S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        6951--A
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                    April 15, 2015
                                      ___________
       Introduced  by M. of A. PRETLOW -- read once and referred to the Commit-
         tee on Health -- committee discharged, bill amended, ordered reprinted
         as amended and recommitted to said committee
       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 13 of the laws of 2003, is amended to read as follows:
    3    S 1399-q. Smoking restrictions inapplicable. This  article  shall  not
    4  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 shall only
    9  be  allowed  in  membership associations in which all of the duties with
   10  respect to the operation of such association, including, but not limited
   11  to, the preparation of food and  beverages,  the  service  of  food  and
   12  beverages,  reception and secretarial work, and the security services of
   13  the membership association are performed by members of  such  membership
   14  association who do not receive compensation of any kind from the member-
   15  ship association or any other entity for the performance of such duties;
   16    5. Cigar bars that, in the calendar year ending December thirty-first,
   17  two  thousand  two,  generated  ten  percent or more of its total annual
   18  gross income from the on-site sale of tobacco products and the rental of
   19  on-site humidors, not including any sales from vending machines, and  is
   20  registered  with  the  appropriate  enforcement  officer,  as defined in
   21  subdivision one of section thirteen hundred ninety-nine-t of this  arti-
   22  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.
                                                                  LBD09534-02-5
       A. 6951--A                          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 may be permit-
    8  ted in a contiguous area designated for smoking so long  as  such  area:
    9  (a)  constitutes no more than twenty-five percent of the outdoor seating
   10  capacity of such food service establishment, (b) is at least three  feet
   11  away from the outdoor area of such food service establishment not desig-
   12  nated for smoking, and (c) is clearly designated with written signage as
   13  a smoking area; [and]
   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, and the
   19  service of food and drink is incidental to such purpose,  provided  that
   20  the  sponsor  or  organizer  gives notice in any promotional material or
   21  advertisements that smoking will  not  be  restricted,  and  prominently
   22  posts  notice at the entrance of the facility and has provided notice of
   23  such function to the appropriate  enforcement  officer,  as  defined  in
   24  subdivision  one of section thirteen hundred ninety-nine-t of this arti-
   25  cle, at least two weeks prior to such function. The enforcement  officer
   26  shall  keep  a  record  of  all tobacco sampling events, and such record
   27  shall be made available for public inspection. No  such  facility  shall
   28  permit  smoking  under  this  subdivision  for more than two days in any
   29  calendar year[.]; AND
   30    8. PATIOS AND OTHER OUTDOOR  AREAS  ON  THE  PREMISES  OF  ANY  ENTITY
   31  LICENSED  TO OPERATE A VIDEO LOTTERY GAMING FACILITY PURSUANT TO SECTION
   32  ONE THOUSAND SIX HUNDRED SEVENTEEN-A OF THE TAX LAW WHICH ARE COVERED BY
   33  A ROOF OR OTHER CEILING ENCLOSURE; PROVIDED THAT SUCH COVERED  PATIO  OR
   34  OTHER  OUTDOOR  AREA  MUST  BE CLEARLY DESIGNATED AS A SMOKING AREA, AND
   35  MUST EITHER (A) BE COMPLETELY OPEN ON AT LEAST ONE SIDE, WITH NO WALL ON
   36  ONE SIDE, OR (B) BE OPEN ON TWO OR MORE SIDES, WITH PARTIAL WALLS ON THE
   37  TWO OR MORE OPEN SIDES TO THE HEIGHT OF NOT MORE THAN FIFTY  PERCENT  OF
   38  THE  DISTANCE  BETWEEN  THE  FLOOR  AND CEILING. AIR PERMEABLE MATERIALS
   39  WHICH FUNCTION AS A WEATHER BARRIER AND WHICH DO  NOT  PROVIDE  A  RIGID
   40  PARTITION  SHALL  BE  DISREGARDED  FOR PURPOSES OF DETERMINING WHETHER A
   41  COVERED PATIO OR OTHER OUTDOOR AREA IS OPEN ON ONE, TWO OR  MORE  SIDES.
   42  JURISDICTION  IN  ALL MATTERS PERTAINING TO A SMOKING AREA ON PATIOS AND
   43  OTHER OUTDOOR AREAS ON THE PREMISES OF ANY ENTITY LICENSED TO OPERATE  A
   44  VIDEO  LOTTERY  GAMING  FACILITY  PURSUANT  TO  SECTION ONE THOUSAND SIX
   45  HUNDRED SEVENTEEN-A OF THE TAX LAW IN THIS STATE IS  VESTED  EXCLUSIVELY
   46  IN  THE  STATE. ANY PROVISION OF ANY LOCAL LAW OR ORDINANCE, OR ANY RULE
   47  OR REGULATION PROMULGATED THERETO, GOVERNING OR  PROHIBITING  A  SMOKING
   48  AREA  ON  PATIOS  AND  OTHER OUTDOOR AREAS ON THE PREMISES OF ANY ENTITY
   49  LICENSED TO OPERATE A VIDEO LOTTERY GAMING FACILITY PURSUANT TO  SECTION
   50  ONE  THOUSAND SIX HUNDRED SEVENTEEN-A OF THE TAX LAW IN THE STATE SHALL,
   51  UPON THE EFFECTIVE DATE OF THE CHAPTER  OF  THE  LAWS  OF  TWO  THOUSAND
   52  FIFTEEN WHICH ADDED THIS SUBDIVISION, BE PREEMPTED.
   53    S 2. This act shall take effect immediately.