Is it legal for libraries to ban smoking on all of their owned property rather than 100 feet from entrances?
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 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. “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.
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,” 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.
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!
 Here’s to you, Saratoga Public Library!
 As but one example, the Buffalo and Erie County Public Library’s Central Library has a great new “Reading Garden” in downtown Buffalo.
 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.
 My words, not Megan’s.
 I know they have enough on their plate already, but this might be something a library system can help with.