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Tags: adverse effects, air act, bloomberg, ciaa, city department of health and mental hygiene, department of health, department of health and mental hygiene, financial hardship, frieden, health and mental hygiene, health application, new york city administrative code, new york city department of health, new york city department of health and mental, new york department of health and mental hygiene, public health law, sfaa, smoke free, state public health, waivers,Pages: 16
Language: english
Created: Thu Oct 21 21:31:01 2004
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THE CITY OF NEW YORK
DEPARTMENT OF HEALTH AND MENTAL HYGIENE
Michael R. Bloomberg Thomas R. Frieden, M.D., M.P.H.
Mayor Commissioner
nyc.gov/health
Application for Waiver
The New York State Clean Indoor Air Act
THE FOLLOWING APPLICATION AND DOCUMENTATION ARE
REQUIRED TO APPLY FOR A WAIVER UNDER ARTICLE 13-E OF THE
NEW YORK STATE PUBLIC HEALTH LAW WITHIN NEW YORK CITY
Article 13-E of the New York State Public Health Law, commonly known as the Clean Indoor
Air Act (CIAA), Section 1399-u, authorizes the Commissioner of the New York City
Department of Health and Mental Hygiene (DOHMH) to waive provisions of the CIAA. The
NYC Smoke-Free Air Act (SFAA), Chapter 5, Title 17 of the New York City Administrative
Code as amended in December 2002, has no provisions for waivers. Only entities that would
have qualified for an exemption or exception under the SFAA prior to the passage of the CIAA
may apply for a waiver pursuant to the CIAA.
Section 1399-u of the CIAA as stated below allows an applicant to request a waiver for reasons
of undue financial hardship and/or if conditions exist which make compliance with the law
unreasonable.
§1399-u. Waiver.
1. The enforcement officer may grant a waiver from the application of a specific
provision of this article, provided that prior to the granting of any such waiver the
applicant for a waiver shall establish that:
(a) Compliance with a specific provision of this article would cause undue
financial hardship; or
(b) Other factors exist which would render compliance unreasonable.
2. Every waiver granted shall be subject to such conditions or restrictions as may be
necessary to minimize the adverse effects of the waiver upon persons subject to an
involuntary exposure to second-hand smoke and to ensure that the waiver is
consistent with the general purpose of this article.
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Application for Waiver Clean Indoor Air Act
INSTRUCTIONS
The following submission guidelines and documentation requirements
are for all applicants requesting a waiver:
· Please type or print clearly in ink all information that you provide as part of the application
package.
· The name of the applicant or entity must be the same on all supporting documentation
submitted.
· The application must be completed and signed where indicated.
· If the applicant is not applying in person, the person applying on the applicant's behalf
must present a power of attorney on either a standard legal form or an affidavit form
provided by the DOHMH.
· The applicant or person holding power of attorney must present one acceptable form of
his/her photo identification as detailed below (in the absence of the applicant's photo
identification). A copy of one of the following is required:
! Driver s license with photo or DMV Non-Driver ID card
! Alien Registration Card or Naturalization Certificate with photo ID
! U.S. or foreign passport with photo ID
! U.S. government agency-issued photo ID
· Except where noted, please provide original documentation, no copies or faxes will be
accepted.
Section A. Eligibility Criteria:
NO WAIVER APPLICATION WILL BE CONSIDERED IF THE FOLLOWING CRITERIA ARE NOT MET. .
1) ALL establishments applying for a waiver must:
(a) Have been legally in business at least one year before and one year after July 24, 2003.
! Legally in business, for the purposes of this application, means the establishment
has obtained all licenses, permits and/or registrations required by New York City
law for that particular type of establishment; specifically, a permit for operating a
Food Service Establishment is required if the establishment is providing the public
with ready to eat food or beverages.
(b) Be eligible for an exemption or exception under the New York City Smoke-Free Air Act
of 2002 and meet all other criteria for such establishments as delineated in Chapter 10 of
Title 24 of the Rules of the City of New York. Such entities include:
! Owner operated bars
! Bars with separate smoking rooms (expires January 1, 2006)
! Certain health care facilities
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Application for Waiver Clean Indoor Air Act
2) Any establishment that requires a DOHMH permit must have been in business and permitted
by DOHMH at least one year prior to July 24, 2003 and possess a current valid permit at the
time of application.
! The length of time a Food Service Establishment has been in business will be
calculated from the date of application for permit to the NYC DOHMH as indicated
in the Department's records.
Section B. Application Guidelines.
GENERAL REQUIREMENTS:
1) Applications for waivers are to be typed or printed using blue or black ink on the standard
forms provided by the Department of Health and Mental Hygiene.
2) A completed Waiver Application Form. See Attachment #1
3) A completed Waiver Data Sheet. See Attachment #2 - The applicant's name and address
must be the same and provided on all supporting documents
4) All waiver requests must include a response to each of the following items:
(a) The specific section(s) of the Clean Indoor Air Act requested to be waived.
(b) A description of conditions and/or restrictions that will be implemented by the facility to
minimize the adverse effects of the waiver upon persons subject to an involuntary
exposure to second-hand smoke and assurance that the waiver is consistent with the
general purpose of the CIAA, SFAA and Commissioner's Rules
(c) An explanation of conditions or restrictions that will deal with the following issues:
(1) Smoking areas must be located away from the general traffic patterns of travel to and
from the establishment, food prep areas and the restrooms.
(2) Smoking/non-smoking areas are physically separated and/or utilize special
mechanical ventilation systems and must be located in such a manner to avoid
second-hand smoke exposure to non-smokers.
(3) Smoking/non-smoking area signs must be conspicuously posted.
(4) Specific actions to be taken to eliminate second-hand smoke in areas where smoking
is prohibited.
(d) Documentation that all current and future employees have been and will be notified in
writing that the organization is applying for a waiver and of the possibility that they may
be exposed to second-hand smoke.
(e) Documentation that all current and future employees have been and will be provided with
an acceptable smoking policy that includes an additional "employee clause" requiring
that any employee who is subjected to working in an area(s) where smoking may be
allowed, due to the granting of this waiver, will be excluded from working in said area(s)
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Application for Waiver Clean Indoor Air Act
without reprisal or other negative consequence in relation to his/her employment, upon
the employee's written request.
Note: This requirement is not negotiable and non-compliance will result in termination
of the waiver. The SFAA provides that no employer shall take retaliatory adverse
personnel action against employees or applicants for employment exercising their
rights under the law, and confers on employers some other requirements regarding
their employees and the law. Applicants for waivers are expected to be familiar
with the SFAA and especially Section 17-504. Applications must demonstrate
that there are no viable alternatives to compliance.
REQUIREMENTS FOR CLAIMING UNDUE FINANCIAL HARDSHIP:
1) You may claim an undue financial hardship due to loss of revenue if documentation provided
demonstrates that the facility, subsequent to the effective dates of the SFAA and CIAA, has
experienced an uncharacteristic and dramatic reduction in state sales tax receipts from the
sale of food and beverages.
(a) You must submit the following financial documentation indicating an undue financial
hardship:
(1) Bookkeeping records for a period of no fewer than twelve (12) consecutive months
during which the facility has operated smoke-free as compared to the combined
average of such receipts during the same twelve (12) month period in the two (2)
years immediately prior to smoke-free operation.
(2) Exact copies of the signed Federal tax statements and State sales tax statements that
were submitted by the operator to the Internal Revenue Service and to the Department
of Taxation and Finance to support the operator's contention that the facility has
experienced an uncharacteristic and dramatic reduction in state sales tax receipts from
the sale of food and beverages as described in item (1) above.
(b) Other documentation required:
(1) A description of all efforts made to operate the facility with a smoke-free
environment;
(2) Evidence that demonstrates the facility's purported reduction in State sales tax
receipts from the sale of food and beverages is not due to factors other than the
presence of a smoke-free environment. Such documentation must address and
include, but is not be limited to evidence that:
(i) The facility operated during the same number of hours and the same number of
days for the twelve-month smoke-free period as compared to one year prior to
July 24, 2003;
(ii) The facility was open on the same high-business days, such as holidays, as the
previous year;
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Application for Waiver Clean Indoor Air Act
(iii)There were no significant changes in competition or working conditions (e.g.,
extreme adverse weather, a strike, or prolonged construction near or adjacent to
the establishment) within a radius of a half- mile from the establishment from July
24, 2003 through time of this application;
(iv) The menu, key personnel, theme or intended audience has not changed since July
24, 2003; and
(v) There have been no changes in facility maintenance and construction.
REQUIREMENTS FOR CLAIMING CONDITIONS EXIST THAT MAKE COMPLIANCE WITH THE
CIAA UNREASONABLE:
You must provide evidence demonstrating that specific safety, security or other factors or
other factors make compliance unreasonable.
1) Safety or Security Factors Exist that Would Make Compliance Unreasonable:
(a) The operator of the facility must demonstrate, through documentation, that compliance
with the law will jeopardize the safety and/or security of facility staff, patrons or others.
(b) A waiver application based on safety or security factors should contain the following:
(1) The specific provision from which the applicant seeks a waiver;
(2) A description of all efforts made to operate the facility safely or securely as a smoke-
free environment;
(3) A complete description of how the specific provision from which the applicant seeks
a waiver caused or contributed to, or will cause or contribute to, safety or security
concerns;
(4) Steps that will be taken to mitigate employees' and the public's exposure to second-
hand smoke should a waiver be granted.
2) Other Factors Would Make Compliance Unreasonable:
(a) The operator of the facility must demonstrate through documentation that factors other
than safety, security or financial hardship would make compliance with a specific
provision of the CIAA unreasonable.
3) A waiver application based on factors other than safety, security or financial hardship that
would make compliance with a specific provision of the CIAA unreasonable should contain a
description of all efforts made to operate the facility as a smoke-free environment.
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Section C. Other Required Documentation:
COMMERCIAL CORPORATIONS OR LIMITED LIABILITY COMPANIES (LLC):
1) New York State Certificate of Authority to Collect Sales Tax and Proof of federal EIN. The
address on the NYS Certificate of Authority must match the site address of the establishment.
2) Proof of Incorporation (ALL of the following items are required):
(a) Filing Receipt or Authority to Conduct Business, issued by NYS Secretary of State
(original or photocopy showing blue watermark seal is acceptable).
(b) Corporate resolution or minutes of most recent annual meeting, listing the current
principal officers of the corporation and dated no earlier that one year preceding the date
of application.
3) Photo identification; one of the following is required for one of the corporation's officers,
directors, or members (LLC); or the representative submitting the application:
(a) Driver=s license with photo or DMV Non-Driver ID Card
(b) Alien Registration or Naturalization Certificate with photo ID
(c) U.S. or foreign passport with photo ID
(d) U.S. government agency issued photo ID
4) A copy of the current New York State Liquor Authority License (if alcoholic beverages are
sold). The license must match the site address of the establishment and be in the name of
corporation or company.
PARTNERSHIPS AND LIMITED LIABILITY PARTNERSHIPS (LLP):
1) Business Certificate of Partnership.
2) New York State Certificate of Authority to Collect Sales Tax and Proof of federal EIN.
Address on NYS Certificate of Authority MUST match the site address of the establishment.
3) Photo identification for a managing partner or the representative submitting the application.
A copy of one of the following is required:
(a) Driver=s license with photo or DMV Non-Driver ID Card
(b) Alien Registration or Naturalization Certificate with photo ID
(c) U.S. or foreign passport with photo ID
4) U.S. government agency issued photo ID
5) A copy of the current New York State Liquor Authority License (if alcoholic beverages are
sold). The license must match the site address of the establishment and be in the name of
either the company or a principal partner.
6) Current partnership agreement.
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Application for Waiver Clean Indoor Air Act
INDIVIDUAL OWNERS:
1) Business Certificate of Ownership (and d/b/a, if applicable).
2) Photo identification of the individual applicant or any representative with
power of attorney. A copy of one of the following is required:
(a) Driver=s license with photo or DMV Non-Driver ID card
(b) Alien Registration Card or Naturalization Certificate with photo ID
(c) U.S. or foreign passport with photo ID
(d) U.S. government agency-issued photo ID
3) New York State Certificate of Authority to Collect Sales Tax and proof of federal EIN. The
address on the New York State Certificate of Authority must match the site address of the
establishment.
4) A copy of the current New York State Liquor Authority License (if alcoholic beverages are
sold). The license must match the site address of the establishment and be in the name of the
individual owner.
NOT-FOR-PROFIT ORGANIZATIONS:
1) Documentation required for corporations, LLC, partnership, LLP or individual
owner, as applicable.
2) Photo identification of the individual applicant or any representative with
power of attorney. A copy of one of the following is required:
(a) Driver=s license with photo or DMV Non-Driver ID card
(b) Alien Registration Card or Naturalization Certificate with photo ID
(c) U.S. or foreign passport with photo ID
(d) U.S. government agency-issued photo ID
3) New York State Certificate of Authority to Collect Sales Tax, if any, and
proof of federal EIN: The address on the New York State Certificate of
Authority must match the site address of the establishment.
4) Proof of federal tax exemption (IRS letter granting exemption containing
section pursuant to which it was granted.)
5) A copy of the current New York State Liquor Authority License (if alcoholic
beverages sold). The license must match the address of the establishment site
and be in the name of the individual owner.
6) A copy of the organization's certificate of incorporation, stamped by the
Secretary of State (original or photocopy showing blue watermark seal is
acceptable).
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Application for Waiver Clean Indoor Air Act
7) A copy of the organization's bylaws and governing rules and/or policies. If
no bylaws, then any other document describing the organization's main
purpose and governing structure.
8) Proof of registration with the State Attorney General as a charitable or
philanthropic organization.
Section D. Causes for Termination of a Waiver:
The following are conditions that will automatically terminate the waiver, whether specifically
indicated on the waiver or not:
1) Change of ownership or location of establishment without notifying DOHMH.
2) One calendar year has passed from the date of approval of the waiver without renewal.
Note: Renewals are not automatic and a new waiver application, complete in all respects,
must be submitted at or prior to the expiration of one year from the granting of the
prior waiver.
3) Failure to maintain any stated condition of the written waiver.
4) Failure to allow any employee assigned to work in an area where smoking is permitted due to
the granting of a waiver to work in a smoke-free area upon request, or retaliation against any
such employee.
5) Failure to maintain your establishment in compliance with any other New York State and
New York City law, rule and or regulation including the New York City Health Code and the
New York State Sanitary Code.
Section E. How to Submit an Application for Waiver:
Please submit the completed application and required supporting documentation to:
Assistant Commissioner
Bureau of Food Safety and Community Sanitation
253 Broadway, 13th floor, CN 59A
New York, NY 10007
Your application for waiver will be reviewed to ensure that all forms have been correctly
completed and that all required documentation is presented and accurate. If you have not
submitted all required documentation, you will be notified and your application will not be
processed until it is complete. The New York City Department of Health and Mental Hygiene
reserves the right to request additional information necessary to make a final decision.
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Application for Waiver Clean Indoor Air Act
Attachment 1. Application for Waiver
(TYPE OR PRINT LEGIBLY)
Part 1.
CAMIS No.: Permit No.:
Name of Corporation, LLC, Partnership, LLP, Individual Owner or Organization:
Trade Name/DBA:
Building Number: Street:
City: State: Zip Code: Telephone:
( )
Type of Ownership (Check one):
___ Corporation ___ LLC ___ Partnership ___ LLP ___ Individual
Hours of Operation (e.g., from 1 PM 2 AM, as applicable for each day):
Day Sunday Monday Tuesday Wednesday Thursday Friday Saturday
Open
Close
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Application for Waiver Clean Indoor Air Act
Part 2.
A. Name of Incorporated Entity: attach a copy of the certificate of incorporation and the
receipt for filing with the New York State Secretary of State
Date incorporated
State(s) where incorporated
B. Unincorporated Organizations. Date organization established in New York. Provide
copies of documents, e.g., charters, indicating status, and date organization founded in
New York State. Indicate whether organization is a chapter or post of a national
membership organization.
Date Founded
Document(s) Submitted
Part 3.
List full names and titles of all officers, directors, senior or governing members, or
members in charge. Use additional sheets of paper, if necessary.
1. Last Name: First Name: Title: SS#
- -
Building Number: Street:
City: State: Zip Code: Telephone:
( )
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Application for Waiver Clean Indoor Air Act
2. Last Name: First Name: Title: SS#:
- -
Building Number: Street:
City: State: Zip Code: Telephone:
( )
3. Last Name: First Name: Title: SS#:
- -
Building Number: Street:
City: State: Zip Code: Telephone:
( )
4. Last Name: First Name: Title: SS#:
- -
Building Number: Street:
City: State: Zip Code: Telephone:
( )
5. Last Name: First Name: Title: SS#:
- -
Building Number: Street:
City: State: Zip Code: Telephone:
( )
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Application for Waiver Clean Indoor Air Act
6. Last Name: First Name: Title: SS#:
- -
Building Number: Street:
City: State: Zip Code: Telephone:
( )
7. Last Name: First Name: Title: SS#:
- -
Building Number: Street:
City: State: Zip Code: Telephone:
( )
8. Last Name: First Name: Title: SS#:
- -
Building Number: Street:
City: State: Zip Code: Telephone:
( )
Part 4.
Name of Applicant, Corporate Officer, or Partner:
Signature of Applicant, Corporate Officer, or Partner: Title: Date
/ /
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Attachment 2. Waiver Data Sheet
Name of Corporation, LLC, Partnership, LLP or Individual Owner(s):
Building Number Street: Boro Zip Code
Answer all questions.
Yes No Reason for Waiver Request:
1. Are you requesting a waiver for undue financial hardship?
2. Are you requesting a waiver because conditions exist other than financial
that make compliance unreasonable?
3. Have you explored any alternatives to comply with the CIAA?
(If "Yes", describe separately and attach)
Yes No Eligibility:
1. Does the SFAA permit smoking in your establishment if a waiver is
granted?
2. Has your business been legally operating for one year after July 24, 2003?
3. Does your business require a permit from DOHMH?
4. If your business requires a permit from DOHMH does it have a current valid
permit?
5. Is your establishment registered as an Owner-Operated Bar?
(If "Yes", registration #: )
6. Does your establishment have a registered Separate Smoking Room?
(If "Yes", registration #: )
Yes No Preventive measures for exposure to second-hand smoke:
1. Are proposed smoking areas away from the general traffic patterns of travel
used to enter the establishment, food preparation areas and the restrooms?
2. Are smoking/non-smoking areas physically separated in such a manner to
control second-hand smoke exposure to non-smokers?
3. Do smoking/non-smoking areas use special mechanical ventilation systems
to control second-hand smoke exposure to non-smokers?
4. Is there maintenance of smoking/non-smoking area signs?
5. Will other specific actions be taken to eliminate violators smoking in areas
where smoking is prohibited? (If "Yes", describe separately and attach)
6. Have all employees been notified in writing of this application?
7. Has an approved smoking policy been distributed?
8. Does the policy include the "employee" clause?
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Yes No Financial Records:
Are you providing:
1. Copies of your Federal Taxes for the two previous years prior to July 24,
2003?
2. Copies of your Federal taxes after July 24, 2003 to present?
3. Other financial statements after July 24, 2003?
4. Copies of your New York State taxes for the two previous years prior to
July 24, 2003?
5. Copies of your New York State taxes after July 24, 2003 to present?
6. Other financial statements after July 24, 2003?
Yes No Other Contributing Factors:
1. Since March 31, 2003 has there been:
1a. A significant change in operation:
1b. Menu (including prices)
1c. Theme
1d. Intended audience
1e. Personnel
1f. Management
1g. Number of hours per day the business operated
1h. Number of days the business operated
2. Number of hours and number of high business days the business
operated, i.e. holidays.
3. Any major construction on your premises?
4. Any major construction near your premises?
5. A major change in facility maintenance?
6. A change in neighboring competing businesses within a half-mile radius of
your business?
7. A change in neighboring supporting businesses (employers)) within a 3-
block radius to your business?
Yes No Conditions making compliance with the CIAA unreasonable:
1. Are you claiming that security is an issue?
2. Are you claiming that safety is an issue?
3. Are claiming therapeutic or other health related issues?
Is your establishment a:
4a. Hospital (indicate unit):
4b. Tobacco Company
4c. Other (indicate use separate sheet if necessary):
5. Have you provided a detailed explanation why compliance with the CIAA is
unreasonable?
6. Have you provided data and documentation to support your request?
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Application for Waiver Clean Indoor Air Act
Yes No Other Required Documentation:
1. Have you provided a copy of your New York State Certificate of Authority
to Collect Sales Tax?
2. If you sell cigarettes, cigars or other tobacco products have you provided a
current copy of your:
2a. NYS Department of Taxation and Finance Retail Dealer Certificate of
Registration for Cigarettes and Tobacco Products
2b. NYS Department of Taxation and Finance Certificate of Appointment as
Distributor of Tobacco Products
3. Do you sell alcoholic beverages have you provided a current copy of your
NYS Liquor Authority License?
4. Have you provided a current copy of your NYS Liquor Authority License?
Yes No Corporation or Limited Liability Company
1. Is your business is incorporated or a limited liability company?
2. Have you provided a copy of your:
2a. NYS Certificate of Incorporation
2b. Receipt of filing issued by the NYS Secretary of State
2c. Authority to Conduct Business issued by the NYS Secretary of State
2d. Corporate Resolution or minutes of the most recent annual meeting
listing all current corporate officers dated within the last 12 months
Yes No Partnership or Limited Liability Partnership
1. Is your business a partnership or limited liability partnership?
2. Have you provided a copy of your:
2a. Business Certificate of Partnership
2b. Partnership Agreement
Yes No Individual Owner
1. Are you are an individual owner?
2. Have you provided a copy of your Business Certificate of Ownership?
Yes No Unincorporated or Not-for-Profit Organization
1. Is your organization is a not-for-profit entity?
2. Have you provided a copy of your:
2a. Charter
2b. The organization's bylaws and governing rules and/or policies, or, if no
bylaws, any other document describing the organization's main purpose
or governing structure
2c. Proof of federal tax exemption letter, IRS code 501(c)(3) or other law
2d. Registration with the State Attorney General as a charitable or
philanthropic organization
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Attachment 3. Acknowledgement and Certification
I, , state that I am the
(Name) (Title)
of , that I have completed the above application for
(Name of Applicant Entity)
waiver from the regulations of New York State Clean Indoor Air Act for such entity and that the
statements made therein and the documents submitted are truthful and accurate to the best of my
knowledge.
I further acknowledge that I and the persons I represent are fully aware of the consequences,
including the forfeitures and civil and criminal penalties, which may result if any statement and
document provided is determined to be false.
Dated: Signature:
Sworn to before me
this day of , 200 .
Notary Public
[Social Security numbers may be requested for the purpose of identification and verification of
the facts alleged herein, shall be maintained with the confidentiality required by and shall not be
further disclosed except in accordance with applicable law.]
PLEASE NOTE:
All information submitted is subject to requests for documentation and/or
verification, and the Department may also request further information and/or
documentation based on answers and submissions requested herein.
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