Tobacco Use and the New York State Pro-Kids Act of 1994

On July 26, 1994, Governor Cuomo signed into law new legislation known as the New York State Pro-Kids Act of 1994. This act amends both the Public Health Law and the Education Law to curtail exposure to tobacco use and prohibit out-of-package sales of tobacco products. Sponsors of the legislation were Senator Tully and Assemblymen Grannis, Gottfried, and Eve. This act took effect on August 25, 1994. The State Pro-Kids Act of 1994 directly effects both public and nonpublic elementary and secondary schools.

The New York State Pro-Kids Act prohibits tobacco use in school buildings, on school grounds, and in any vehicle used by a school, such as school buses or vans.

Schools, when reviewing the tobacco use issues, need not only be knowledgeable about the new State Pro-Kids Act, but also other tobacco use legislation such as the New York State Clean Indoor Air Act of 1989 and U.S. Title X of Goals 2000: Pro-Children Act of 1994.

An Overview of the State Pro-Kids Act

Provisions of the act which affect public and nonpublic schools are:

 Section 1 of the act amends subdivision 9 of Section 1399-n of the Public Health Law to define school grounds as: "any building, structure, and surrounding outdoor
grounds contained within a public or private pre-school, nursery school, elementary or secondary school's legally defined property boundaries as registered in a county clerk's office, and any vehicle used to transport children or school personnel."

 Section 2 of the act amends subdivision 1 of Section 1399-o of the Public Health Law to state: Smoking shall not be permitted and no person shall smoke in the following indoor areas open to the public: auditoriums, elevators, gymnasiums, enclosed indoor areas open to the public containing a swimming pool, classrooms, public means of mass transportation including buses, vans, taxicabs, and limousines, youth centers and facilities for detention, child day care centers, group homes for children, public institutions for children, and residential treatment facilities for children and youth.

 Section 3 of the act adds a "new" subdivision 8 of Section 1399-o of the Public Health Law to read: "Notwithstanding the provisions of any other law, rule or regulation, tobacco use shall not be permitted and no person shall use tobacco on school grounds; provided, however, that smoking by adult faculty and staff members may be permitted in a designated smoking area during non-school hours. For purposes of this section, school hours shall include any student activity that is supervised by faculty or staff or any officially sanctioned school event." (The legislation does not define non-school hours.)

 Section 4 of the act amends subdivision 2 (to add to Section 409 of Education Law) to read: "Notwithstanding the provisions of any other law, rule or regulation, tobacco use shall not be permitted and no person shall use tobacco on school grounds; provided, however, that smoking by adult faculty and staff members may be permitted in a designated smoking room during non-school hours. For purposes of this section, school hours include any student activity that is supervised by faculty or staff or any officially sanctioned school event. "School grounds" means any building, structure, and surrounding outdoor grounds contained within a public or private pre-school, nursery school, elementary or secondary school's legally defined property boundaries as registered in a county clerk's office."

 Section 5 of the act amends subdivision 4 (Section 3020-a of Education Law) to read: "No person enjoying the benefits of tenure shall be suspended for a fixed time without pay or dismissed due to a violation of article thirteen-E of the public health law." Article thirteen-E of the Public Health Law contains New York State Pro-Kids Act provisions. (Section 3020-a of the Education Law as amended by Chapter 691 of the law of 1994)

 Section 8 of the act reads: "This act shall take effect 30 days after it shall have become a law, except that the provisions of sections 3 and 4 of the act shall not supercede any collective bargaining agreement, during its term, in existence on the effective date of this act."

Legislative Implications Regarding Tobacco Use In Schools

In addressing the legislative implications for tobacco use and schools, administrators must review the Federal Goals 2000: Pro-Children Act of 1994; the New York State Clean Indoor Air Act of 1989; and the New York State Pro-Kids Act of 1994. In determining which legislation requirement takes precedent, the rule of thumb is that the most stringent requirement is the one to comply with. Following are some examples of how all the legislation interacts on the situation.

 Presently, the State Pro-Kids Act allows tobacco use in a school building only during non-school hours and then only in a designated smoking area. However, the Federal Pro-Children Act which takes effect on December 26, 1994, prohibits any tobacco use in any school building at any time. This means that persons in the school building for evening events such as continuing education and evening custodial employees are not permitted to smoke. (Goals 2000: Pro-Children Act and New York State Pro-Kids Act)

 Employee collective bargaining agreements which address smoking may not be re-negotiated or renewed once they expire. Staff with agreements which currently permit smoking may smoke only during non-school hours and then only in a designated area. (Goals 2000: Pro-Children Act and New York State Pro-Kids Act)

 Tobacco use is not permitted on school grounds during school hours or at any officially sanctioned school event. This includes athletic events (football games, etc.)
and any other event officially sanctioned by the school, such as Bingo games, community events, and fairs. (New York State Pro-Kids Act)

 Tobacco use is not permitted at any time in vehicles used for school purposes, regardless of whether or not students are on board. This includes school buses, vans, taxicabs, and limousines. (New York State Pro-Kids Act)

 Without exception, the use of smokeless tobacco, such as snuff and chewing tobacco, is prohibited on school grounds at all times. (New York State Pro-Kids Act)

Enforcement of the New York State Pro-Kids Act

The New York State Pro-Kids Act will be enforced by New York State County Departments of Health, City Boards of Health, or the New York State Department of Health district offices, where applicable, under the New York State Clean Indoor Air Act of 1989.  There are civil penalties and fines associated with non-compliance of this law.

Legal References of Tobacco Use in Schools

 Federal Pro-Children Act of 1994 (Title X of Goals 2000: Educate America Act)

 New York State Clean Indoor Air Act of 1989 (Public Health Law; Article 13-E and 13-F)

 New York State Pro-Kids Act of 1994 (amends Public Health Law and Education Law)


For further information regarding the New York State Pro-Kids Act of 1994, you may contact your local BOCES Health and Safety Office or the Central Services Team 1 - Facilities Planning at (518) 474-3906. For legal opinion on specific tobacco use issues, contact the New York State Education Department's Office of Counsel at (518) 474-6400.