or size of such factory or warehouse.
3. Subdivision two of this section shall not apply to work areas in
separate enclosed offices, employee cafeterias, lunchrooms or lounges in
a factory or warehouse.
4.] Every waiver granted shall be subject to such conditions or
restrictions as may be necessary to minimize the adverse effects of the
waiver upon persons subject to an involuntary exposure to second-hand
smoke and to ensure that the waiver is consistent with the general
purpose of this article.
§ 8. Subdivisions 1 and 2 of section 1399-aa of the public health law,
as added by chapter 799 of the laws of 1992, are amended to read as
follows:
1. "Enforcement officer" means the enforcement officer designated
pursuant to article thirteen-E of this chapter to enforce such article
and hold hearings pursuant thereto; provided that in a city with a popu-
lation of more than one million it shall also mean an officer or employ-
ee or any agency of such city that is authorized to enforce any local
law of such city related to the regulation of the sale of tobacco
products to minors.
2. "Food service establishment" means any [indoor area open to the
public or portion thereof in which the business is the sale of food for
on-premises consumption and which has an indoor seating capacity of
greater than fifty persons including, but not limited to restaurants,
cafeterias, coffee shops, diners, sandwich shops or short order cafes]
area, including outdoor seating areas, in which the business is the sale
of food for on-premises consumption.
§ 9. Subdivision 6 of section 1399-aa of the public health law, as
added by chapter 518 of the laws of 2000, is renumbered subdivision 7
and two new subdivisions 8 and 9 are added to read as follows:
8. "Tobacco business" means a sole proprietorship, corporation, limit-
ed liability company, partnership or other enterprise in which the
primary activity is the sale, manufacture or promotion of tobacco,
tobacco products and accessories, either at wholesale or retail, and in
which the sale, manufacture or promotion of other products is merely
incidental.
9. "Factory" means any mill or other manufacturing establishment where
one or more persons are employed in manufacturing including making,
altering, repairing, finishing, bottling, canning, cleaning or launder-
ing any article or thing.
§ 10. Subdivision 2 of section 1399-bb of the public health law, as
amended by chapter 508 of the laws of 2000, is amended to read as
follows:
2. The prohibitions contained in subdivision one of this section shall not apply to the following locations:
(a) private social functions [as defined in section thirteen hundred
ninety-nine-q of this chapter] when seating arrangements are under the
control of the sponsor of the function and not the owner, operator,
manager or person in charge of such indoor area;
(b) conventions and trade shows [that comply with the provisions of
subdivision three of section thirteen hundred ninety-nine-q of this
chapter]; provided that the distribution is confined to designated areas
generally accessible only to persons over the age of eighteen;
(c) events sponsored by tobacco or herbal cigarette manufacturers
provided that the distribution is confined to designated areas generally
accessible only to persons over the age of eighteen;
(d) bars as defined in subdivision [two] one of section thirteen
hundred ninety-nine-n of this chapter;
(e) tobacco businesses as defined in subdivision [twelve] eight of
section [thirteen hundred ninety-nine-n] thirteen hundred ninety-nine-aa
of this [chapter] article;
(f) factories as defined in subdivision [four] nine of section [thir-
teen hundred ninety-nine-n] thirteen hundred ninety-nine-aa of this
[chapter] article and construction sites; provided that the distribution
is confined to designated areas generally accessible only to persons
over the age of eighteen.
§ 11. Subdivision 7 of section 1399-cc of the public health law, as
added by section 1 of chapter 568 of the laws of 2001, is amended to
read as follows:
7. No person operating a place of business wherein tobacco products or
herbal cigarettes are sold or offered for sale shall sell, permit to be
sold, offer for sale or display for sale any tobacco product or herbal
cigarettes in any manner, unless such products and cigarettes are stored
for sale (a) behind a counter in an area accessible only to the person-
nel of such business, or (b) in a locked container; provided, however,
such restriction shall not apply to tobacco businesses, as defined in
subdivision [thirteen] eight of section [thirteen hundred ninety-nine-n]
thirteen hundred ninety-nine-aa of this [chapter] article, and to places
to which admission is restricted to persons eighteen years of age or
older.
§ 12. Subdivision 2 of section 1399-cc of the public health law, as
added by section 2 of chapter 568 of the laws of 2001, is amended to
read as follows:
2. No person operating a place of business wherein tobacco products or
herbal cigarettes are sold or offered for sale shall sell, permit to be
sold, offer for sale or display for sale any tobacco product or herbal
cigarettes in any manner, unless such products and cigarettes are stored
for sale (a) behind a counter in an area accessible only to the person-
nel of such business, or (b) in a locked container; provided, however,
such restriction shall not apply to tobacco businesses, as defined in
subdivision [thirteen] eight of section [thirteen hundred ninety-nine-n]
thirteen hundred ninety-nine-aa of this [chapter] article, and to places
to which admission is restricted to persons eighteen years of age or
older.
§ 13. Section 1399-dd of the public health law, as amended by chapter
508 of the laws of 2000, is amended to read as follows:
§ 1399-dd. Sale of tobacco products or herbal cigarettes in vending
machines. No person, firm, partnership, company or corporation shall
operate a vending machine which dispenses tobacco products or herbal
cigarettes unless such machine is located: (a) in a bar as defined in
subdivision [two] one of section thirteen hundred ninety-nine-n of this
chapter, or the bar area of a food service establishment with a valid,
on-premises full liquor license; (b) in a private club; (c) in a tobacco
business as defined in subdivision [thirteen] eight of section [thirteen
hundred ninety-nine-n] thirteen hundred ninety-nine-aa of this [chapter]
article; or (d) in a place of employment which has an insignificant
portion of its regular workforce comprised of people under the age of
eighteen years and only in such locations that are not accessible to the
general public; provided, however, that in such locations the vending
machine is located in plain view and under the direct supervision and
control of the person in charge of the location or his or her designated
agent or employee.
§ 14. Paragraph (a) of subdivision 2 of section 1399-ll of the public
health law, as added by chapter 518 of the laws of 2000, is amended to
read as follows:
(a) The provisions of subdivision one of this section shall not apply
to a tobacco business, as defined in subdivision eight of section thir-
teen hundred ninety-nine-aa of this [chapter] article.
§ 15. Subdivision 2 of section 409 of the education law, as added by
chapter 565 of the laws of 1994, is amended to read as follows:
2. Notwithstanding the provisions of any other law, rule or regu-
lation, tobacco use shall not be permitted and no person shall use
tobacco on school grounds[; provided, however, that smoking by adult
faculty and staff members may be permitted in a designated smoking area
during non-school hours. For purposes of this section, school hours
shall include any student activity that is supervised by faculty or
staff, or any officially sanctioned school event]. "School grounds"
means any building, structure and surrounding outdoor grounds contained
within a public or private pre-school, nursery school, elementary or
secondary school's legally defined property boundaries as registered in
a county clerk's office.
§ 16. This act shall take effect on the one hundred twentieth day
after it shall have become a law, provided that the amendments to subdi-
vision 7 of section 1399-cc of the public health law, made by section
eleven of this act, shall be subject to the expiration and reversion of
such section pursuant to section 4 of chapter 519 of the laws of 1999,
as amended, when upon such date the provisions of section twelve of this
act shall take effect.
The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.
JOSEPH L. BRUNO
Temporary President of the Senate
SHELDON SILVER
Speaker of theAssembly