RAQs: Recently Asked Questions

Topic: Libraries Banning Smoking - 11/25/2019
Is it legal for libraries to ban smoking on all of their owned property rather than 100 feet from ...
Posted: Monday, November 25, 2019 Permalink

MEMBER QUESTION

Is it legal for libraries to ban smoking on all of their owned property rather than 100 feet from entrances?

WNYLRC ATTORNEY'S RESPONSE

Not only is it legal, but it is required by law.

When the new provisions of New York’s Public Health § 1399-o first went into effect June 19, 2019, “Ask the Lawyer” got a question about enforcement, so we wrote a guide for implementation

While hopefully the “guide” has been useful (it warmed my heart to see one library[1] getting media coverage for putting up signs with wording I suggested), it might be easy to miss the actual heft of this law as we think about the details of implementation.

So here, without too much distracting commentary, is the text of the new law:

Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property. [emphasis added]

Seems pretty straightforward to me…“outdoor areas” as in: the outside (with an exception for nearby residential properties).

Despite this straightforward language, since I wrote the “guide,” we have gotten some questions from members stating that their local health department claims they will only enforce compliance within 100 feet of exits and entrances.

This feedback really concerned me.  First, it is contrary to the plain language of the law.  Second (but really first), libraries are finding new ways to reach out to the public every day; this includes outdoor programming.[2]  “Outdoor areas” of the library serve the public, too.

So, inspired by this latest question, and the feedback we’ve received, I called my local Erie County Department of Health, and reached  Rob Tyler, who works on smoking enforcement. 

Rob and I had a nice chat about how sometimes the language in these laws can be open to interpretation, but this seemed pretty clear.  But then he suggested: “You should probably call the State.  They are one ones who can give guidance on the law.”

So, after thanking Rob for his time, I called the General Counsel’s Office at the New York State Department of Health, and was directed to attorney Megan Mutolo.[3]

Megan also agreed with me on the plain language of “outdoor areas.”  That said, she urged me to urge libraries to build a relationship with their county health departments so libraries are ready to enforce the new law together. 

This is good advice from Megan.  Since New York tries to encourage “municipal home rule,”[4] as much as possible is left to local officials from within a particular community.  This means that local health departments can have their own take on the new law…one that you can discuss with them while forming a meaningful alliance.[5]

So, to the “helpful tips” in the “guide,” inspired by this question, I add: Consider making a connection with your local health department, and reviewing the precise language of the new law together.  Many departments, if they have not given the new law a careful review, might overlook the requirement about “outdoor areas.”  But that language is there, and when read in context, is very clear—as is the library’s obligation to enforce this law.

Thanks for your question!

 


[1] Here’s to you, Saratoga Public Library!

[2] As but one example, the Buffalo and Erie County Public Library’s Central Library has a great new “Reading Garden” in downtown Buffalo.

[3] NOTE: I called both these people on a Friday afternoon.  Not only did I get quick answers, but they were friendly, too!  I guess you don’t go into health law unless you really care about people.

[4] My words, not Megan’s.

[5] I know they have enough on their plate already, but this might be something a library system can help with.

 

Tags: Laws, Policy, Smoking or Vaping

Topic: New NYS Smoking Ban - 5/28/2019
The new NYS smoking ban in regards to public libraries states that smoking is banned "within ...
Posted: Tuesday, May 28, 2019 Permalink

MEMBER QUESTION

The new NYS smoking ban in regards to public libraries states that smoking is banned "within 100 ft of all entrances, exits and outdoor areas”. Does that mean all of the library property including the parking lot and grassy areas attached to other grassy areas? e.g. [A nearby business]’s property line abuts our property line a few feet from their building and their staff stand in that area to smoke. On three sides of our property line the 100 feet includes a road and commercial enterprises across the streets.

WNYLRC ATTORNEY'S RESPONSE

This member is thinking ahead!

Starting June 29, 2019, any space within a 100-foot perimeter around a public or association library, including adjacent businesses, is subject to a state-wide smoking ban.  The sole exception is residential properties (inside and out).

Any person or business violating this new ban may be subject to a $2,000 fine.[1]

This new law is part of Section 1339-o of New York’s Public Heath Law.  It reads:

Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property.

This is a powerful new law, and it has many libraries thinking about implementation.

As the member’s question illustrates, complying with, taking advantage of, and rolling out this new law may take some effort—as well as some tact and diplomacy. 

Here are some tips for a graceful transition (and how to not ignite the fuse of nearby, non-residential smokers and their landlords):

First, some new signage can go up, alerting people to the impact of the new law. Per Public Health Law Section 1399-p (“Posting of Signs”), smoking signage should meet the following requirements:

“Smoking” or “No Smoking” signs, or “Vaping” or “No Vaping” signs, or the international “No Smoking” symbol, which consists of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it, shall be prominently posted and properly maintained where smoking and vaping are regulated by this article, by the owner, operator, manager or other person having control of such area.

Signage to assist with compliance should add “…within 100 feet of this boundary.  NY Public Health Law 1399-o.”

Second, it might be helpful to amend or create library’s policy on smoking so it states:

Per Section 1399-o of New York’s Public Health Law, it is forbidden to smoke within 100 feet of library property (except for residential properties).  To promote compliance, the library will maintain signage consistent with Section 1399-p of that law, and will work with impacted neighbors to enforce and encourage compliance with this law.

Third, a simple plan of outreach to “impacted neighbors,” can help your library collaborate on compliance (instead of waiting for a clash of employees or customers).  This is not a legal requirement, but it is the type of law-based, thoughtful, pro-active rollout can forge and maintain healthy neighborhood relations. 

Part of such a “Smoking Ban Rollout Plan” could include a letter such as:

Dear [Non-residential Neighbor within 100 fee of library property]:

As you may know, effective June 19, 2019, New York’s Public Health Law makes it illegal to smoke within 100 feet of a public or association library like the [NAME] Library.  The sole exception to this law is a residential property.

As you can see on the attached map, your property is within 100 feet of the library’s.  Please let us know of any concerns you have about alerting your [employees, customer’s, etc] to the requirements of this new law.  Please also let us know who we may contact it the event of a concern.

Our board and library staff are working to alert everyone and make sure our transition to this new law goes smoothly.  [We are installing new signage, as well.]  If you need to discuss any aspect of this, please contact [name] and [number or email].

Thank you for your consideration!

Sincerely,

Your friends at the [NAME] Library

Any contact with neighbors should bear in mind that under the law, certain facilities (ironically, hospitals and residential health care facilities) are allowed to “designate” a smoking area on otherwise-non-smoking premises (this might be the scenario in the circumstances described by the member).  Further, if a business or person can allege an “undue hardship,” they can request a waiver of a smoking ban under Section 1399-u.[2]  Since you don’t want a confrontation to spur a request for a waiver, “friendly outreach” is a good tone to strive for.

And finally, it is good for your library to consider that enforcing a smoking ban can cause a lot of stress, and use up a lot of director and staff energy.  Think about it: Librarians already have to be on the lookout for illegal porn use, opioid overdoses, and destruction of library property.  Now they have to patrol for neighborhood smoking, too?  That’s a lot of social work for someone who just wants to help the world find information. 

For those moments, in addition to your library policy, a short statement endorsed by the board, for staff can hand out, might be helpful.  Something like:

Consistent with New York’s Public Health Law (Section 1399-0), there is no smoking allowed within 100 feet of the [NAME] library.  Thank you for supporting New York State’s public health initiative, and helping our library honor this law. –The Board of the [NAME] Library

When facing a needy[3] smoker, backup from both the state, the law, AND your board can be a great morale booster.

Libraries should also note: while Section 1339-o of the Public Health Law bars smoking AND vaping in many areas, this new library-specific section (section 6) bars only SMOKING[4] (and yes, under the law, “smoking” and “vaping” are distinguished.[5]  “Smoking” means “the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.”  “Vaping” means “the use of an electronic cigarette.”).  So in addition to the compliance steps outlined above, get some binoculars, so you can be ready for some precise enforcement!

So that’s it.  Libraries needing to check their property line maps to establish their 100-foot perimeter can use their property survey and the county’s tax maps (this is also how you can check for a property’s actual owner, in addition to simply observing and notifying their tenants).

I wish every public and association library in New York smoke-(but not vapor)-free property lines!

 


[1] From the relevant county health department, or, in some places, another designated enforcement official.

[2] Yes, this law uses almost the entire alphabet.

[3] I was a smoker in the 90’s.  I quit around Y2K, but I still remember the feeling of being an addict needing to smoke…it can make you act grumpy to even a very nice librarian.

[4] At some point I will check JSTOR to see if there is hard info as to why vaping within 100 feet of library is somehow better for the public health than smoking. 

[5] The definitions are in Section 1399-n.

 

Tags: Management, Policy, Smoking or Vaping

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The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.