2006 New York Code - Violations And Penalties.

 
    § 17-508 Violations and penalties.
    a.  It shall be unlawful for any person who owns, manages, operates or
  otherwise controls the use of premises in which smoking is prohibited or
  restricted pursuant to this chapter, or the designated agent thereof, to
  (i) provide a room designated for smoking, including,  but  not  limited
  to,  a  separate smoking room or an enclosed room, which fails to comply
  with the  provisions  of  this  chapter;  provided,  however,  that  the
  obligations  of  an  owner or building manager of a building (where such
  owner or building manager of a building  in  which  a  public  place  is
  located  is  not  the  operator  or  employer of such public place) with
  respect to such a room shall  be  limited  to  work  authorized  by  any
  permits  necessary  to perform construction obtained by the owner or his
  or her agent; (ii) fail to post the signs required  by  section  17-506;
  (iii)  fail  to  remove ashtrays as required by subdivision d of section
  17-506; or (iv) fail  to  make  a  good  faith  effort  to  comply  with
  subdivisions  c,  d  and  e  of  section  17-507. In actions brought for
  violations of this  subdivision,  the  following  shall  be  affirmative
  defenses: (i) that during the relevant time period actual control of the
  premises  was  not  exercised  by  the  respondent or a person under the
  control of the respondent, but rather by  a  lessee,  sublessee  or  any
  other  person;  provided,  however,  that  after receiving the notice of
  violation, the respondent submits to the department within five business
  days, by certified mail, a sworn affidavit and other such proof  as  may
  be necessary, indicating that he or she has not exercised actual control
  during  the relevant time period; (ii) that a person smoking in any area
  where smoking is prohibited pursuant to section 17-503 was informed by a
  person who owns, manages, operates or otherwise controls the use of such
  premises, or the designated agent thereof, that such person  smoking  is
  in  violation  of this local law and that such person who owns, manages,
  operates or otherwise controls the use of  such  premises  has  complied
  with  all applicable provisions of this chapter during the relevant time
  period; provided, however, that after receiving notice of violation, the
  respondent submits to the  department  within  five  business  days,  by
  certified  mail,  a  sworn  affidavit  and  other  such  proof as may be
  necessary, indicating that respondent informed the person smoking in any
  area where smoking is prohibited pursuant to section  17-503  that  such
  person  was  in  violation  of  this  local  law and that respondent has
  complied with all applicable  provisions  of  this  chapter  during  the
  relevant  time  period; or (iii) that a person smoking in any restricted
  common indoor area where  smoking  is  prohibited  pursuant  to  section
  17-503 was not informed by the owner or building manager of the premises
  (where  such  owner  or building manager of a building in which a public
  place or a place of  employment  is  located  is  not  the  operator  or
  employer of such public place or place of employment) or by the operator
  of  a  multiple dwelling containing ten or more dwelling units that such
  person smoking is in violation of this local  law  because  such  owner,
  building  manager  or  operator  did not have a designated agent on duty
  when such person was smoking and that such  owner  or  building  manager
  has,  where  applicable,  complied with the mailing of a notice required
  pursuant to subdivision e of section  17-507;  provided,  however,  that
  after  receiving  notice  of  violation,  the  respondent submits to the
  department within  five  business  days,  by  certified  mail,  a  sworn
  affidavit  and  other  such proof as may be necessary, indicating that a
  person smoking in any restricted common indoor  area  where  smoking  is
  prohibited pursuant to section 17-503 was not informed by the respondent
  that  such  person smoking is in violation of this local law because the
  respondent did not have a designated agent on duty when such person  was


  smoking and that the respondent has, where applicable, mailed the notice
  required pursuant to subdivision e of section 17-507.
    b.  It  shall be unlawful for an employer whose place of employment is
  subject to regulation under section 17-504 to fail to  comply  with  the
  provisions  of  that  section,  including,  but  not  limited  to, those
  provisions requiring the  adoption,  implementation,  dissemination  and
  maintenance   of   a  written  smoking  policy  which  conforms  to  the
  requirements of subdivision e of section 17-504, or to fail  to  make  a
  good  faith  effort  to  comply with subdivision c of section 17-507. In
  actions brought for violations of  this  subdivision,  it  shall  be  an
  affirmative defense that the employer (i) has made good faith efforts to
  insure that employees comply with the provisions of such written smoking
  policy  and  (ii)  has  complied  with all applicable provisions of this
  chapter.
    d. It shall be unlawful for any person to  smoke  in  any  area  where
  smoking is prohibited under section 17-503 and section 17-504.
    e.  Every  person  who  violates  subdivisions  a or b of this section
  shall, for a first violation thereof, be liable for a civil  penalty  of
  not  less  than  two hundred dollars nor more than four hundred dollars;
  for a second violation, both of which were committed within a period  of
  twelve  months,  be  liable  for  a  civil penalty of not less than five
  hundred dollars nor more than one thousand dollars; and for a  third  or
  subsequent  violation,  all  of  which were committed within a period of
  twelve months, be liable for a  civil  penalty  of  not  less  than  one
  thousand  dollars  nor  more than two thousand dollars. Every person who
  violates subdivision d of this section  shall  be  liable  for  a  civil
  penalty of one hundred dollars for each violation.
    f.  A  proceeding  to recover any civil penalty authorized pursuant to
  the provisions of subdivision e of this section shall  be  commenced  by
  the  service  of  a notice of violation which shall be returnable to the
  administrative tribunal established by the board of health. The board of
  health's administrative tribunal shall have  the  power  to  impose  the
  civil penalties prescribed by subdivision e of this section.
    g.  Whenever  a  notice  of  violation  of  subdivision a or b of this
  section is served by a person with power to enforce  the  provisions  of
  this  chapter  pursuant  to subdivision a of section 17-507, such notice
  shall, where applicable, include an order which requires the  respondent
  to  correct  the  condition  constituting  the  violation  and to file a
  certification with the department that the condition has been corrected.
  Such order shall require that the condition be corrected within ten days
  from the date that the order is issued and  that  certification  of  the
  correction of the condition be filed with the department in a manner and
  form  and  within  such  further  period  of  time  to  be determined in
  accordance with rules and regulations promulgated by the commissioner.
    h. If the administrative tribunal established by the board  of  health
  finds,  upon  good  cause  shown, that the respondent cannot correct the
  violation specified in subdivision g of this section,  it  may  postpone
  the period for compliance with such order upon such terms and conditions
  and  for  such  period  of  time  as  shall  be  appropriate  under  the
  circumstances.
    i. In any proceeding before the administrative tribunal established by
  the board of health, if the tribunal finds that the department or  other
  agency issuing the notice of violation has failed to prove the violation
  charged,  it  shall  notify  the  department or other agency issuing the
  notice of violation, and the order requiring the respondent  to  correct
  the condition constituting the violation shall be deemed to be revoked.
    j.  When  the  owner  or  operator  of  a  bar has been found to be in
  violation of subparagraph c of paragraph  twenty  of  subdivision  a  of


  section  17-503  on  two  or  more occasions on the basis of one or more
  employees being in a separate smoking room at times not permitted  under
  this  chapter,  the  tribunal  shall  revoke  the right of such owner or
  operator to maintain a separate smoking room in such bar.
    k.  The penalties provided by this section shall be in addition to any
  other penalty imposed by  any  other  provision  of  law  or  regulation
  thereunder.