Developing Smokefree Implementation Regulations

Private Clubs

Model

Please note that we do not recommend that smokefree laws exempt “private clubs” or any other enclosed environments. This language is provided only to assist in the rulemaking process in cases in which “private clubs” have previously been exempted by statute.

"Private Club" means a not-for-profit organization, whether incorporated or not, which is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes; which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose; and which only sells alcoholic beverages incidental to its operation. All the duties of a private club, including food and beverage preparation and service, secretarial work, and security, must be performed by members who do not receive compensation of any kind for the performance of their duties.

Smoking may be permitted in private clubs that have no employees or independent contractors, except when open to the public, provided that smoke from such clubs does not infiltrate into areas where smoking is prohibited under the provisions of this Article. A membership organization shall be regarded as open to the public when it is rented from the organization for a fee or other compensation, when it displays signs or advertising inviting nonmembers to enter the premises or takes other action that may reasonably be regarded as inviting or allowing nonmembers to enter, or is occupied by a nonmember.

Examples

New York clean indoor air act (effective 2003)
Massachusetts Workplace Law (effective 2004)

New York State Department of Health Clean Indoor Air Act Guidance, December 12, 2003

Applicability of Membership Associations as defined in Section 1399-n(4) and described in Section 1399-q(4) of the Public Health Law.

A “membership association” in which all the duties are performed by members who do not receive compensation of any kind from the membership association or any other entity for the performance of their membership association duties, is exempt from all smoking restrictions contained within the CIAA. Compensation includes pay, tips, free membership, life insurance, drinks, meals, lodging, or any other items that would be considered compensation for performance of their duties. Any membership association that meets the criteria described in Section 1399-q(4) for “membership associations” is not subject to any of the provisions in the CIAA. Such organization could allow smoking in facilities that serve food and alcoholic beverages, operate bingo games or operate other fund raising activities. These activities could be attended by members, member guests and the general public.

Any organization seeking exemption from the applicability of the CIAA as a membership association must show that:

It is a membership association, which is defined in Section 1399-n(4) as a not-for-profit entity which has been created or organized for a charitable, philanthropic, educational, political, social or other similar purpose; and
All of the duties with respect to the operation of such association, including, but not limited to

the preparation of food and beverages,
the service of food and beverages,
reception and secretarial work, and
the security of the membership association

are performed by members of such membership association who do not receive compensation of any kind from the membership association or any other entity for the performance of such duties.

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Massachusetts Smoke-free Workplace Law, effective July 5, 2004

661.100: Smoking Restrictions in Membership Associations

Smoking shall be prohibited in an enclosed indoor space of a membership association during the time that the space is:
1. open to the public. A membership organization shall be regarded as open to the public when it has signs or advertising inviting or encouraging non-members to enter the premises or takes other action that may reasonably be regarded as inviting or allowing non-members to enter the premises;
2. occupied by a non-member who is not a guest. A non-member shall be regarded as a guest if entering the premises:
  1. accompanied by a member, provided the member remains on the premises while the guest is present; and
  2. signing a guest register that clearly specifies the name and address of the guest and the inviting member;
3. rented from the association for a fee or other compensation; or
4. occupied by a contract employee, temporary employee or independent contractor.
Smoking may be permitted if the premises are occupied solely by the following:
1. members of the association. A person shall not be regarded as a member if entering the premises under terms of a membership that differ in duration, cost or privileges from the terms of a full membership in the association;
2. one or more salaried employees of the association;
3. invited guests of the members, as determined in accordance with 105.661.100(A); and
4. visiting members of an affiliated chapter or branch of a fraternal lodge organization.
Smoking may be permitted in a distinct part of the premises of a membership association, provided that this part:
1. is physically separated from any area open to the public or occupied by a non-member who is not a guest. The separation shall be sufficient to prevent any migration of smoke into the public area. Any doors separating the areas shall be self closing;
2. is occupied solely by those persons specified in 105 CMR 661.100(B). The membership association shall adopt and effectively implement a policy that ensures only such persons are permitted to enter the part of the premises where smoking is permitted; and
3. there are no signs inviting or encouraging the public or non-members who are not guests to enter.

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