Section 17-508. Violations and penalties

a.  It shall be unlawful for any person who owns, manages, operates or
  otherwise controls the use of premises in which smoking is prohibited or
  restricted pursuant to this chapter, or the designated agent thereof, to
  (i) provide a room designated for smoking including, but not limited to,
  a separate smoking room or an enclosed room, which fails to comply  with
  the  provisions of this chapter; provided, however, that the obligations
  of an owner or building manager of  a  building  (where  such  owner  or
  building manager of a building in which a public place is located is not
  the  operator  or  employer of such public place) with respect to such a
  room shall be limited to work authorized by  any  permits  necessary  to
  perform  construction  obtained  by  the owner or his or her agent; (ii)
  fail to post the signs required by section 17-506; (iii) fail to  remove
  ashtrays as required by subdivision d of section 17-506; or (iv) fail to
  make  a  good  faith  effort  to  comply with subdivisions c, d and e of
  section 17-507. In actions brought for violations of  this  subdivision,
  the  following  shall  be  affirmative  defenses:  (i)  that  during the
  relevant time period actual control of the premises was not exercised by
  the respondent or a person under the  control  of  the  respondent,  but
  rather  by  a  lessee, sublessee or any other person; provided, however,
  that after receiving the notice of violation, the respondent submits  to
  the  department  within  five  business days, by certified mail, a sworn
  affidavit and other such proof as may be necessary, indicating  that  he
  or she has not exercised actual control during the relevant time period;
  (ii)  that  a  person  smoking  in  any area where smoking is prohibited
  pursuant to section 17-503 was informed by a person who  owns,  manages,
  operates  or  otherwise  controls  the  use  of  such  premises,  or the
  designated agent thereof, that such person smoking is  in  violation  of
  this  local  law  and  that  such  person who owns, manages, operates or
  otherwise controls the use  of  such  premises  has  complied  with  all
  applicable  provisions  of this chapter during the relevant time period;
  provided,  however,  that  after  receiving  notice  of  violation,  the
  respondent  submits  to  the  department  within  five business days, by
  certified mail, a sworn  affidavit  and  other  such  proof  as  may  be
  necessary, indicating that respondent informed the person smoking in any
  area  where  smoking  is prohibited pursuant to section 17-503 that such
  person was in violation of  this  local  law  and  that  respondent  has
  complied  with  all  applicable  provisions  of  this chapter during the
  relevant time period; or (iii) that a person smoking in  any  restricted
  common  indoor  area  where  smoking  is  prohibited pursuant to section
  17-503 was not informed by the owner or building manager of the premises
  (where such owner or building manager of a building in  which  a  public
  place  or  a  place  of  employment  is  located  is not the operator or
  employer of such public place or place of employment) or by the operator
  of a multiple dwelling containing ten or more dwelling units  that  such
  person  smoking  is  in  violation of this local law because such owner,
  building manager or operator did not have a  designated  agent  on  duty
  when  such  person  was  smoking and that such owner or building manager
  has, where applicable, complied with the mailing of  a  notice  required
  pursuant  to  subdivision  e  of section 17-507; provided, however, that
  after receiving notice of  violation,  the  respondent  submits  to  the
  department  within  five  business  days,  by  certified  mail,  a sworn
  affidavit and other such proof as may be necessary,  indicating  that  a
  person  smoking  in  any  restricted common indoor area where smoking is
  prohibited pursuant to section 17-503 was not informed by the respondent
  that such person smoking is in violation of this local law  because  the
  respondent  did not have a designated agent on duty when such person was

  smoking and that the respondent has, where applicable, mailed the notice
  required pursuant to subdivision e of section 17-507.
    b.  It  shall be unlawful for an employer whose place of employment is
  subject to regulation under section 17-504 to fail to  comply  with  the
  provisions  of  that  section,  including,  but  not  limited  to, those
  provisions requiring the  adoption,  implementation,  dissemination  and
  maintenance   of   a  written  smoking  policy  which  conforms  to  the
  requirements of subdivision e of section 17-504, or to fail  to  make  a
  good  faith  effort  to  comply with subdivision c of section 17-507. In
  actions brought for violations of  this  subdivision,  it  shall  be  an
  affirmative defense that the employer (i) has made good faith efforts to
  insure that employees comply with the provisions of such written smoking
  policy  and  (ii)  has  complied  with all applicable provisions of this
  chapter.
    d. It shall be unlawful for any person to  smoke  in  any  area  where
  smoking is prohibited under section 17-503 and section 17-504.
    e.  Every  person  who  violates  subdivisions  a or b of this section
  shall, for a first violation thereof, be liable for a civil  penalty  of
  not  less  than  two hundred dollars nor more than four hundred dollars;
  for a second violation, both of which were committed within a period  of
  twelve  months,  be  liable  for  a  civil penalty of not less than five
  hundred dollars nor more than one thousand dollars; and for a  third  or
  subsequent  violation,  all  of  which were committed within a period of
  twelve months, be liable for a  civil  penalty  of  not  less  than  one
  thousand  dollars  nor  more than two thousand dollars. Every person who
  violates subdivision d of this section  shall  be  liable  for  a  civil
  penalty of one hundred dollars for each violation.
    f.  A  proceeding  to recover any civil penalty authorized pursuant to
  the provisions of subdivision e of this section shall  be  commenced  by
  the  service  of  a notice of violation which shall be returnable to the
  administrative tribunal established by the board of health. The board of
  health's administrative tribunal shall have  the  power  to  impose  the
  civil penalties prescribed by subdivision e of this section.
    g.  Whenever  a  notice  of  violation  of  subdivision a or b of this
  section is served by a person with power to enforce  the  provisions  of
  this  chapter  pursuant  to subdivision a of section 17-507, such notice
  shall, where applicable, include an order which requires the  respondent
  to  correct  the  condition  constituting  the  violation  and to file a
  certification with the department that the condition has been corrected.
  Such order shall require that the condition be corrected within ten days
  from the date that the order is issued and  that  certification  of  the
  correction of the condition be filed with the department in a manner and
  form  and  within  such  further  period  of  time  to  be determined in
  accordance with rules and regulations promulgated by the commissioner.
    h. If the administrative tribunal established by the board  of  health
  finds,  upon  good  cause  shown, that the respondent cannot correct the
  violation specified in subdivision g of this section,  it  may  postpone
  the period for compliance with such order upon such terms and conditions
  and  for  such  period  of  time  as  shall  be  appropriate  under  the
  circumstances.
    i. In any proceeding before the administrative tribunal established by
  the board of health, if the tribunal finds that the department or  other
  agency issuing the notice of violation has failed to prove the violation
  charged,  it  shall  notify  the  department or other agency issuing the
  notice of violation, and the order requiring the respondent  to  correct
  the condition constituting the violation shall be deemed to be revoked.
    j.  When  the  owner  or  operator  of  a  bar has been found to be in
  violation of subparagraph c of paragraph  twenty  of  subdivision  a  of

  section  17-503  on  two  or  more occasions on the basis of one or more
  employees being in a separate smoking room at times not permitted  under
  this  chapter,  the  tribunal  shall  revoke  the right of such owner or
  operator to maintain a separate smoking room in such bar.
    k.  The penalties provided by this section shall be in addition to any
  other penalty imposed by  any  other  provision  of  law  or  regulation
  thereunder.