10 Smoking Under the New York City Smoke-Free Air Act
§ 10-01 Definitions and Construction of Words and Terms.
(a) Act. "Act" means the Smoke-Free Air Act, as provided in Chapter 5, Title 17 of the New York City Administrative Code (the "Administrative Code"), as amended by Local Law No. 47 of 2002.
(b) Bar. "Bar" has the meaning set forth in § 17-502(b) of the Act or subdivision (1) of § 1399-n of the New York State Public Health Law, whichever is more inclusive.
(c) Cannabis. "Cannabis" as defined in paragraph 5 of section 3 of New York State's Cannabis Law (as added by L 2021, c 92, § 2, eff. March 31, 2021), also known as the "Marihuana Regulation and Taxation Act" ("MRTA");
(d) Commissioner. "Commissioner" means the Commissioner of the New York City Department of Health and Mental Hygiene.
(e) Compensation. "Compensation" means any money, gratuities, privileges or benefits received in return for work performed or services rendered.
(f) Department. "Department" means the New York City Department of Health and Mental Hygiene.
(g) Employee. "Employee" means an employee as defined in § 17-502(h) of the Act. There shall be a rebuttable presumption that any person who performs work or renders services for compensation, for any period(s) of time, at the direction of an operator of an entity or facility which is subject to the provisions of the Act, is an employee of such entity.
(h) Enclosed room. "Enclosed room" means a room which is completely enclosed on all sides by solid floor-to-ceiling walls, windows, or solid floor-to-ceiling partitions, and which complies with all applicable Building Code and Fire Code requirements. Any such windows in such room must remain closed while people are smoking in the room unless the windows open to the exterior. Any doors must remain closed while people are smoking in the room except to the extent necessary to permit ingress and egress to and from such room. Such room must be ventilated in a manner that shall prevent emission of smoke to any other interior part of the facility.
(i) Entrance. "Entrance" means every means of entering or exiting a room, facility, or premises ordinarily used by the public and/or employees.
(j) Incidental service and/or sales of food and/or drink. For the purpose of 24 RCNY § 10-04, service of food and/or drink shall be deemed "incidental" to the purpose of promoting and sampling tobacco products, where such food and/or drink is prepackaged or requires no on-site preparation or monitoring, and there is no service or self-service of potentially hazardous foods, as defined in 24 RCNY Health Code § 81.09, within the enclosed room in which the event is held.
(k) Membership association. "Membership association" has the meaning set forth in § 17-502(ff) of the Act.
(l) On-site agent. "On-site agent" means an employee designated by a building operator, owner or manager to inform persons that smoking is prohibited on the building premises.
(m) Open for business. For the purpose of § 23 of Local Law 47 of 2002 and 24 RCNY § 10-02(c), the term "open for business" includes any time that employees are present in such establishment or any time the establishment is open to the public.
(n) Overhang. "Overhang" means any roof, ceiling or other complete or partial covering of, or over, an outdoor dining area of a restaurant.
(o) Outdoor dining area. "Outdoor dining area" means any patio, courtyard, sidewalk cafe, backyard, rooftop or terrace, or other outdoor area of a restaurant, with or without seating, that is designated for the consumption or service of food or drink.
(p) Repealed.
(q) Permittee. "Permittee" means a person who holds a valid permit issued pursuant to Articles 5 and 81 of the New York City Health Code to operate a bar, restaurant or other food service establishment or who holds a valid permit issued pursuant to § 17-513.5 of the New York City Administrative Code to operate a non-tobacco hookah establishment.
(r) Place of employment. "Place of employment" shall have the meaning set forth in § 17-502(m) of the Act.
(s) Principal owner. "Principal owner" has the meaning set forth in § 17-502(hh) of the Act.
(t) Rules. "Rules" means Chapter 10 of Title 24 of the Rules of the City of New York.
(u) Repealed.
(v) State law. "State law" means Article 13-E of the Public Health Law of the State of New York ("Regulation of Smoking in Certain Public Areas"), as amended.
(w) Tobacco bar. "Tobacco bar" has the meaning set forth in § 17-502(jj) of the Act.
(x) Electronic cigarette. "Electronic cigarette" has the meaning described in § 17-502(qq) of the Act.
(y) Restaurant. "Restaurant" has the meaning described in § 17-502(r) of the Act.
(z) Retail tobacco store. "Retail tobacco store" has the meaning described in § 17-502(u) of the Act.
(z-1) Retail electronic cigarette store. "Retail electronic cigarette store" has the meaning described in § 17-502(rr) of the Act.
(aa) Hookah. “Hookah” shall mean a type of water pipe with a long flexible tube for drawing smoke through water and cooling it.
(bb) Non-tobacco hookah establishment. “Non-tobacco hookah establishment” shall mean an establishment that, as of October 17, 2017, generated fifty percent or more of its total annual gross sales during the preceding calendar year from the on-site sale of non-tobacco smoking products, continues to meet that fifty percent threshold for gross annual sales annually, and that has a permit issued by the Department.
(cc) Non-tobacco smoking product. “Non-tobacco smoking product” shall mean any product that does not contain tobacco or nicotine and that is designed for human use or consumption by the inhalation of smoke, including but not limited to (i) pipes, water pipes, rolling papers, and any other component part, or accessory of such product and (ii) shisha, as defined in subdivision z of § 17-702 of the Administrative Code.
(dd) Shisha. “Shisha” shall mean any product made primarily of tobacco or other leaf, or any combination thereof, smoked or intended to be smoked in a hookah or water pipe as set forth in subdivision z of § 17-702 of the Administrative Code.
(ee) Smoking. “Smoking” means inhaling, exhaling, burning, or carrying any lit or heated cigar, cigarette, little cigar, pipe, water pipe, herbal cigarette, non-tobacco smoking product, or any similar form of lighted object or device designed for human use or consumption by the inhalation of smoke.
(Amended City Record 4/10/2018, eff. 5/10/2018; amended City Record 7/7/2022, eff. 8/6/2022)
(a) Except as otherwise specifically provided in the Act, in these rules, or in other applicable law, smoking shall be prohibited in all indoor areas of all public places and places of employment, and certain outdoor areas in accordance with §§ 17-503(a) and 17-504 of the Act, and other applicable law, and all enclosed areas regulated by the State law, the Act and these rules, including areas which have any full or partial overhead ceiling, roof or other covering. Except as otherwise specifically provided in the Act, in these rules, or in other applicable law, using electronic cigarettes shall be prohibited in all indoor areas of all public places and places of employment, and certain outdoor areas in accordance with §§ 17-503(a) and 17-504 of the Act, and other applicable law, and all enclosed areas regulated by the Act and these rules, including areas that have any full or partial overhead ceiling, roof or other covering.
(b) Smoking shall be prohibited in a tobacco business, as defined by § 17-502(aa) of the Act; except that smoking shall be permitted on no more than two floors of a building occupied by such tobacco business, and only within areas of such floors which are designated by such business for the purpose of testing or development of tobacco or tobacco products and only if such tobacco business has applied for and has been issued a waiver of the State law prohibition on smoking in such premises, in accordance with § 1399-u of the State law and 24 RCNY § 10-15.
(c) Smoking cannabis or using electronic cigarettes to vape cannabis shall be prohibited in the following areas:
(ii) Private automobiles;
(iii) Retail tobacco stores;
(iv) Tobacco bars;
(v) Outdoor dining areas of food service establishments;
(vi) Enclosed rooms in food service establishments, bars, catering halls, convention halls, hotel and motel conference rooms, and other such similar facilities, including 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;
(vii) Retail electronic cigarette stores.
(Amended City Record 7/7/2022, eff. 8/6/2022)
§ 10-03 Smoking Tobacco, and Electronic Cigarette Use to Vape Nicotine, Not Regulated.
Smoking tobacco, and using electronic cigarettes to vape nicotine, are not regulated in:
(b) Hotel and motel guest rooms;
(c) Private automobiles;
(d) Registered retail tobacco stores, as defined in 24 RCNY § 10-01(y); and
(e) Registered retail electronic cigarette stores, as defined in 24 RCNY § 10-01(z), provided however, that only the use of electronic cigarettes to vape nicotine is not regulated in such stores.
(Amended City Record 7/7/2022, eff. 8/6/2022)
§ 10-04 Tobacco, and Electronic Cigarette, Promotion Public Events.
Smoking tobacco, and using electronic cigarettes to vape nicotine, may be permitted in an enclosed room, as defined in 24 RCNY § 10-01(g), in a restaurant, bar, cabaret, catering hall, convention hall, hotel or motel conference room, or other such similar facility, where smoking is otherwise prohibited, when the public is invited to attend a specific event held for the primary purpose of promoting and sampling tobacco products or electronic cigarettes, provided that:
(a) Notice of the public event shall be provided to the Department on forms furnished by the Department. Completed forms shall be received by the Department no later than two (2) weeks prior to the event.
(i) The Department may charge a fee not to exceed $100.00 per notice.
(ii) Signs shall be posted in accordance with 24 RCNY § 10-12 and shall contain one of the following messages:
(A) "SMOKING PERMITTED AT THIS EVENT. NOTICE OF THIS EVENT HAS BEEN FILED WITH THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE IN ACCORDANCE WITH THE NEW YORK CITY SMOKE-FREE AIR ACT."
(B) "ELECTRONIC CIGARETTE USE PERMITTED AT THIS EVENT. NOTICE OF THIS EVENT HAS BEEN FILED WITH THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE IN ACCORDANCE WITH THE NEW YORK CITY SMOKE-FREE AIR ACT."
(C) "SMOKING AND ELECTRONIC CIGARETTE USE PERMITTED AT THIS EVENT. NOTICE OF THIS EVENT HAS BEEN FILED WITH THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE IN ACCORDANCE WITH THE NEW YORK CITY SMOKE-FREE AIR ACT."
(b) Service of food and drink shall be incidental to the promotion and sampling of tobacco products or electronic cigarettes.
(c) If tobacco products are to be distributed at the event for sampling, such distribution shall be in compliance with all laws and rules relating to the distribution of tobacco products, including but not limited to §§ 17-176; and 20-202 of the Administrative Code and § 1399-bb of the Public Health Law.
(d) (i) No such facility shall be authorized to permit smoking pursuant to this section on more than two (2) days in any calendar year unless such facility has applied for and has been issued a waiver of the State law, in accordance with § 1399-u of the State law and 24 RCNY § 10-15, allowing such events to be held in any facility on no more than five (5) days in any calendar year.
(ii) No such facility will be authorized to permit electronic cigarette use on more than five (5) days in any calendar year.
(Amended City Record 7/7/2022, eff. 8/6/2022)
Smoking, and using electronic cigarettes, may be permitted in an enclosed room, as defined in 24 RCNY § 10-01(g), in certain residential health care facilities offering health related services, as defined in § 17-502(q) and (dd) of the Act, and facilities providing day treatment programs, as defined in § 17-502(cc) of the Act, which room has been designated for smoking, and using electronic cigarettes, by patients, in accordance with the following terms and conditions:
(a) Smoking, and electronic cigarette use, rooms shall comply with all applicable Building Code and Fire Code requirements.
(b) Smoking rooms shall have the prior approval of the New York City Fire Department and, on request of any person authorized to enforce the Act, the operator or person in charge of the facility shall make available for inspection the most recent inspection report from the Fire Department showing such approval.
(c) No persons other than patients of such facilities shall be allowed to smoke or use electronic cigarettes in such rooms.
(d) Signs shall be posted in accordance with 24 RCNY § 10-12 and shall contain one of the following messages:
(i) "SMOKING PERMITTED. IN ACCORDANCE WITH THE NEW YORK CITY SMOKE-FREE AIR ACT, ONLY PATIENTS OF THIS FACILITY MAY SMOKE IN THIS ROOM."
(ii) "ELECTRONIC CIGARETTE USE PERMITTED, IN ACCORDANCE WITH THE NEW YORK CITY SMOKE-FREE AIR ACT, ONLY PATIENTS OF THIS FACILITY MAY USE ELECTRONIC CIGARETTES IN THIS ROOM."
(iii) "SMOKING AND ELECTRONIC CIGARETTE USE PERMITTED. IN ACCORDANCE WITH THE NEW YORK CITY SMOKE-FREE AIR ACT, ONLY PATIENTS OF THIS FACILITY MAY SMOKE OR USE ELECTRONIC CIGARETTES IN THIS ROOM."
(e) In addition, operators of residential health care facilities defined in § 17-502(q) of the Act, which are prohibited by the State law from allowing smoking on premises under their management or control, may apply to the Department for a waiver of the State law pursuant to 24 RCNY § 10-15. If a waiver of the State law is granted, such rooms shall be constructed and operated in accordance with subdivisions (a), (b), (c), and (d) of this section.
§ 10-10 Outdoor Dining Areas.
(a) Represents a separate and discrete area of a restaurant, as defined in § 17-502(r) of the Act, in which all tables and/or chairs in the outdoor smoking and electronic cigarette use area are located three (3) or more feet apart from all tables and/or chairs in the indoor and outdoor non-smoking and non-electronic cigarettes use areas, measured from the closest leading edges of all tables in the non-smoking and non-electronic cigarette use areas to the closest leading edges of all tables in the area where smoking, and using electronic cigarettes, is permitted and seating, if provided, is arranged so that no chairs in the smoking and electronic cigarette use area may be deliberately or inadvertently placed within the three (3) foot separation area;
(b) Constitutes no more than twenty-five (25) percent of the total outdoor seating or standing capacity of each outdoor area designated for food or drink consumption;
(c) Has no roof, ceiling, overhead structure, or other overhang as defined in 24 RCNY § 10-01 which either fully or partially covers any part of an outdoor dining area where smoking, and using electronic cigarettes, is permitted; and
(d) Is clearly designated by signage as an area where smoking, and using electronic cigarettes, is permitted.
(e) Staff of the establishment shall ask patrons and prospective patrons, prior to seating, whether they prefer seating in a smoking and electronic cigarette use, or no-smoking and no electronic cigarette use, part of an outdoor dining area, or in an area where smoking is not permitted but electronic cigarette use is permitted, if the restaurant has established such an area.
(Amended City Record 7/7/2022, eff. 8/6/2022)
§ 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.
§ 10-13 Enforcement.
(a) Every owner, operator, employer, manager, or other person in control of a building, public place, or place of employment, or on-site agent shall comply with the applicable information and notification provisions of § 17-507 of the Act.
(b) Every employer shall establish and/or update a written smoking policy that conforms with the Act and these rules. Every employer must establish and/or update a written electronic cigarette use policy that conforms with the Act and these rules.
(c) Any certification of correction required pursuant to § 17-508(g) of the Act shall be filed with the Department within twenty (20) days of the date the order to correct was issued.
(i) The certification shall include the name and address of the premises and the docket number of the notice of violation and attach a copy of the order to correct and the Department's inspection report; shall be typed or clearly printed in ink; shall list and state for each violation that such violation has been corrected and briefly describe how the correction was accomplished, and shall indicate how respondent plans to prevent such violation(s) from recurring.
(ii) Such supporting documentation as the Department may require shall be submitted with the certification.
(iii) The certification shall be signed and dated by the permittee, owner, director, officer, partner, manager, operator or other person having control, and shall be sworn to before a notary public.
(iv) The certification shall be mailed or delivered to the Department at the address specified on the order to correct.
(d) Violations of the Act shall be punishable as provided in the Act. Violations of these rules which are not also violations of the Act shall be subject to a penalty not to exceed one thousand dollars ($1,000), in accordance with Section 555(b)(2) of the Charter.
(e) Where the Commissioner has issued a license or permit pursuant to 24 RCNY Health Code Articles 5 and 81, he or she may suspend or revoke such permit for such reasons as she or he determines is sufficient grounds for suspension or revocation, in accordance with 24 RCNY Health Code § 5.17(b). Such reasons may include, but not be limited to, willful or continuous violations of the Smoke-Free Air Act and these rules.
§ 10-14 Construction.
(a) The provisions of these rules shall not be interpreted or construed to permit smoking or electronic cigarette use where it is prohibited or otherwise restricted by other applicable laws, rules or regulations.
(b) If any provision of this Chapter is adjudged invalid by any court of competent jurisdiction, such judgment shall not affect or impair the validity of the remainder of this Chapter.
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