S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3764
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 31, 2019
                                ___________
 
 Introduced  by M. of A. PRETLOW -- read once and referred to the Commit-
   tee on Health
 
 AN ACT to amend the public health law, in relation to  excluding  patios
   and  other  outdoor  areas  on  the premises of any entity licensed to
   operate a video lottery gaming facility from restrictions of the Clean
   Indoor Air act

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  1399-q  of  the public health law, as amended by
 chapter 335 of the laws of 2017, 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;
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02377-01-9

 A. 3764                             2
 
 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;
   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; AND
   9. PATIOS AND OTHER OUTDOOR  AREAS  ON  THE  PREMISES  OF  ANY  ENTITY
 LICENSED  TO OPERATE A VIDEO LOTTERY GAMING FACILITY PURSUANT TO SECTION
 ONE THOUSAND SIX HUNDRED SEVENTEEN-A OF THE TAX LAW WHICH ARE COVERED BY
 A ROOF OR OTHER CEILING ENCLOSURE; PROVIDED THAT SUCH COVERED  PATIO  OR
 OTHER  OUTDOOR  AREA  MUST  BE CLEARLY DESIGNATED AS A SMOKING AREA, AND
 MUST EITHER (A) BE COMPLETELY OPEN ON AT LEAST ONE SIDE, WITH NO WALL ON
 ONE SIDE, OR (B) BE OPEN ON TWO OR MORE SIDES, WITH PARTIAL WALLS ON THE
 TWO OR MORE OPEN SIDES TO THE HEIGHT OF NOT MORE THAN FIFTY  PERCENT  OF
 THE  DISTANCE  BETWEEN  THE  FLOOR  AND CEILING. AIR PERMEABLE MATERIALS
 WHICH FUNCTION AS A WEATHER BARRIER AND WHICH DO  NOT  PROVIDE  A  RIGID
 PARTITION  SHALL  BE  DISREGARDED  FOR PURPOSES OF DETERMINING WHETHER A
 COVERED PATIO OR OTHER OUTDOOR AREA IS OPEN ON ONE, TWO OR  MORE  SIDES.
 JURISDICTION  IN  ALL MATTERS PERTAINING TO A SMOKING AREA ON PATIOS AND
 OTHER OUTDOOR AREAS ON THE PREMISES OF ANY ENTITY LICENSED TO OPERATE  A
 VIDEO  LOTTERY  GAMING  FACILITY  PURSUANT  TO  SECTION ONE THOUSAND SIX
 HUNDRED SEVENTEEN-A OF THE TAX LAW IN THIS STATE IS  VESTED  EXCLUSIVELY
 IN  THE  STATE. ANY PROVISION OF ANY LOCAL LAW OR ORDINANCE, OR ANY RULE
 OR REGULATION PROMULGATED THERETO, GOVERNING OR  PROHIBITING  A  SMOKING
 AREA  ON  PATIOS  AND  OTHER OUTDOOR AREAS ON THE PREMISES OF ANY ENTITY
 LICENSED TO OPERATE A VIDEO LOTTERY GAMING FACILITY PURSUANT TO  SECTION
 ONE  THOUSAND SIX HUNDRED SEVENTEEN-A OF THE TAX LAW IN THE STATE SHALL,
 UPON THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND NINE-
 TEEN WHICH ADDED THIS SUBDIVISION, BE PREEMPTED.
   § 2. This act shall take effect immediately.