It’s been a decade since New York City banned smoking in restaurants, bars, and other venues. 
But recently, you could walk into any dining establishment, and you’ll inevitably note at least one or two diners blowing smoke clouds into the air.
Technically, neither the patrons nor the restaurants violated the city’s 2002 Smoke-Free Air Act. That’s because the “smoke” is vapor clouds, rolling from battery-powered devices that serve as a nicotine delivery system.
Now, the city council has banned e-cigarettes as well, asserting that the devices contain tobacco and, as they are made to look like cigarettes, pose a potential problem for business owners seeking to enforce the city ordinance.
Our New York City restaurant lawyers know that each ordinance violation is subject to fines and penalties. The first violation carries a possible fine of between $200 and $400. If the second violation occurs within a year of the first, it carries a fine of between $500 and $1,000. If it occurs within one year of the first, a third, or subsequent violation has a fine of between $1,000 and $2,000.
Additionally, the New York City Department of Health and Mental Hygiene has the authority to revoke or suspend the permit of an establishment with three or more violations within one year.
Restaurants and Bars have been understandably concerned about whether e-cigarettes might expose them to potential liability under the ordinance. That’s why several establishments have initiated their policies about the devices before the ruling.
Bloomberg Businessweek reported on several responses to the issue. For example, the spokeswoman for Momofuku (which owns Ssam Bar, Ma Peche, and Ko) said that e-cigarettes are banned on-premises because they are “disruptive” to other diners. The same policy is in place at Perla, Fedora, and Montmartre.
Still, several other restaurant owners and managers said they didn’t mind them. A few even said they had welcomed them because patrons who smoke are less likely to return a plate to the kitchen to be reheated. After all, the food arrived when they stepped outside for a drag.
A spokesperson for the Consumers for Smoke-Free Alternatives argued against the ban by citing a Drexel University School of Public Health study that indicated e-cigarettes pose no risk to bystanders. Further, she added that e-cigarettes save lives because they offer people a way to avoid smoking actual cigarettes, with all the tar and additives included.
However, city leaders say they can’t rely on restaurant owners’ discretion, adding that the chemicals emitted by the devices aren’t known and poses unknown risks to others nearby. Experts said the devices were a gateway to smoking and made smoking glamorous for teenagers. The Bloomberg administration supported the ban.
The ban is now in effect wherever smoking is prohibited, such as restaurants, bars, parks, and office buildings.
The Wright Law Firm is a business law firm located in Midtown Manhattan—call (212) 619-1500 for a confidential consultation.
Additional Resources:
City Council Wants to Ban E-Cigarettes in New York City, Dec. 2, 2013, By Greg Morabito, NY.Eater.com