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Applying for a Waiver of New York State's Clean Indoor Air Act

  1. Why are some things that were legal under the City's Smoke-Free Air Act (SFAA) no longer legal under the New York State Clean Indoor Air Act (CIAA)?
  2. The New York State CIAA became effective on July 24, 2003 - about four months after the City's law took effect. The State law is more restrictive than the City's law in certain circumstances, and thus eliminates several of the exceptions once allowable under the City SFAA. However, the following types of establishments may be allowed to permit smoking if they are found by the Department of Health and Mental Hygiene (the Department) to qualify for an exemption of the SFAA and/or meet the conditions for waiver of the CIAA, as described below:

    • Owner operated bars requesting a waiver may apply for an SFAA registration and a CIAA waiver;
    • Bars with separate smoking rooms that were built prior to March 26, 2003 must submit architectural or engineering plans with the Department and apply for a CIAA waiver. These rooms must:
      • Have separate ventilation systems that exhaust air to an outdoor area at least 25 feet away from outdoor dining areas, working windows, doors, and heating and air conditioning vents;
      • Maintain continuous negative pressure to prevent the flow of smoke into other parts of the establishment; and
      • Not permit any employee to enter while it is in use;
    • Entities holding tobacco promotion public events must notify the Department in advance and are limited to two events per facility per year, but may apply for a CIAA waiver for up to five events per facility per year;
    • Hospitals with inpatient psychiatric services may apply for a CIAA waiver for a separate smoking room to accommodate patients of the psychiatric service only;
    • Tobacco businesses may apply for a CIAA waiver to permit smoking on their premises for the purpose of testing their products.

    Information on the criteria for exemptions, waivers, and registrations, and application forms for them, as well as the text of the SFAA and the Department's regulations, may be found on the Department's website at http://www.nyc.gov/html/doh/html/environmental/smoke-free-act.html.

  3. How do I qualify for a waiver of the State law?
  4. Before applying for a waiver under the CIAA, your establishment must first satisfy the conditions that would have allowed an establishment to be exempt from the City law. For example, if yours is an owner operated bar as defined in the SFAA in Section 17-502(gg), and you want to permit smoking in your establishment, you must apply to be recognized as an owner operated bar by the Department. Your establishment must also be a "bar" as defined in the SFAA at Section 17-502(b)). Click on http://www.nyc.gov/html/doh/html/environmental/smoke-waiver.html (under "Related Applications") for more information on how to apply and the documentation needed to qualify.

    Second, you must show that a waiver is necessary because compliance with the State law has caused your business "undue financial hardship", or that other factors exist that make it unreasonable for you to comply with the law. You must be prepared to submit detailed information in support of your claim.

  5. What do "undue financial hardship" and "factors which make it unreasonable to comply with the law" mean?
  6. The Department will evaluate each waiver application on a case-by-case basis. However, you should be aware that, at a minimum, if you claim undue financial hardship, you will have to submit documentation to support the claim, including but not limited to quarterly income and expense data for the 12 fiscal quarters immediately preceding your application, as well as a breakdown of sales receipts and expenses. If you have experienced a loss of business, you should be able to demonstrate that it has been caused solely by the prohibition of smoking, and that the loss is not attributable to your actions or other conditions that may have affected businesses in your area, such as competing business, or seasonal or other business cycles.

    If you claim that factors exist which render compliance unreasonable, you must detail these factors and show why you cannot reasonably comply with the law, and how those factors uniquely affect your establishment.

  7. How do I apply for a waiver?
  8. Business owners in New York City who believe they may qualify for a CIAA waiver can apply for one with the Department, which will use the criteria in the State law to determine whether the waiver should be granted. If applicable, an application for an exemption required by the City SFAA must accompany all applications for a waiver. Send your application to:

    Assistant Commissioner
    Bureau of Food Safety and Community Sanitation
    NYC Dept. of Health & Mental Hygiene
    253 Broadway, 13th floor, CN59A
    New York, New York 10007
  9. May I allow smoking in my facility while I wait for a decision on my waiver request?
  10. No. Smoking is not permitted in your facility unless you have been granted a waiver. You will be subject to fines for any smoking violations observed during inspections made prior to the granting of a waiver.

  11. How long will it take to process my request for a waiver?
  12. Each application for a waiver is carefully reviewed by the DOHMH's Bureau of Food Safety and Community Sanitation. It may take 45 days or more to provide you with a response.

  13. If my waiver request is denied, may I appeal?
  14. Yes, you may appeal the decision denying your request for a waiver of the CIAA to the State Health Department within 30 days of the date of our decision. Because there is no waiver provision in the City's SFAA, the Department's decision on applications for exemptions and registrations is final and cannot be appealed to the State.

    You may send your appeal letter to:

    Dr. Antonia Novello, Commissioner
    New York State Department of Health
    Corning Tower, Empire State Plaza
    Albany, New York 12237

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