New York State Law
Below are summaries of some tobacco-related laws that make New York a leader among tobacco control programs.
New York City:
Clean Indoor Air Act (CIAA)
The Clean Indoor Air Act was passed to regulate indoor smoking and prohibit smoking in all places of employment and restaurants. The purpose of the law is to reduce exposure to second-hand smoke in enclosed spaces and the health risks associated with second-hand smoke.
The indoor areas where smoking is prohibited include:
- Places of employment, meaning any indoor area “under the control of any employer in which employees of the employer perform services”;
- Bars, meaning any area, including outdoor seating, “devoted to the sale and service of alcoholic beverages for on-premises consumption”;
- Food service establishments, meaning any area, including outdoor seating (with exceptions described below) “in which the business is the sale of food for on-premises consumption”;
- Enclosed indoor areas open to the public containing a swimming pool;
- Public means of mass transportation, “including subways, underground subway stations, and when occupied by passengers, buses, vans, taxicabs and limousines”;
- Ticketing, boarding and waiting areas in public transportation terminals;
- Youth Centers and facilities for detention;
- Any facility that provides child care, “provided that such services provided in a private home are excluded . . . when children enrolled in such day care are not present.”
Signs must be posted to notify people of any smoking prohibition. “Smoking,” “No Smoking,” or the international “No Smoking” symbol must be displayed prominently on signs by the owner or manager of any premises where smoking is prohibited. The owner or manager of a hotel or motel that has chosen to implement a smoking policy must post a notice at the reception area about the availability of rooms in which no smoking is permitted.
There are exceptions to the indoor smoking prohibition. These exceptions are valid only if specific conditions identified in the statute are satisfied and include:
- Private homes, private residences and private automobiles;
- A hotel or motel room;
- Retail tobacco businesses;
- Membership associations, meaning non-profit entities created for an educational, political, social, charitable, philanthropic or other similar purpose;
- Registered cigar bars generating ten percent or more of annual gross income from the on-site sale of tobacco products;
- Outdoor dining areas of food service establishments with no roof or ceiling enclosure, separated from non-smoking outdoor area and clearly designated with appropriate signage;
- Enclosed rooms in food service establishments, bars, catering halls, hotel and motel conference rooms, and other 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 . . .”
The owner or operator of an area covered by the CIAA may designate a more inclusive nonsmoking area than is required. Additionally, any county or municipality may adopt and enforce additional nonsmoking laws, provided they meet or exceed the minimum standards of the CIAA.
The owner of an area covered by the CIAA may have a defense if a violation occurred while the area was under the control of a third party (e.g., a lessee). Similarly, an employer may have a defense to a violation of the CIAA by an employee if the employer made a good faith effort to enforce employees’ compliance with the law.
- Enforcement of the CIAA lies with the enforcement officer, who is typically the county board of health or another officer so designated by the county legislature or board of supervisors. In a city of one million people or more, the enforcement officer is the department of health and mental hygiene of that city.
- The owner or manager of any area subject to the CIAA is responsible for informing persons smoking in a prohibited area that they are violating this law. Any individual may register a complaint under the CIAA with the appropriate enforcement officer.
- If the enforcement officer determines a violation has occurred, a civil (monetary) penalty may be imposed after a hearing, the process for which is detailed in the statute. Any person aggrieved by the decision of an enforcement officer may appeal that decision to the commissioner within 30 days. The enforcement officer, subject to the outcome of any appeal, may bring an action to recover the civil penalty in court.
- An enforcement officer is to notify the commissioner of taxation and finance if any retail dealer does not display a “retail dealer certificate of license or registration from the department of taxation and finance.”
The enforcement officer may grant a waiver of any provision of the CIAA, provided that the person applying for the waiver establishes that (1) compliance with the provision would cause “undue financial hardship” or (2) other factors exist which make compliance unreasonable for that person. Each waiver may be subject to any conditions necessary to lessen the negative effects on persons exposed to resulting second-hand smoke.
The commissioner may impose a civil penalty for violation of this law not to exceed $2,000 for every violation. Any other enforcement officer may impose a civil penalty not exceeding $1,000 for a single violation.
The CIAA does not grant any private cause of action against an employer, manager or owner of any area regulated by this law solely as a result of compliance or noncompliance with this law. However, neither does the CIAA alter any other theory of liability under which a person may be held responsible for another’s exposure to second-hand smoke.
The commissioner shall not circulate any rules or regulations that “create, limit or enlarge” any of these or other smoking restrictions.
Purpose of ATUPA
The Adolescent Tobacco Use Prevention Act was passed to stop sales of tobacco products to minors and encompasses cigarettes, cigars, bidis, gutka, chewing tobacco, powdered tobacco, nicotine water, herbal cigarettes, shisha, electronic cigarettes, and smoking paraphernalia.
- Bidis are products made from tobacco wrapped in a temburni leaf or endra leaf, but this prohibition also includes any other product advertised to consumers as “beedies” or “bidis.”
- “Gutka” means a product containing lime paste, spices, areca and tobacco.
- “Nicotine water” is bottled water laced with nicotine.
- “Electronic cigarette” is defined as a battery-operated device that contains cartridges filled with a combination of nicotine, flavor and chemicals that are turned into vapor which is inhaled by the user.
- “Smoking paraphernalia” includes any pipe, water pipe, hookah, rolling papers, vaporizer or any other device designed for the inhalation of tobacco.
Who Enforces It?
Generally, enforcement is the responsibility of a county’s Board of Health. If a county doesn’t have a board of health, the county legislators or board of supervisors can designate a county officer to be in charge of enforcement.
- Enforcement Officers are officers designated to enforce smoking regulations and hold hearings. Any officer or employee of a city with a population of more than one million can be authorized to enforce local regulations regarding the sale of tobacco products to minors.
- Officers make regular visits to businesses that sell tobacco to ensure compliance with public health laws. These compliance visits can include staging an attempt by an underage youth to buy prohibited products.
How Does ATUPA Restrict Sales to Minors?
- Tobacco products must either be in a locked container or stored behind the counter in an area accessible only to store employees.
- Only those who can show a valid photo ID, passport, or armed forces ID that indicates they are at least eighteen can buy tobacco products, electronic cigarettes, shisha, or smoking paraphernalia.
- Identification is not required of individuals who reasonably appear to be at least twenty-five, BUT
- Saying someone appeared old enough is not a defense to an allegation of selling tobacco to minors.
- Business must also display the following sign in a conspicuous place:
- “SALE OF CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, ELECTRONIC CIGARETTES, ROLLING PAPERS OR SMOKING PARAPHERNALIA, TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW.”
- This sign must be printed on a white card in red letters at least one-half inch in height.
- Business owners can choose to use an electronic device capable of reading information on a state-issued ID card’s magnetic strip.
- If the information obtained by the scanner does not match the information contained in the strip, the attempted transaction should be denied.
- If the information obtained on the scanner does match the ID card, the use of the scanner provides a defense for business owners if who’ve been deceived into violating the law.
- Businesses that sell tobacco products or herbal cigarettes must charge for those products and cannot distribute coupons redeemable for tobacco products.
- This prohibition does not apply to selling newspapers or magazines that contain coupons.
In the following places, tobacco products can be distributed to those who can provide a photo ID indicating they are at least eighteen years old:
- Private functions where the seating arrangements are under the control of the function’s sponsor.
- Businesses that almost exclusively sell tobacco.
With five days written notice to the enforcement officer and within areas accessible only to those over eighteen, tobacco can be distributed at:
- Conventions and trade shows.
- Tobacco company events.
- Mill or manufacturing establishments and construction sites.
- All cigarettes must be sold in the manufacturer’s packaging which bears the health warnings required by law.
- Retailers cannot sell packages containing fewer than twenty cigarettes, packages of rolling tobacco containing less than 0.6 ounces, or packages of rolling papers (or rolling sleeves or leaves) with less than twenty sheets.
- Vending machines can only be located in bars or food service establishments with valid full liquor licenses, in private clubs or places of employment where the majority of members or employees are over eighteen, or in business that almost exclusively sell tobacco.
- Vending machines must be in plain view and under the supervision and control of the person in charge or a designated employee.
If an enforcement officer believes a retailer has violated the law, the officer will issue, either in person or by certified mail, a violation notice to appear at a hearing. If the hearing determines the retailer did break the law, the penalty includes a fine and an assignment of points.
- First time violations carry a fine of $300 – $1000 while subsequent violations range from $500 – $1500. Retailers found to have been selling tobacco products while their registration was suspended face a fine of $2500.
- An additional $50 surcharge is assessed for every violation. This money shall be used by enforcement officers to fund compliance checks.
- Retailers found to have sold cigarettes to minors are assigned 2 points. If they can show the individual who committed the violation had completed a state certified tobacco sales training program, the retailer is only assigned 1 point.
- Points stay on a retailer’s record three years and those with a total of three points or more have their dealer registration suspended for six months.
- Retailers that violate this article four times within three years have their registration revoked for one year. If the retailer is found to violate ATUPA during this period of suspension, their license is revoked permanently.
- ATUPA establishes a statewide program to prevent and control tobacco use through various school-based and community programs. An advisory board is created to advise the commissioner on preventing and reducing tobacco use and other tobacco issues.
- ATUPA also calls for regular evaluations of the effectiveness of efforts to reduce tobacco use, as well as annual reporting on enforcement efforts.
- ATUPA also makes it unlawful for cigarette sellers to ship cigarettes into New York State, except when shipping to licensed dealers, export warehouses, or government officials.
- Boxes containing cigarettes must be clearly marked with the word “cigarettes.” First time violation of this provision is a class A misdemeanor, subsequent violations are a class E felony.
Tax Laws Related to Tobacco Products
Article 20: Tax on Cigarettes and Tobacco Products
New York State imposes a $4.35 tax on a package of cigarettes, plus $0.68 per additional five cigarettes contained in that cigarette pack. A tax stamp must also be affixed to the front of every pack of cigarettes sold in the state.
Exceptions: Members of the U.S. armed forces may purchase cigarettes in New York tax-free. If the purchaser of cigarettes falls within the qualified Indian nation or tribe exception, he or she may purchase cigarettes tax-free on that nation’s property.
A qualified Indian nation or tribe falling under the tax exemption must use one of two methods to determine the amount of tax-free cigarettes it qualifies for. The two systems, prior approval system and probable demand system, are calculations established by the tax commission to allocate tax-free cigarettes to the nation or tribe based on numerous factors and only apply to the nation or tribe’s personal consumption. Prior approval system is detailed under § 471; the probable demand system is detailed under § 471-e.
Ongoing legal challenges have delayed the implementation and enforcement of the tax provisions affecting Native American retailers.
New York State imposes a use tax on cigarette purchases made by any individual outside of the state but consumed in the state. The use tax rate is equivalent to the cigarette sales tax ($4.35 per package plus $0.68 per additional five cigarettes contained in the package). However, a use tax is not imposed if it meets one of three exceptions: 1) the cigarette tax imposed under § 471 has already been paid; 2) the cigarettes are exempt from taxation under New York State tax law; or 3) the person brought into the state four hundred cigarettes or less. Otherwise, the individual must file a tax return with the tax commission and remit payment within 24 hours from the time the tax obligation is due.
New York State imposes a tax on all other tobacco products other than cigarettes, snuff (finely cut, ground, or powdered tobacco not intended for smoking), and little cigars (unlike cigarettes, which are wrapped in paper, little cigars are wrapped either wholly or partially in a tobacco-containing substance). These tobacco products are taxed at the rate of 75% of the wholesale price.
Snuff is taxed at $2 per ounce plus any fraction thereof if the weight of snuff is less than a full ounce. Little cigars are taxed at the same rate as cigarettes ($4.35 per package of little cigars plus $0.68 per additional five little cigars contained in that pack).
New York State imposes a use tax on all other tobacco product purchases, other than cigarettes, made by any individual outside of the state but consumed in the state. The use tax rate is equivalent to the sales tax for tobacco products other than cigarettes (75% of the wholesale price).
New York State imposes a use tax on snuff products of $2 per ounce, plus any fraction thereof if the snuff’s weight is less than a full ounce. The use tax on little cigars is equivalent to the cigarette sales tax ($4.35 per package of little cigars plus $0.68 per additional five little cigars contained in the package).
Tobacco distributors and wholesalers, who are already under the state’s licensing scheme to lawfully purchase and sell tobacco, are covered in other sections of the New York Tax Law. Therefore, this section applies to persons who would otherwise bypass the requisite state tax by purchasing cigarettes or tobacco products outside of New York State and selling them in-state.
Persons who receive or purchase tobacco products outside of New York State and thereafter sell them in-state for profit are liable for taxes pursuant to Article 20, Tax on Cigarettes and Tobacco Products. They will also be responsible for reporting and submitting the tax obligation as any in-state tobacco distributor or wholesaler would.
Qualified Indians may purchase tax-free cigarettes on qualified reservation property of their nation or tribe (lands held by an Indian nation or tribe that is located within the reservation of that nation or tribe in the state) for their own personal consumption. A qualified Indian is any person duly enrolled on the tribal rolls of one of New York’s Indian nations or tribes.
Since cigarettes purchased by qualified Indian nations or tribes are for personal consumption only, a tax is due as against Indian nations or tribes if the cigarettes are sold to:
- Qualified Indians purchasing cigarettes off their reservations;
- Qualified Indians purchasing cigarettes on another nation or tribe’s reservations; or
- Non-Indians making cigarette purchases on Indian reservations.
Under the exemption, the recognized governing body of an Indian nation or tribe may present coupons to licensed cigarette dealers to purchase tax-exempt cigarettes. Coupons are distributed quarterly to tribal members or tribal member cigarette sellers. Only Indian nations or tribes may redeem the coupons for tax-free cigarettes.
The distribution of coupons to qualified Indian nations or tribes is based on a probable demand calculation (the national average of cigarettes consumed per capita multiplied by the number of qualified Indians for each qualified nation or tribe). The probable demand calculation is also used to determine the amount of tax-free cigarettes to be allocated to qualified Indian nations or tribes that elected not to participate in the coupon system but instead use the prior approval system.
Tax agreements made between the Indian nation or tribe and the state take precedence over the provisions of the New York Tax Law.
Ongoing legal challenges have delayed the implementation and enforcement of the tax provisions affecting Native American retailers.
A wholesale dealer is a person or organization in the business of selling cigarettes or tobacco products to others in the business of selling cigarettes or tobacco products at the retail level. A wholesale dealer must have a license granted by the New York State tax commission to conduct such wholesale cigarettes or tobacco products business. The license is effective until revoked or suspended for cause or surrendered. It is not transferrable.
In order to obtain a wholesale license, the wholesale dealer must meet specific requirements, including obtaining a surety bond. Once the wholesale dealer has successfully obtained such a license, the license must be in public display at the dealer’s place of business. The fee to obtain a license may range between $1,000 and $1,500, depending on the applicant’s previous application status with the tax commission. This fee does not apply to cigarette or tobacco products vending machines. The tax commission has the discretion to require all wholesale dealers to file new licensing applications once every three years.
Cigarette agents and distributors may not sell cigarettes or tobacco products to an unlicensed wholesale dealer or one whose license was suspended or revoked. Likewise, a wholesale dealer is not allowed to sell cigarettes or tobacco products to an unregistered retail dealer or one whose registration was suspended or revoked. A retail dealer of cigarettes or tobacco products must be registered under § 480-a.
The tax commission has broad authority in terms of issuing, suspending, or revoking licenses to wholesale dealers. The commission also has authority to discipline retail dealers who purchase cigarettes or tobacco products from an unlicensed wholesale dealer.
The tax commission may refuse to issue, suspend, or cancel a license to a wholesale dealer for various violations of law. If the tax commission has found for cause reasons to revoke or suspend a license, the wholesale dealer has the right to a hearing to challenge the commission’s determination.
Tobacco retail dealers and sellers must register with the tax commission in order to sell cigarettes or tobacco products at the retail level. Retail dealers must also publicly display their registration certificate at the retail dealer’s place of business. Likewise, vending machines must have affixed a registration certificate. Retail dealers that do not have a retail store must place their certificates on their carts, stands, or any other devices used to sell cigarettes or tobacco products. Alternatively, vending machine registration must be completed by the machine’s owner or operator.
Registration certificates are only valid for one year and must be renewed each year. The application fee for retail dealers was amended in 2011 to $300. The registration is not transferrable.
Failure to publicly display a valid registration certificate at a retail dealer’s place of business may result in civil fines up to $35,000, and failure to publicly display a valid registration certificate on any vending machine may result in civil fines up to $6,000.
The tax commission may cancel or suspend the applicant or retail dealer’s registration certificate. A hearing may be available to the applicant or retail dealer under the provisions of New York Public Health Law, but no hearing rights are provided under the retail dealer registration provisions of the New York Tax Law. A retail dealer selling cigarettes without the required tax stamp or with counterfeit tax stamps can lead to its registration being suspended for up to five years.
If a retail dealer’s registration has been suspended or revoked, it has the right to seek a review by the tax commission to bring evidence or arguments challenging the commission’s decision. If the commission does not find a preponderance of proof that the retail dealer sold improperly stamped cigarettes, then the suspension or revocation will be lifted.
Tobacco product manufacturers must be certified under New York State’s Public Health Laws in order to conduct tobacco products and cigarette sales within the State. Therefore, tobacco agents may not stamp cigarettes produced by uncertified tobacco product manufacturers doing business in the State, and the agent must notify the tax commission of such violations.
Likewise, tobacco product manufacturers in the business of selling roll-your-own tobacco for retail sale must certify they are compliant with New York State’s Public Health Laws in order to conduct such business within the State. Manufacturers must send their certifications to distributors, and distributors must keep the certifications on file for five years. Otherwise, the distributor is prohibited from selling the manufacturer’s tobacco products.
Failure to pay tax or to timely file the necessary tax returns will subject the violator to a penalty based on the total amount of tax due unless the tax commission finds that the failure or delay was due to reasonable cause and not willful neglect, in which case it will determine the appropriate penalty due.
Revenue received from the collection of the State’s cigarette and tobacco products tax stamps shall be deposited and disposed of pursuant to the State Comptroller’s authority under New York Tax Law § 171(a).
Article 20-A: The Cigarette Marketing Standards
Cigarettes sold in New York State may not be sold below their basic costs. Basic costs include costs associated to every agent, wholesale dealer, and retail dealer involved in the process of putting such cigarettes up on the retail dealer’s store shelves. Furthermore, basic costs include the invoice cost of manufacturing the cigarettes and the cost of doing business in relation to each agent, wholesale dealer, and retail dealer involved in the distribution process. Cost of doing business may include—but is not limited to—labor, rent, taxes, insurance fees, and advertising costs. When determining the cost of doing business, the tax commission or a court may consider evidence of trade practices within a certain trade area or any evidence that an agent, wholesale dealer, or retail dealer may be trying to conceal the cigarettes’ true costs.
Agents, wholesale dealers, or retail dealers found in violation of the cigarette minimum price standards may face penalties ranging from license suspension and civil fines to license revocation. A party alleged to have violated the cigarette minimum price standards may be enjoined or restrained from committing future violations, and anyone harmed or threatened by such violations may sue in court. A prevailing plaintiff may seek damages, costs of bringing suit (including costs in relation to obtaining injunctive relief), and reasonable attorney’s fees.
Certain cigarette sales are exempt from the minimum pricing standards, such as sales made as an isolated incident, sales made not in the usual course of business, or sales that were sanctioned by a court.
The minimum pricing standards may not apply to agents, wholesale dealers, or retail dealers who advertise or sell cigarettes at a price made in good faith to meet a competitor’s price for the same cigarettes. However, this good faith price may not fall below the actual cost of the products, so the lowest price point any competitor within New York State may establish is the actual cost of cigarettes. Agents, wholesale dealers, and retail dealers are prohibited from establishing prices based on bankruptcy sales, closeout sales, or any sales made outside the ordinary channels of trade.
The tax commission—including its agents, employees, and independent contractors—is required to maintain secrecy as to the manner in which an agent, wholesale dealer, or retail dealer determines its costs of doing business. The commission is also prohibited from divulging information naming anyone who has provided such information to the tax commission in regards to any alleged violations of the minimum pricing standards provisions.
The tax commission is authorized to make rules and regulations for the joint administration of the tax regulations under New York State Tax Laws, along with joint reporting of information, including articles, returns, forms, books, and records necessary to further the commission’s purpose.
Chain stores (anyone owning or maintaining 15 or more retail outlets in New York State or vending machine operators operating at least 15 separate vending machine outlets) must register with the tax commission.
Article 28: Sales and Compensating Use Taxes
When procuring tax stamps, agents prepay the taxes associated with the tax stamps that must be affixed to cigarette products.
Article 37: Crimes and Other Offenses, Seizures and Forfeitures
It is a felony to willfully attempt to evade New York cigarette and tobacco product tax laws repeatedly or involving large volumes.
It is also a crime to possess, transport, or attempt to sell in large volumes or multiple times cigarettes lacking the necessary tax stamp or using counterfeit tax stamps. The crime may range from a misdemeanor for first-time offenders to a felony for repeat offenders or those who sell more than 10,000 cigarettes.
Anyone who knowingly and willfully produces counterfeit tax stamps shall have committed a felony. Counterfeiting tax stamps may include a broad range of conduct, including making, altering, purchasing, or tendering as true any counterfeit stamps. A person may also be committing a felony if she knowingly and willfully purchased or received devices used to produce counterfeit stamps.
Dealers who knowingly move, possess, or otherwise control cigarettes or tobacco products without having paid the appropriate tax and without the tax commission’s permission shall have committed a misdemeanor. The conviction will be upgraded to a felony on all future violations if the individual has previously violated this provision twice, regardless of the amount of tobacco products involved in the future violation.
Furthermore, retail dealers or vending machine operators conducting business without an authentic registration certificate (as required under Article 20, § 480-a) or who are found to have fraudulently made, altered, or counterfeited such registration certificate shall have committed a misdemeanor.
Anyone not appointed as a tobacco products distributor by the tax commission (as required under Article 20) who imports into New York State more than 50 cigars or 100 pounds of tobacco shall be guilty of a misdemeanor. A misdemeanor is punishable by a fine of no more than $5,000 or thirty days imprisonment. The conviction will be upgraded to a felony on all future violations if the individual has previously violated this provision twice, regardless of the amount of tobacco products involved in the future violation.
A police officer may seize any cigarettes—and the machines used to sell them—found to be in violation of New York Tax Law or New York Administrative Code. Likewise, a police officer may seize any tobacco products (in excess of 500 cigars or 10 pounds of tobacco) discovered and imported into the State through an unauthorized distributor. The property seized by the officer will be turned over to the tax commission (except for any money found in the machines used to sell cigarettes or tobacco products) and forfeited to New York State.
The seized property can be destroyed or sold by the tax commission. The tax commission may allow the owner to recover the seized cigarettes or tobacco products provided that the owner pays the total tax due, plus any penalties, interest accrued on the outstanding tax liability, and administrative costs incurred by the State. The seizure and subsequent sale of cigarettes or tobacco products does not relieve the owner from being further fined or imprisoned under the provisions of applicable New York Tax Laws.
Other Tobacco-Related Laws:
Prohibition of tobacco use on school grounds
New York Education Law § 409 prohibits the use of tobacco on school grounds. The law defines school grounds as “any building, structure and surrounding outdoor grounds contained within a public or private pre-school, nursery school, elementary or secondary school’s legally defined property boundaries as registered in a county clerk’s office.” Although this law overlaps with New York’s Clean Indoor Air Act, which prohibits smoking in places of employment, there is one important difference. New York Education Law § 409 prohibits all tobacco use – cigarettes, smokeless tobacco, and other forms of tobacco – while the Clean Indoor Air Act only prohibits smoking. This law does not contain a provision identifying how the law will be enforced.
Health education regarding tobacco use
New York Education Law § 804 requires all schools to include instruction discouraging the use of tobacco products, as well as alcohol and other drugs, as part of the health education curriculum. Under the law, instruction regarding the use of tobacco shall be included in the curriculum at elementary schools. At the junior high and senior high school grade levels, education regarding tobacco use must be included as part of a health education course. Once students reach the secondary school level, they are required to demonstrate their knowledge regarding tobacco, alcohol and other drugs through a test, graded project, or any other method school authorities determine is appropriate. The New York State Education Commissioner may stipulate that it is necessary to provide tobacco related health education if the Commissioner decides it is “necessary and desirable for the welfare of pupils and the community.”
Bus drivers prohibited from smoking while driving
New York Education Law § 3624 prohibits bus drivers from smoking while transporting students. This law overlaps with New York’s Clean Indoor Air Act (CIAA) which prohibits smoking in any school vehicle used to transport students and employees. However, while the CIAA aims to reduce second hand smoke, this law is intended to ensure passenger safety. Under New York Education Law § 3624, the Commissioner of Education is authorized to regulate bus driver qualifications, and the law requires the Commissioner to prohibit “smoking, eating and drinking and any and all other acts or conduct which would otherwise impair the safe operation of such transportation facilities while actually being used for the transport of pupils.”
Mandatory continuing education for dentists
Dentists in New York must be licensed through the Department of Education and, every three years, dentists must register with the department. Dentists in the state of New York must meet the State’s required continuing education requirements. If the requirements are not met, they will be prohibited from practicing until they have satisfied the requirement and obtain a registration or condition registration certificate. Sixty hours of continuing education are required for each three year registration period. This law mandates that a dentist complete, “on a one time basis,” at least two hours of continuing education related to the effects of tobacco use on oral health as part of the sixty hour continuing education requirement.
Governor authorized to prohibit smoking in forests
Environmental Conservation Law § 9-1101 permits the Governor of New York, by proclamation, to prohibit smoking in forests, woodlands, and other open lands when there is a danger of a forest fire. The no smoking proclamation is effective twenty four hours after the Governor gives the proclamation and remains in effect until the Governor rescinds it. Under the law, the Governor’s proclamation may be given in whatever manner he or she chooses.
Crime to sell tobacco to minors
Under New York State Penal Law a person will be guilty of unlawfully dealing with a child in the second degree if “[h]e sells or causes to be sold tobacco in any form to a child less than eighteen years old.” This crime is a class B misdemeanor. Those convicted of a class B misdemeanor face a definite prison sentence, set by the court, of up to three months.
Tobacco regulations for prison inmates
Under the Institutional Rules of Conduct, prison inmates are only allowed to possess the amount of tobacco products that the facility authorizes. Inmates are not allowed to carry more than two packages of cigarettes with them, except when bringing tobacco products from the commissary to the housing unit. Smoking at the prison is only permitted outside and in specified areas. Inmates that violate these rules may be disciplined.
Smoking restricted on PATH property
The Port Authority of New York and New Jersey restricts smoking in designated areas on its property. The Port Authority is responsible for the maintenance and development of transportation facilities that include airports, marine terminals and ports, the Port Authority Trans-Hudson corporation (PATH) rail transit system, tunnels and bridges, bus terminals, and the World Trade Center. Under New York law, smoking is prohibited on Port Authority property “in or about any area, building or appurtenance of an air terminal . . . or in or upon any area bulkhead, dock, pier, wharf, warehouse, building, structure or shed of a marine terminal . . . where smoking has been prohibited by the port authority and where appropriate signs to that effect have been posted[.]”Also, the law prohibits smoking on the deck of a ship and other kinds of floating vessels and equipment if it is affixed to a “dock, wharf, pier or to a vessel made fast thereto[.]” Violators of the law risk a fine of up to fifty dollars and/or imprisonment of up to thirty days for a first offense, a fine between twenty-five and one hundred dollars and/or imprisonment for up to sixty days for a second offense, and a fine between fifty and two hundred dollars and or imprisonment for up to sixty days for a third offense.
Smoking prohibited in Hudson tubes
The Port Authority of New York and New Jersey rules and regulations prohibit smoking “on or in the Hudson tubes extensions.” The Hudson tubes are operated by the Port Authority Trans-Hudson corporation (PATH), a subsidiary of the Port Authority of New York and New Jersey. PATH is a heavy rail rapid transit system that serves as the primary transit link between Manhattan and New Jersey. Smoking is prohibited in PATH operated buildings and train cars and in other areas where PATH posts signage prohibiting smoking. Violators of the no-smoking regulation risk a fine of up to fifty dollars and/or imprisonment of up to thirty days for their first conviction, a fine between twenty-five and one hundred dollars and/or imprisonment for up to sixty days for a second violation, and a fine between fifty and two hundred dollars and/or up to sixty days.
Smoking Prohibited on Staten Island Rapid Transit
Under the Rules and Regulations Governing the Conduct and Safety of the Public in the Use of the Facilities of the Staten Island Rapid Transit Operating Authority § 1040.5, no one inside a train terminal, a train station, or on a train may “burn a lighted cigarette, cigar, pipe or any other matter or substance which contains tobacco or any tobacco substitute[.]” Those in violation could be ejected from the facility or the train and could all receive a summons. Furthermore, police officers have the authority to issue a ticket to a violator and to eject the violator from the facility or train. Each violation of the regulation is punishable with a fine up to fifty dollars and/or imprisonment for up to thirty days.
Smoking Prohibited on the MTA Long Island Bus
The Rules and Regulations Governing the Conduct and Safety of the Public in the Use of the Facilities of the Metropolitan Suburban Bus Authority § 1045.5 prohibits individuals from burning “a lighted cigarette, cigar, pipe or any other matter or substance which contains tobacco or any tobacco substitute in any indoor area within the transit center or on a bus[.]”Those in violation may receive an appearance ticket and/or could be ejected from the facility or the bus. Furthermore, police officers have the authority to issue a ticket to a violator and to eject the violator from the facility or the bus. Each violation of the regulation is punishable with a fine up to fifty dollars and/or imprisonment for up to thirty days.
Smoking prohibited at the NYC Transit Authority
The Rules and Regulations Governing the Conduct and Safety of the Public in the Use of the Facilities of New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority §1050.7 prohibit individuals from smoking or carrying “an open flame or lighted match, cigar, cigarette, pipe or torch[.]” Those in violation of this law may face criminal prosecution in New York City. A City of New York criminal court may impose a fine up to twenty five dollars and/or imprisonment up to ten days. The transit adjudication bureau may also impose a civil penalty not more than one hundred dollars per violation, and not more than fifty dollars if the alleged violator fails “to make a timely response to or appearance in connection with a notice violation or order issued by the authority in such proceeding[.]” New York City Police officers or others designated by the president of the Metropolitan Transportation Authority have the authority to issue notices of violation for any violation of this rule.
Medicaid is a federal program created under the Social Security Act and managed by individual states to provide medical care to families and individuals “whose income and resources are insufficient to meet the costs of necessary medical services.” Under federal law, financial resources are made available each fiscal year to enable each state to provide state Medicaid plans for medical assistance. The Office of the U.S. Surgeon General recommends that state Medicaid plans cover smoking cessation products. The New York Medicaid program covers some medications used to treat individuals who are trying to quit using tobacco products. Specifically, the program covers NRT Gum, NRT Patch, NRT Nasal Spray, NRT Inhaler, Varenicline (Chantix), Bupropion (Zyban), as well as individual counseling for all Medicaid recipients. Medications are not available for more than ninety days per course of treatment and two attempts to quit using tobacco each year. Depending on the health plan, individuals may be required to make co-payments for the treatment.
NYS Employee Health Plan Coverage
Employees of the State of New York may be covered under the New York State Health Insurance Program (NYSHIP). Depending on the health plan, NYSHIP covers the following treatment to individuals trying to quit using tobacco products: NRT Gum, NRT Patch, NRT Nasal Spray, NRT Lozenge, NRT Inhaler, Varenicline (Chantix), Bupropion (Zyban), group, individual, phone and online counseling.
New York City Smoke Free Parks and Beaches
On May 23, 2011, New York City’s ban outdoor smoking ban went into effect. The law, which was passed by the New York City Council and approved by Mayor Bloomberg in February 2011, prohibits smoking in the city’s 1,700 parks and fourteen miles of public beaches. Smoking is no longer allowed in Central Park, on the Coney Island boardwalk, or within any of the 29,000 acres of parkland the city parks department maintains. The law also applies to pedestrian malls and plazas such as those in Times Square. The Department of Parks and Recreation will be responsible for enforcing the law and violators may be subject to fines of $50.
New York’s state code is available here. (Click on “PBH” for the Public Health Code.)