STATE OF NEW YORK
________________________________________________________________________
3764
2019-2020 Regular Sessions
IN ASSEMBLY
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:
1 Section 1. Section 1399-q of the public health law, as amended by
2 chapter 335 of the laws of 2017, is amended to read as follows:
3 § 1399-q. Smoking and vaping restrictions inapplicable. This article
4 shall not apply to:
5 1. Private homes, private residences and private automobiles;
6 2. A hotel or motel room rented to one or more guests;
7 3. Retail tobacco businesses;
8 4. Membership associations; provided, however, that smoking and vaping
9 shall only be allowed in membership associations in which all of the
10 duties with respect to the operation of such association, including, but
11 not limited to, the preparation of food and beverages, the service of
12 food and beverages, reception and secretarial work, and the security
13 services of the membership association are performed by members of such
14 membership association who do not receive compensation of any kind from
15 the membership association or any other entity for the performance of
16 such duties;
17 5. Cigar bars that, in the calendar year ending December thirty-first,
18 two thousand two, generated ten percent or more of its total annual
19 gross income from the on-site sale of tobacco products and the rental of
20 on-site humidors, not including any sales from vending machines, and is
21 registered with the appropriate enforcement officer, as defined in
22 subdivision one of section thirteen hundred ninety-nine-t of this arti-
23 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
1 renewable only if: (a) in the preceding calendar year, the cigar bar
2 generated ten percent or more of its total annual gross income from the
3 on-site sale of tobacco products and the rental of on-site humidors, and
4 (b) the cigar bar has not expanded its size or changed its location from
5 its size or location since December thirty-first, two thousand two;
6 6. Outdoor dining areas of food service establishments with no roof or
7 other ceiling enclosure; provided, however, that smoking and vaping may
8 be permitted in a contiguous area designated for smoking and vaping so
9 long as such area: (a) constitutes no more than twenty-five percent of
10 the outdoor seating capacity of such food service establishment, (b) is
11 at least three feet away from the outdoor area of such food service
12 establishment not designated for smoking and vaping, and (c) is clearly
13 designated with written signage as a smoking and vaping area;
14 7. Enclosed rooms in food service establishments, bars, catering
15 halls, convention halls, hotel and motel conference rooms, and other
16 such similar facilities during the time such enclosed areas or rooms are
17 being used exclusively for functions where the public is invited for the
18 primary purpose of promoting and sampling tobacco products or electronic
19 cigarettes, and the service of food and drink is incidental to such
20 purpose, provided that the sponsor or organizer gives notice in any
21 promotional material or advertisements that smoking and vaping will not
22 be restricted, and prominently posts notice at the entrance of the
23 facility and has provided notice of such function to the appropriate
24 enforcement officer, as defined in subdivision one of section thirteen
25 hundred ninety-nine-t of this article, at least two weeks prior to such
26 function. The enforcement officer shall keep a record of all tobacco
27 sampling events, and such record shall be made available for public
28 inspection. No such facility shall permit smoking and vaping under this
29 subdivision for more than two days in any calendar year; [and]
30 8. Retail electronic cigarette stores, provided however, that such
31 stores may only permit the use of electronic cigarettes; and
32 9. Patios and other outdoor areas on the premises of any entity
33 licensed to operate a video lottery gaming facility pursuant to section
34 one thousand six hundred seventeen-a of the tax law which are covered by
35 a roof or other ceiling enclosure; provided that such covered patio or
36 other outdoor area must be clearly designated as a smoking area, and
37 must either (a) be completely open on at least one side, with no wall on
38 one side, or (b) be open on two or more sides, with partial walls on the
39 two or more open sides to the height of not more than fifty percent of
40 the distance between the floor and ceiling. Air permeable materials
41 which function as a weather barrier and which do not provide a rigid
42 partition shall be disregarded for purposes of determining whether a
43 covered patio or other outdoor area is open on one, two or more sides.
44 Jurisdiction in all matters pertaining to a smoking area on patios and
45 other outdoor areas on the premises of any entity licensed to operate a
46 video lottery gaming facility pursuant to section one thousand six
47 hundred seventeen-a of the tax law in this state is vested exclusively
48 in the state. Any provision of any local law or ordinance, or any rule
49 or regulation promulgated thereto, governing or prohibiting a smoking
50 area on patios and other outdoor areas on the premises of any entity
51 licensed to operate a video lottery gaming facility pursuant to section
52 one thousand six hundred seventeen-a of the tax law in the state shall,
53 upon the effective date of the chapter of the laws of two thousand nine-
54 teen which added this subdivision, be preempted.
55 § 2. This act shall take effect immediately.
