New York Judge says, ‘Vaping is NOT smoking’

vaping is not smoking

A New Yorker by the name of Shawn Thomas takes his vaping very seriously.   On the evening of June 8, 2015, Thomas was spotted by a police officer vaping in the Nevins Street subway station in Brooklyn.   After declining to provide proper identification and shouting a few, choice expletives, Thomas was arrested and charged with several offenses.  He received citations for Disorderly Conduct under the Penal Law, Disorderly Conduct under the New York City Transit Authority Rules of Conduct, Obstructing Governmental Administration in the Second Degree, and violating the New York Smoking Restrictions, commonly referred to as the Clean Air Act.  Now that is one, diehard vaper.

Rather than paying a fine and putting the whole incident behind him, Thomas decides to take his case to court.  Attorneys for the state argue that Officer Alexande Miroshnyk and his superior, Seargent Eill, were only following the law, stating:

“The courts of New York have yet to make a determination as to whether electronic cigarettes are to be viewed any differently under (the law) than tobacco cigarettes”

Perhaps this was not the best side of the argument, because the judge believes that this lack of clarification is precisely the reason that the case should be thrown out.  On February 5, 2016, The New York Court of Appeals rules that current legislation specifically defines smoking as “the burning of a lighted, cigarette, pipe or any other matter or substance which contains tobacco.”  Since Thomas’ vaping device was tobacco-free at the time of the arrest, the law simply does not apply.  The judge went on to say,

“An electronic cigarette neither burns nor contains tobacco…Instead, the use of such a device, which is commonly referred to as ‘vaping,’ involves the inhalation of vaporized e-cigarette liquid consisting of water, nicotine, a base of propylene glycol or vegetable glycerin and occasionally, flavoring.”

What does this mean for the New York vaping community?  Will vaping enthusiasts be hitting the streets in huge numbers with vape mod in-hand and blowing massive plumes of their favorite e-liquids?  Will Manhattan evolve into total anarchy?

According to the state judicial system, vaping in NOT smoking.  It is perfectly legal to vape in public, for the moment.  Although private establishments like nightclubs and restaurants can still create and enforce their own vaping policies, there seems to be nothing stopping New Yorkers from vaping in subways or other public forums, thanks to Mr. Thomas.  But the anti-vaping activists are still very much resentful over the judge’s ruling.

In fact, just ten days after Thomas’ arrest, state legislators knew that they had a problem.  On June 18, 2015, the New York State Assembly approved an amendment to the Clean Air Act called Bill A05955.  However, the bill never made it past the state Senate.  A new version of the bill was sent to the Assembly floor once again on January 6, 2016.   While the current ruling in the case of The People vs. Thomas gives vaping advocates new hope, the threat of newly amended legislation banning vaping devices is still very strong.

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