Section 17-502. Definitions

As  used in this chapter, the following terms
  shall be defined as follows:
    a. "Auditorium" means the part of the building where an audience  sits
  including any corridors, hallways or lobbies adjacent thereto.
    b. "Bar" means a business establishment or any portion of a non-profit
  entity,  which  is  devoted  to  the  selling  and  serving of alcoholic
  beverages for consumption by the public, guests, patrons, or members  on
  the premises and in which the serving of food, if served at all, is only
  incidental  to  the  sale  or  consumption  of  such  beverages. For the
  purposes of this chapter, the term "bar": (i) shall include a restaurant
  bar; (ii) shall include any area located in a hotel or motel,  which  is
  devoted   to   the  selling  and  serving  of  alcoholic  beverages  for
  consumption by the public, guests, patrons, or members on  the  premises
  and  in  which the serving of food, if at all, is only incidental to the
  sale or consumption of alcoholic beverages; and (iii)  shall  include  a
  cabaret as defined in section 20-359 of the code which is required to be
  licensed  by  the  department  of  consumer  affairs pursuant to section
  20-360 of the code and in which the serving of food, if at all, is  only
  incidental  to  the  sale or consumption of alcoholic beverages. For the
  purposes of this subdivision, (i) service of food  shall  be  considered
  incidental to the sale or consumption of alcoholic beverages if the food
  service  generates  less  than forty percent of total annual gross sales
  and (ii) any business establishment  or  any  portion  of  a  non-profit
  entity  which  is  devoted  to  the  selling  and  serving  of alcoholic
  beverages for consumption by the public, guests, patrons, or members  on
  the  premises that generates forty percent or more of total annual gross
  sales from the sale of food  for  on-premises  consumption  shall  be  a
  restaurant.
    c.   "Business   establishment"   means   any   sole   proprietorship,
  partnership, association, joint venture,  corporation  or  other  entity
  formed  for  profit-making purposes, including professional corporations
  and  other  entities  where   legal,   medical,   dental,   engineering,
  architectural, financial, counseling, and other professional or consumer
  services are provided.
    d.  "Child day care center" means (i) any public, private or parochial
  child care center, school-age child care program,  day  nursery  school,
  kindergarten,  play school, or other similar school or service, (ii) any
  child care arrangement licensed by the city,  (iii)  any  facility  that
  provides child care services as defined in section four hundred ten-p of
  the  New  York  state  social  services  law and (iv) any child day care
  center as defined in section three hundred ninety of the New York  state
  social  services  law.  Such  definition  applies whether or not care is
  given for compensation and whether or not the child day care  center  is
  located in a private residence.
    e. "Children's institution" means (i) any public, private or parochial
  congregate  institution,  group  residence,  group  home  or other place
  where, for compensation or  otherwise,  seven  or  more  children  under
  twenty-one  years  of age are received for day and night care apart from
  their parents  or  guardians,  (ii)  youth  centers  or  facilities  for
  detention  as  defined  in sections five hundred twenty-seven-A and five
  hundred two of the New York state executive law, (iii) group  homes  for
  children as defined in section three hundred seventy-one of the New York
  state  social  services  law,  (iv)  public institutions for children as
  defined in section three hundred  seventy-one  of  the  New  York  state
  social  services  law  and  (v)  residential  treatment  facilities  for
  children and youth as defined in section 1.03  of  the  New  York  state
  mental hygiene law.

    f.  "Commissioner"  means  the  commissioner  of  the  New  York  City
  department of health and mental hygiene.
    g.  "Department"  means  the  New  York  City department of health and
  mental hygiene.
    h. "Employee" means any person who is  employed  by  any  employer  in
  return  for  the payment of direct or indirect monetary wages or profit,
  or any person who volunteers his or her services to such employer for no
  monetary compensation.
    i. "Employer" means any person, partnership, association,  corporation
  or  non-profit  entity  which  employs  one  or  more persons, including
  agencies of the city of New York, as defined in  section  1-112  of  the
  code, and the council of the city of New York.
    * k.  "Limousine"  means a for-hire vehicle required to be licensed by
  the taxi and limousine commission, designed to  carry  fewer  than  nine
  passengers,  excluding  the  driver,  which is dispatched from a garage,
  maintains a minimum of $500,000/$1,000,000 liability insurance  coverage
  and  in  which  passengers  are  charged fees calculated on the basis of
  garage to garage service.
  * NB There are 2 sub k's
    * k. "Motion picture theater" means any public hall or room  in  which
  motion  pictures  are  displayed,  including  any corridors, hallways or
  lobbies adjacent thereto. For  purposes  of  this  subdivision,  "motion
  picture"  means  a  display  on a screen or other device, of pictures or
  objects in motion or rapidly  changing  scenery,  whether  or  not  such
  display shall be accompanied by a lecture, recitation or music.
  * NB There are 2 sub k's
    l.   "Non-profit   entity"   means   any  corporation,  unincorporated
  association or other association or other entity created for charitable,
  philanthropic, educational, political, social or other similar purposes,
  the net proceeds from the operations  of  which  are  committed  to  the
  promotion  of  the  objects  or  purposes of the organization and not to
  secure private financial gain. A public  agency  is  not  a  "non-profit
  entity" within the meaning of this subdivision.
    m.  "Place  of  employment"  means  any indoor area or portion thereof
  under the control of  an  employer  which  employees  normally  frequent
  during the course of employment and which is not generally accessible to
  the  public, including, but not limited to, private offices, work areas,
  employee lounges and restrooms, conference  and  class  rooms,  employee
  cafeterias,  employee gymnasiums, auditoriums, libraries, storage rooms,
  file rooms, mailrooms,  employee  medical  facilities,  rooms  or  areas
  containing  photocopying  or  other  office  equipment used in common by
  employees, elevators, stairways and hallways. A private residence is not
  a "place of employment" within the meaning of this  subdivision,  except
  that  areas  in  a  private  residence  where a child day care center or
  health care facility is operated during the  times  when  employees  are
  working  in such child day care center or health care facility areas and
  areas in a private residence which constitute common areas of a multiple
  dwelling  containing  ten  or  more  dwelling  units,  are  "places   of
  employment" within the meaning of this subdivision.
    n.  "Playground"  means  an  outdoor  area  open  to  the public where
  children play, which contains play equipment such as  a  sliding  board,
  swing, jungle gym, sandbox, or see-saw, or which is designated as a play
  area.
    p.  "Public  place"  means  any  area  to which individuals other than
  employees are invited or  permitted,  including,  but  not  limited  to,
  banks,  educational  facilities,  health care facilities, child day care
  centers,  children's  institutions,  shopping  malls,  property   owned,
  occupied  or  operated  by  the  city  of New York or an agency thereof,

  public transportation facilities, reception areas, restaurants, catering
  halls, retail stores, theaters, sports arenas and recreational areas and
  waiting rooms. A private residence is not a "public  place"  within  the
  meaning  of  this  subdivision, except that areas in a private residence
  where a child day care center or health care facility is operated during
  the times of operation and areas in a private residence which constitute
  common areas of a multiple dwelling  containing  ten  or  more  dwelling
  units, are "public places" within the meaning of this subdivision.
    q.  "Residential  health care facility" means (i) a facility providing
  therein nursing or other care to  sick,  invalid,  infirm,  disabled  or
  convalescent  persons  in addition to lodging and board service, (ii) an
  inpatient psychiatric facility which provides  individuals  with  active
  treatment  under  the  direction of a physician, and (iii) a residential
  facility providing health related service.
    r.  "Restaurant"  means  any  coffee  shop,  cafeteria,  luncheonette,
  sandwich  stand,  diner, short order cafe, fast food establishment, soda
  fountain, and any other eating or beverage establishment (other  than  a
  bar), including a restaurant located in a hotel or motel, or part of any
  organization,  club, boardinghouse or guest house, which gives or offers
  for sale food or beverages to the public, guests, members,  or  patrons,
  whether  food  or  beverages  are  customarily  consumed  on  or off the
  premises, but not an establishment whose sole purpose is to  serve  food
  or  beverages  to  employees  of  a  common employer or to students of a
  common educational institution.
    s. "Restaurant bar" means a contiguous area (i) in a restaurant,  (ii)
  containing a counter and (iii) which is primarily devoted to the selling
  and  serving  of  alcoholic  beverages for consumption by patrons on the
  premises and in which the serving of food, if served  at  all,  is  only
  incidental  to  the  sale  or consumption of alcoholic beverages in such
  restaurant bar.
    t. "Retail store" means any place  which  in  the  regular  course  of
  business sells or rents goods directly to the public.
    u.  "Retail  tobacco  store" means a retail store devoted primarily to
  the  sale  of  any  tobacco  product,  including  but  not  limited   to
  cigarettes,  cigars,  pipe  tobacco and chewing tobacco, and accessories
  and in which the sale of other products is merely incidental.  The  sale
  of  such  other  products  shall  be considered incidental if such sales
  generate less than fifty percent of the total annual gross sales.
    w. "Separate smoking  room"  means  an  enclosed  room  the  exclusive
  purpose  of  which  is for smoking. No business transactions, including,
  but not limited to, the sale,  including  by  vending  machines,  and/or
  service  of  food, beverages, or any other product, and/or collection of
  any payments, shall be conducted in such room.
    Such room shall (i) be completely  enclosed  on  all  sides  by  solid
  floor-to-ceiling  walls;  (ii)  comply  with  all  applicable  fire  and
  building code requirements, and have a sprinkler system for fire  safety
  (which  may  be  part of a sprinkler system of the premises in which the
  room is located); and (iii) have a separate ventilation  system  whereby
  the  air  from such enclosed room is immediately exhausted to an outdoor
  area (exclusive of any seating area) by an exhaust fan rather than being
  recirculated  inside,  and  which  is  compliant  with  the   additional
  specifications set forth in this subdivision; (iv) be clearly designated
  as  a  separate  smoking room wherein no services are offered. Such room
  may contain furniture. Such room shall not contain  the  sole  means  of
  ingress  and egress to restrooms or any other smoke-free area, and shall
  not constitute the sole indoor waiting area of the premises.  Any  doors
  in  such  room  shall be self-closing, and shall remain closed except to
  the extent necessary to permit ingress and egress  to  such  room.  Such

  room  shall  not  exceed  twenty-five  percent  of  the aggregate square
  footage of the premises, including non-smoking lounges and shall not  in
  any  event  exceed  three  hundred fifty square feet. In calculating the
  square footage of the premises pursuant to this subdivision, all spaces,
  whether  or  not  occupied by furniture or any counter, including public
  dining areas, beverage service areas, the  separate  smoking  room,  and
  lounges   shall  be  included;  provided  however,  that  service  areas
  (including areas behind any  counter)  and  other  areas  to  which  the
  general  public  does  not generally have access (such as storage rooms,
  kitchens,  offices  and  cloakrooms),  restrooms,  telephone  areas  and
  waiting  areas  (other  than waiting areas located in any lounges) shall
  not be included. No employee shall be permitted to enter such  room  for
  the  purposes  of conducting any business transaction, including but not
  limited to the sale or service of food, beverages, or any other product,
  provided, however, that an employee shall be allowed into such  room  to
  provide  busing  or other cleaning services when no smoking has occurred
  for fifteen minutes prior to the  employee  entering  the  room  and  no
  customers  are  present.  Such  room  shall have a ventilation system in
  which the ventilation rate is at least sixty cubic feet per  minute  per
  occupant  based  on  a  maximum  occupancy  of seven individuals per one
  hundred feet of floor space, and the negative air pressure is at a  rate
  such that when measured by a device approved by the department of health
  and  mental  hygiene,  the  pressure  differential  is  at  least  three
  hundredths of an inch of water column relative to the  air  pressure  in
  the  adjacent  room  in which smoking is not permitted. Such ventilation
  system shall discharge air from  the  separate  smoking  room  at  least
  twenty-five  feet  away  from operable windows, doors, air conditioning,
  and any other heating, ventilation and air conditioning intakes.
    x. "Service line" or "waiting area"  means  a  queue,  line  or  other
  formation  of  persons, whether seated or standing, in which one or more
  persons are waiting for service of any kind, whether or not such service
  involves an exchange of consideration.
    y. "Smoking" means inhaling, exhaling, burning or carrying any lighted
  cigar, cigarette, pipe, or any form of lighted object  or  device  which
  contains tobacco.
    z.  "Sports  arena  and  recreational area" means any sports pavilion,
  stadium, racetrack, boxing arena, roller and ice skating rink,  billiard
  parlor,  bowling  establishment and other similar place where members of
  the general public assemble  either  to  engage  in  physical  exercise,
  participate  in  athletic  or  recreational  competition  or activity or
  witness  sports,   cultural,   recreational   or   similar   activities.
  Playgrounds,  gymnasiums,  health  clubs,  enclosed  areas  containing a
  swimming pool and areas where bingo is played are not "sports arenas and
  recreational areas" within the meaning of this subdivision.
    aa. "Tobacco  business"  means  a  sole  proprietorship,  corporation,
  partnership  or  other  enterprise  in which the primary activity is the
  sale or manufacture of tobacco,  tobacco  products  and  accessories  at
  wholesale,  and  in  which  the sale or manufacture of other products is
  merely incidental, and in which smoking on the premises is essential  to
  the  entity  for  the  testing or product development of such tobacco or
  tobacco products.
    bb. "Zoo" means any indoor area open to the public for the purpose  of
  viewing  animals.  An  aquarium  is  a  "zoo" within the meaning of this
  subdivision.
    cc. "Day treatment program" means a facility which is (i) licensed  by
  the state department of health or the office of alcoholism and substance
  abuse  services,  the  office  of mental health, or the office of mental
  retardation and developmental disabilities within the  state  department

  of  mental  hygiene to provide treatment to aid in the rehabilitation or
  recovery of its patients based on  a  structured  environment  requiring
  patient  participation  for  no  less than three hours each day; or (ii)
  which  is  authorized  by  the state commissioner of health to conduct a
  program pursuant to section 80.135 of title ten of the New York code  of
  rules and regulations.
    dd.  "Health  related  service"  means  service  in  a  facility which
  provides or offers lodging, board and physical care including,  but  not
  limited to, the recording of health information, dietary supervision and
  supervised hygienic services incident to such service.
    ee.  "Member" means, for purposes of subdivision ff of this section, a
  person who (i) satisfies the requirements for membership in a membership
  association, and (ii) affirmatively  accepts  an  invitation  from  such
  membership association to become a member.
    ff.  "Membership  association" means a not-for-profit entity which has
  been created or organized for a charitable, philanthropic,  educational,
  political,  social or other similar purpose and which is registered with
  the department of health and mental hygiene in accordance with the rules
  of  the  department.  In  determining  whether  such  an  entity  is   a
  "membership  association,"  the  department of health and mental hygiene
  shall consider, but need not be limited to, the following factors:
    (i) whether it has by-laws  or  a  similar  governing  instrument  and
  whether  such by-laws or similar governing instrument expressly provides
  for members;
    (ii) whether it has established permanent and identifiable  membership
  selection  criteria, the purpose of which is to screen potential members
  on a  basis  related  to  its  charitable,  philanthropic,  educational,
  political, social or other similar purpose;
    (iii)  whether it conducts elections to select its governing structure
  and/or body;
    (iv) whether the premises within which it is located are controlled by
  its membership;
    (v) whether it is operated solely for the benefit and pleasure of  its
  membership;
    (vi) whether it expressly acknowledges the acceptance of members, such
  as  by  sending  a  membership card or by the inclusion of a member on a
  membership roster.
    Such registration shall remain in effect for two years  and  shall  be
  renewable  based  upon the factors described in this subdivision and the
  rules of the department.
    gg. "Owner operated bar" means a bar in which all duties with  respect
  to  preparing food and drink, cleaning, dishwashing and racking glasses,
  serving,  maintaining  inventory,  stocking  shelves  and  providing  of
  security  for  such a bar are performed at all times only by individuals
  who are principal owners of such bar as  defined  in  this  section  and
  which  is registered with the department of health and mental hygiene in
  accordance with the rules of the  department;  provided,  however,  that
  individuals  other  than  the  principal  owners  may  perform  cleaning
  functions at times when the bar is  not  open  to  the  public,  guests,
  members or patrons.
    hh. "Principal owner" shall mean an individual who holds a twenty-five
  percent  or  greater  ownership  interest in a bar and is a state liquor
  authority  licensee  for  such  bar,  or  an  individual  who  holds   a
  twenty-five  percent  or  greater  ownership  interest in a partnership,
  joint venture, corporation or limited liability  corporation,  which  is
  the sole owner of a bar and the state liquor authority licensee for such
  bar;  provided,  however,  that an owner operated bar shall have no more
  than three principal owners.

    ii. "Tobacco product" means  any  substance  which  contains  tobacco,
  including,  but  not  limited  to,  cigarettes, cigars, pipe tobacco and
  chewing tobacco.
    jj.  "Tobacco bar" is a bar that, in the calendar year ending December
  31, 2001, generated ten percent or more of its total annual gross income
  from the on-site sale of tobacco products  and  the  rental  of  on-site
  humidors,  not  including  any  sales  from  vending  machines,  and  is
  registered  with  the  department  of  health  and  mental  hygiene   in
  accordance with the rules of such agency. Such registration shall remain
  in  effect  for  one  year  and  shall  be renewable only if: (i) in the
  preceding calendar year, the previously registered tobacco bar generated
  ten percent or more of its total annual gross income  from  the  on-site
  sale  of  tobacco  products and the rental of on-site humidors; and (ii)
  the tobacco bar has not expanded its size or changed its  location  from
  its size or location as of December 31, 2001.
    kk.  "Negative  air  pressure"  shall  mean  the  air exhausted to the
  outdoors from a room is at a greater  volume  than  the  volume  of  air
  supplied into the room.
    ll.  "Ventilation  rate"  shall mean the rate at which air is supplied
  into a room.