Permitting of Non-Tobacco Hookah Establishments (Amendment to Chapters 10 and 13 of Title 24 of the RCNY)

Adopted Rules: Closed to Comments

Agency:
Effective Date: 
Thursday, May 10, 2018
Download Copy of Adopted Rule (.pdf): 
 
 

Statement of Basis and Purpose

Introduction

Smoking is a leading cause of preventable premature death in New York City, increasing the risks of lung cancer, heart disease, and many other health hazards. To counter this threat, in 1988 the City enacted the Smoke-Free Air Act (SFAA), which has been amended several times.  The 2002 amendments restricted tobacco smoking in various indoor and outdoor public places. Despite the substantial progress in reducing both environmental smoke exposure and smoking, hookah smoking has been increasing in popularity as more establishments serve hookah, and its prevalence has been increasing, in particular, among the City’s youth.

Hookah or water pipe smoking involves heating “shisha”, which is typically composed of tobacco and/or other flavored or unflavored herbal substances, over burning charcoal, to create smoke that travels through a pipe immersed in cooling water, and that is inhaled by the smoker through a mouthpiece.  Regardless of whether the shisha contains tobacco, hookah smoking poses significant health risks to smokers and nonsmokers, including employees, at establishments that serve hookah. Hookah smoking produces emissions from burning both charcoal and shisha. Burning charcoal creates health hazards by emitting carbon monoxide, fine particulate matter, and various toxicants. Burning shisha has also been shown to emit multiple harmful substances regardless of its tobacco content, including carbon monoxide, polycyclic aromatic hydrocarbons, fine particulate matter, tar, and volatile aldehydes.

While risks associated with non-tobacco hookah smoking are established, air quality in the City’s hookah establishments is further compromised by evidence that many of them have been found to be serving shisha that contains tobacco. Tobacco-containing shisha has been shown to emit phenols, nicotine, and NNAL, a tobacco-specific nitrosamine. Therefore, patrons of hookah establishments may be smoking tobacco unwittingly, in addition to inhaling the harmful substances emitted by charcoal and shisha. To address these concerns, Local Law 187 of 2017 amended the SFAA to ban the smoking of non-tobacco shisha except at existing establishments that require a permit from the Department.  Local Law 190 of 2017 also requires establishments that obtain a permit for serving non-tobacco shisha to post signage developed by the Department that warns of its risks. These proposed amendments implement these laws.

Furthermore, given the health risks posed by non-tobacco smoking, Local Law 191 increases the minimum age for legal sales to 21 years of age for non-tobacco smoking products, including shisha that does not contain tobacco, pipes, water pipes, rolling papers, and herbal cigarettes. 

No Changes Made in Response to Comments Received by the Department

Approximately 20 people commented on the proposed rule at the public hearing held on March 14, 2018. Nearly all of the comments related to the requirement that an establishment generate at least 50% of its annual gross sales from the on-site sale of non-tobacco smoking products in order to obtain or renew a permit to operate as a non-tobacco hookah establishment. However, Local Law 187 already added this requirement to the Administrative Code:

To obtain and renew a permit issued pursuant to this section for a non-tobacco hookah establishment, a person shall demonstrate that: 1. Such non-tobacco hookah establishment generated 50 percent or more of its total annual gross sales during the preceding calendar from the on-site sale of non-tobacco smoking products. . . .

See Administrative Code § 17-513.5(g)(1). The Department does not have the authority to eliminate this requirement.  Thus, no changes are being made to the definition of a non-tobacco hookah establishment in subdivision (bb) of section 10-01 or to the requirement in section 10-18 that a non-tobacco hookah establishment generated 50% or more of its total annual gross sales during the preceding calendar year from the on-site sale of non-tobacco smoking products in order to obtain a permit.

The Department has made two additional changes to the proposed rule to clarify their application.

Section 10-21(c) has been amended to provide that the required warning signs, which will be provided by the Department and will vary in content, must contain two of four possible warning statements.

Section 10-23(b) has been amended to provide that a person is responsible for expert costs incurred by the Department only in the event that the Department proves at a hearing that such person violated subdivision (a) of section 17-508 of the New York City Administrative Code or subdivision 1 of section 1399-s of the New York State Public Health Law.    

Statutory Authority

The Department’s authority for these rules is found in section 1043 of the New York City Charter and sections 17-513 and 17-706 of the New York City Administrative Code.

Amendments

The Department amends subdivision (p) of section 10-01 of Title 24 of the Rules of the City of New York, adds paragraphs (aa) through (ee) to section10-01, and adds new sections 10-18 to 10-24. The Department also amends section 13-06 of Title 24 of the Rules of the City of New York.