On July 15, Governor Kathy Hochul signed legislation (Senate Bill S4142) that restricts smoking in certain outdoor areas.  The Public Health Law Center has received several questions about this law.  This document is intended to provide a summary of the law and answer common questions.

Where is smoking restricted under this law?

The law prohibits smoking in “any public park,” and the term “park” is defined to include “public parks, beaches, pools, boardwalks, marinas, playgrounds, recreation centers, and group camps.”  Smoking is also prohibited in “equipment, buildings and facilities” in any of those areas that are under the control of “any state or local government.”  Consequently, the smoke-free provisions apply to both state-owned parks, as well as those managed by local governments.

Does the law restrict smoking in public golf courses?

The answer to this question is not completely clear, but there are authorities suggesting the answer could be yes.  Beyond the circular reference to a “park” including a “public park,” the law includes no definition of “public park.”  Therefore, it is not clear from the law itself whether it applies to public golf courses and other publicly owned outdoor areas that are not specifically listed. Rather, the answer would likely depend on whether an area could be considered a “public park.”  If a public golf course is located within an area clearly identified as a park, the answer would seem to be yes.

There are also authorities from New York suggesting that a public golf course would constitute a “public park.”  For example, a 1984 opinion of the New York Attorney General interpreting a statute requiring certain lands to be used for “public park and related purposes” stated that “use of land as a golf course constitutes a ‘recreational purpose.’”  While this opinion is not a direct precedent for the interpretation of Senate Bill S4142, it could be considered persuasive in finding that the law applies to public golf courses.

Further, a relevant dictionary definition of “park” is “a piece of ground in or near a city or town kept for ornament and recreation [or] an area maintained in its natural state as a public property.”  Although a golf course is not “maintained in its natural state,” it is certainly “kept ... for recreation.”  This could be another argument suggesting that Senate Bill S4142 applies to public golf courses.

Finally, some New York jurisdictions – New York City, for example – already restrict smoking on public golf courses, so there is a precedent for doing so.

In which outdoor areas is smoking not prohibited by state law?

In addition to areas not specifically listed in the law, the law contains some exceptions.  The law does not apply to Adirondack Park or Catskill Park.  It also does not apply to the following areas:

  • the sidewalks immediately adjoining parks, squares and public places;
  • any pedestrian route through any park strip, median or mall that is adjacent to vehicular traffic;
  • parking lots or roadways;
  • theatrical productions; and
  • any portion of a park that is not used for park purposes, except when smoking has been specifically prohibited in a state park or portion thereof by the office of parks, recreation and historic preservation.

However, local units of government retain the ability to adopt stronger regulations that would restrict smoking in additional outdoor areas.

Does the law restrict the smoking of cannabis in specified outdoor areas?

Yes. The definition of “smoking” in the Public Health Law includes “the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco or cannabis.”

Does the law restrict vaping in specified outdoor areas?

No. The law restricts only “smoking,” which is defined separately than “vaping” in New York law.  However, local units of government retain the ability to adopt stronger regulations that would restrict vaping / e-cigarette use in outdoor areas.

How is the law enforced?

If a person violates the law by smoking outdoors in a restricted area, they are subject to “a civil penalty of fifty dollars for each violation.”

Does New York law require signs to be posted in outdoor areas where smoking is restricted?

Yes. Existing law requires the posting of signs in areas where state law restricts smoking.

How does the law interact with existing laws?

New York Public Health Law Section 1399-O-1 prohibits smoking and vaping in playgrounds between sunrise and sunset when one or more person under the age of twelve is present. Senate Bill S4142 did not change any provisions of Section 1399-O-1, so they are both in effect.  This means that both smoking and vaping are prohibited on playgrounds during daylight hours when children are present, and smoking is prohibited everywhere in parks all the time, subject to the exceptions mentioned previously.

When does the law take effect?

The law takes effect “on the ninetieth day after it shall have become a law.”  It was signed on July 15.  Ninety days later would be October 13.

Can local governments adopt stronger ordinances restricting outdoor smoking and vaping?

Yes. New York Public Health Law Section 1399-R(3) states that “Smoking and vaping may not be permitted where prohibited by any other law, rule, or regulation of any state agency or any political subdivision of the state. Nothing herein shall be construed to restrict the power of any county, city, town, or village to adopt and enforce additional local law, ordinances, or regulations which comply with at least the minimum applicable standards set forth in this article.”  In addition, Senate Bill S4142 states that “This subdivision shall not limit the applicability of any other laws to” places explicitly not covered by the new state law, such as sidewalks adjacent to parks, parking lots, and theatrical productions. This makes it clear that cities and counties retain the ability to further restrict smoking in those areas.

 

This document was prepared by the Public Health Law Center, a nonprofit organization that provides information and legal technical assistance on issues related to public health. The Center does not provide legal representation or advice. The information in this document should not be considered legal advice.


By Mike Freiberg, Lead Senior Staff Attorney for New York Technical Assistance, Commercial Tobacco
July 21, 2022