S T A T E   O F   N E W   Y O R K
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                                  2543--A
     Cal. No. 646
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2017
                                ___________
 
 Introduced  by Sens. HANNON, AKSHAR, ALCANTARA, AVELLA, BRESLIN, BROOKS,
   CARLUCCI, COMRIE, FUNKE, HAMILTON, HELMING, JACOBS, KAMINSKY, KRUEGER,
   LARKIN, LAVALLE, PERSAUD, RITCHIE, VALESKY -- read twice  and  ordered
   printed,  and  when printed to be committed to the Committee on Health
   -- reported favorably from said committee, ordered to first and second
   report, ordered to a third reading,  amended  and  ordered  reprinted,
   retaining its place in the order of third reading
 
 AN  ACT  to amend the public health law, in relation to including vaping
   within the provisions of law  regulating  smoking  in  certain  public
   areas
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 1399-n of the  public  health  law  is  amended  by
 adding three new subdivisions 9, 10 and 11 to read as follows:
   9. "VAPING" MEANS THE USE OF AN ELECTRONIC CIGARETTE.
   10.  "ELECTRONIC CIGARETTE" SHALL HAVE THE SAME MEANING AS IN SUBDIVI-
 SION THIRTEEN OF SECTION THIRTEEN HUNDRED NINETY-NINE-AA OF  THIS  CHAP-
 TER.
   11.  "RETAIL  ELECTRONIC CIGARETTE STORE" MEANS A RETAIL STORE DEVOTED
 PRIMARILY TO THE SALE OF ELECTRONIC CIGARETTES, AND IN WHICH THE SALE OF
 OTHER PRODUCTS IS MERELY INCIDENTAL. THE SALE  OF  SUCH  OTHER  PRODUCTS
 SHALL  BE CONSIDERED INCIDENTAL IF SUCH SALES GENERATE LESS THAN TWENTY-
 FIVE PERCENT OF THE TOTAL ANNUAL GROSS SALES.
   § 2. Section 1399-q of the public health law, as amended by chapter 13
 of the laws of 2003, is amended to read as follows:
   § 1399-q. Smoking AND VAPING restrictions inapplicable.  This  article
 shall not apply to:
   1. Private homes, private residences and private automobiles;
   2. A hotel or motel room rented to one or more guests;
   3. Retail tobacco businesses;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01779-02-7

 S. 2543--A                          2
 
   4. Membership associations; provided, however, that smoking AND VAPING
 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 membership 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 AND VAPING  may
 be  permitted  in a contiguous area designated for smoking AND VAPING 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 designated for smoking AND VAPING, and (c) is clearly
 designated with written signage as a smoking AND VAPING 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 OR ELECTRONIC
 CIGARETTES, 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 AND VAPING 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 article, 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 AND VAPING under this
 subdivision for more than two days in any calendar year; AND
   8. RETAIL ELECTRONIC CIGARETTE STORES,  PROVIDED  HOWEVER,  THAT  SUCH
 STORES MAY ONLY PERMIT THE USE OF ELECTRONIC CIGARETTES.
   §  3. The article heading of article 13-E of the public health law, as
 added by chapter 244 of the laws of 1989, is amended to read as follows:
                               ARTICLE 13-E
         REGULATION OF SMOKING AND VAPING IN CERTAIN PUBLIC AREAS
   § 4. Section 1399-o of the public health law, as  amended  by  chapter
 389  of the laws of 2011, subdivision 2 as amended by chapter 179 of the
 laws of 2013, subdivision 3 as added by chapter 449 of the laws of 2012,
 and subdivision 4 as added by chapter  100  of  the  laws  of  2015,  is
 amended to read as follows:

 S. 2543--A                          3
 
   § 1399-o. Smoking AND VAPING restrictions. 1. Smoking AND VAPING shall
 not  be  permitted  and  no  person shall smoke OR VAPE in the following
 indoor areas:
   a. places of employment;
   b. bars;
   c.  food service establishments, except as provided in subdivision six
 of section thirteen hundred ninety-nine-q of this article;
   d. enclosed indoor areas open to  the  public  containing  a  swimming
 pool;
   e. public means of mass transportation, including subways, underground
 subway  stations, and when occupied by passengers, buses, vans, taxicabs
 and limousines;
   f. ticketing, boarding and  waiting  areas  in  public  transportation
 terminals;
   g.  youth  centers and facilities for detention as defined in sections
 five hundred twenty-seven-a and five hundred three of the executive law;
   h. 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 subdivi-
 sion when children enrolled in such day care are not present;
   i. 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;
   j. group homes for children as defined in section three hundred seven-
 ty-one of the social services law;
   k. public institutions  for  children  as  defined  in  section  three
 hundred seventy-one of the social services law;
   l.  residential treatment facilities for children and youth as defined
 in section 1.03 of the mental hygiene law;
   m. all public and private colleges, universities and other educational
 and vocational institutions, including dormitories, residence halls, and
 other group residential facilities that are owned or  operated  by  such
 colleges,  universities  and  other  educational  and  vocational insti-
 tutions, except that these restrictions shall not apply in any  off-cam-
 pus  residential  unit  occupied  by  a person who is not enrolled as an
 undergraduate student in such college, university or  other  educational
 or vocational institution;
   n. general hospitals and residential health care facilities as defined
 in  article  twenty-eight of this chapter, and other health care facili-
 ties licensed by the state in which persons reside;  provided,  however,
 that  the  provisions of this subdivision shall not prohibit smoking AND
 VAPING by patients in separate enclosed rooms of residential health care
 facilities, adult care facilities established or certified  under  title
 two of article seven of the social services law, community mental health
 residences established under section 41.44 of the mental hygiene law, or
 facilities  where  day treatment programs are provided, which are desig-
 nated as smoking AND VAPING rooms for patients  of  such  facilities  or
 programs;
   o.  commercial  establishments  used for the purpose of carrying on or
 exercising any trade, profession, vocation or charitable activity;
   p. indoor arenas;
   q. zoos; and
   r. bingo facilities.
   2. Smoking AND VAPING shall not be permitted and no person shall smoke
 OR VAPE in the following outdoor areas:

 S. 2543--A                          4
 
   a. ticketing, boarding or platform areas of railroad stations operated
 by the metropolitan transportation authority or its subsidiaries.
   b.  on  the  grounds  of general hospitals and residential health care
 facilities as defined in article twenty-eight of  this  chapter,  within
 fifteen  feet  of  a building entrance or exit or within fifteen feet of
 the entrance to or exit from the grounds of any such general hospital or
 residential health care facility. This subdivision  shall  not  prohibit
 smoking  AND VAPING by a patient or a visitor or guest of a patient of a
 residential health care facility in  a  separate  area  on  the  grounds
 designated  as  a smoking AND VAPING area by the residential health care
 facility, provided such designated smoking AND VAPING area is not within
 thirty feet of any building  structure  (other  than  a  non-residential
 structure  wholly  contained  within  the  designated smoking AND VAPING
 area), including any overhang, canopy, awning, entrance,  exit,  window,
 intake or exhaust.
   3. Smoking AND VAPING shall not be permitted and no person shall smoke
 OR VAPE within one hundred feet of the entrances, exits or outdoor areas
 of  any  public  or  private  elementary or secondary schools; provided,
 however, that the provisions of this  subdivision  shall  not  apply  to
 smoking  OR  VAPING in a residence, or within the real property boundary
 lines of such residential real property. The provisions of section thir-
 teen hundred ninety-nine-p of this  article  shall  not  apply  to  this
 subdivision.
   4. Smoking AND VAPING shall not be permitted and no person shall smoke
 OR VAPE within one hundred feet of the entrances, exits or outdoor areas
 of  any  after-school program licensed or registered pursuant to section
 three hundred ninety of the social services law; provided, however, that
 the provisions of this subdivision shall only apply on  those  days  and
 during  those hours in which such after-school programs are operational;
 and provided, further, that the provisions of this subdivision shall not
 apply to smoking OR VAPING in a residence, or within the  real  property
 boundary lines of such residential real property.
   §  5.  Section  1399-o-1 of the public health law, as added by chapter
 102 of the laws of 2013, is amended to read as follows:
   § 1399-o-1. Smoking AND VAPING restrictions; certain outdoor areas. 1.
 Smoking AND VAPING shall not be permitted and no person shall  smoke  OR
 VAPE  during  the  hours  between  sunrise  and sunset, when one or more
 persons under the age of twelve are present at any playground.  For  the
 purposes  of  this section, the term "playground" means an improved area
 designed, equipped, and set aside for play of six or more children which
 is not intended for use as an athletic playing field or athletic  court,
 and  shall include any play equipment, surfacing, fencing, signs, inter-
 nal pathways, internal land forms, vegetation, and  related  structures.
 Playgrounds or playground equipment constructed upon one, two and three-
 family  residential  real  property  are exempt from the requirements of
 this section. This section shall not apply  to  any  playground  located
 within the city of New York.
   2.  No  police  officer,  peace  officer,  regulatory  officer  or law
 enforcement official may arrest, ticket, stop  or  question  any  person
 based  solely  or  in part on an alleged violation of subdivision one of
 this section, nor may an alleged violation of subdivision  one  of  this
 section  support  probable cause to conduct any search or limited search
 of any person or his or her immediate surroundings.
   § 6. Section 1399-p of the public health law, as added by chapter  244
 of  the laws of 1989, subdivision 1 as amended by chapter 13 of the laws

 S. 2543--A                          5
 
 of 2003, and subdivision 3 as added by chapter 100 of the laws of  2015,
 is amended to read as follows:
   §  1399-p.  Posting  of  signs. 1. "Smoking" or "No Smoking" signs, OR
 "VAPING" OR "NO VAPING" SIGNS, or the international "No Smoking" symbol,
 which consists of a pictorial  representation  of  a  burning  cigarette
 enclosed  in  a circle with a bar across it, shall be prominently posted
 and properly maintained where smoking [is] AND VAPING ARE  regulated  by
 this  article,  by  the  owner, operator, manager or other person having
 control of such area.
   2. The owner, operator or manager of a hotel or motel that chooses  to
 develop  and  implement  a smoking AND VAPING policy for rooms rented to
 guests shall post a notice at the reception area of the establishment as
 to the availability, upon request, of rooms in which no smoking [is] AND
 VAPING ARE allowed.
   3. The provisions of this section shall apply to after-school programs
 that are subject to the provisions of subdivision four of section  thir-
 teen  hundred  ninety-nine-o of this article, provided that signs posted
 pursuant to this subdivision shall  specify  the  specific  time  period
 during which smoking AND VAPING shall be prohibited.
   §  7. Section 1399-r of the public health law, as added by chapter 244
 of the laws of 1989, is amended to read as follows:
   § 1399-r. General provisions. 1. Nothing  in  this  article  shall  be
 construed  to  deny the owner, operator or manager of a place covered by
 this article the right to designate the entire place, or any part there-
 of, as a nonsmoking AND NONVAPING area.
   2. The provisions of this article  shall  apply  to  the  legislative,
 executive  and  judicial  branches of state government and any political
 subdivision of the state.
   3. Smoking AND VAPING may not be permitted  where  prohibited  by  any
 other  law,  rule,  or  regulation  of any state agency or any political
 subdivision of the state. Nothing herein shall be construed to  restrict
 the  power  of  any  county, city, town, or village to adopt and enforce
 additional local law, ordinances, or regulations which  comply  with  at
 least the minimum applicable standards set forth in this article.
   § 8. Section 1399-s of the public health law, as amended by chapter 13
 of the laws of 2003, 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 area in which
 smoking AND VAPING is prohibited or restricted pursuant to section thir-
 teen 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 area was not exercised by the respondent, but rather by a
 lessee, the sublessee or any other person. To establish  an  affirmative
 defense,  the  respondent  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 affi-
 davit and other proof shall be mailed by certified mail to the appropri-
 ate enforcement officer within thirty days of receipt of such notice  of
 violation.
   2.  It  shall be unlawful for an employer whose place of employment is
 subject to subdivision 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, it shall be an  affirmative  defense

 S. 2543--A                          6
 
 that  the  employer has made good faith efforts to ensure that employees
 comply with the provisions of this article.
   3.  It  shall  be unlawful for any person to smoke OR VAPE in any area
 where smoking   AND VAPING is prohibited  or  restricted  under  section
 thirteen hundred ninety-nine-o of this article.
   §  9.  Subdivision  4  of  section 1399-t of the public health law, as
 amended by chapter 13 of the  laws  of  2003,  is  amended  to  read  as
 follows:
   4.  The owner, manager, operator or other person having control of any
 area subject to the provisions of this article, shall inform,  or  shall
 designate  an  agent  who shall be responsible for informing individuals
 smoking OR VAPING in an area in which smoking OR VAPING is not permitted
 that they are in violation of this article.
   § 10. Subdivision 2 of section 1399-u of the  public  health  law,  as
 amended  by  chapter  13  of  the  laws  of  2003, is amended to read as
 follows:
   2. 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  OR  VAPING  and  to ensure that the waiver is consistent with the
 general purpose of this article.
   § 11. Section 1399-w of the public health law, as added by chapter 244
 of the laws of 1989, is amended to read as follows:
   § 1399-w. Limitation of causes of action.  An employer, administrator,
 manager, owner or operator of any indoor area, food  service  establish-
 ment,  or  place of employment regulated by this article who complies or
 fails to comply with the provisions of this article shall not be subject
 to any legal liability or action solely as a result of  such  compliance
 or  noncompliance except as provided in section thirteen hundred ninety-
 nine-v of this article. Nothing in any other  section  of  this  article
 shall  be  construed  to  create, impair, alter, limit, modify, enlarge,
 abrogate or restrict any theory of liability upon which any  person  may
 be held liable to any other person for exposure to smoke OR VAPING.
   §  12.  Section 1399-x of the public health law, as amended by chapter
 389 of the laws of 2011, is amended to read as follows:
   § 1399-x. Rules and regulations. The commissioner shall not promulgate
 any rules or regulations to effectuate the provisions of  section  thir-
 teen  hundred  ninety-nine-n,  paragraph f of subdivision one of section
 thirteen hundred ninety-nine-o or subdivision one  of  section  thirteen
 hundred  ninety-nine-p  of  this  article.  The  commissioner  shall not
 promulgate any rules or regulations that create, limit  or  enlarge  any
 smoking OR VAPING restrictions.
   §  13.  This act shall take effect on the thirtieth day after it shall
 have become a law; provided, however, that  effective  immediately,  the
 addition,  amendment  and/or  repeal of any rule or regulation necessary
 for the implementation of this act on its effective date  is  authorized
 and directed to be made and completed on or before such effective date.