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.

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