Smoking is banned in certain indoor and outdoor locations both by the City’s Smoke-Free Air Act (SFAA) and by New York State’s Clean Indoor Air Act (CIAA). These laws are enforced in New York City by the Department. Pursuant to New York State Public Health Law §1399-u, the Department has the discretion to waive in a specific instance any provision of the CIAA if satisfied that its application will cause undue hardship or that there are other factors that make compliance with the provision unreasonable.
The Department enacted section 24 RCNY §10-15 in 2004 setting forth how the Department would consider requests for such waivers. The rule allows any entity where smoking is permitted by the CIAA, but allowed by the SFAA, to request a waiver. Requests based on financial hardship must include financial records and demonstrate financial losses attributable to the State restriction. If claiming that compliance with the State provision is otherwise unreasonable, an applicant must clearly demonstrate the existence of factors that make this so. The rule also imposes a fee for an application and limits the term of a waiver to two years.
The stated basis and purpose of §10-15 was to provide a mechanism for harmonizing enforcement of the CIAA, which had just taken effect, with the restrictions on smoking that were already in place in New York City under the SFAA. In fact, the CIAA and SFAA are largely harmonious and there are no waivers currently in place. While one was granted to a tobacco company operating a product testing room in 2005, and renewed thereafter until 2012, no other entity has even requested a waiver. The Department does not foresee any situation in the future where it would waive a provision of the CIAA and thus is proposing to repeal §10-15 as unnecessary.
Working with the City’s rulemaking agencies, the Law Department, and OMB, the Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that will be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and compliance. This proposed rule repeal was identified as one that should be repealed through this initiative.
The Department’s authority for this repeal is found in section 1043 of the New York City Charter. Because the Department is not required to provide waivers under the CIAA, there is no reason to have public testimony on whether this rule should be repealed.
City Record, March 24, 2004. RCNY Volume 8, Statements of Basis and Purpose at page 492.