SR-8-B (14)
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CA:RMM:rmsmoke1
CIty CouncIl MeetIng 3-26-85
Santa MonIca, CalIfornIa
STAFF REPORT
a-B
"AR 2 6 1995
TO.
Mayor and Clty Councll
FROM:
CIty Attorney
SUBJECT:
OrdInance Adding Chapter 9A to Artlcle
IV of the Santa Monica Munlclpal Code
Regulating Smoklng In PublIC Places
and Places of Employment
At its meetlng on December 11,
1984, the CIty CouncIl
dIrected the CIty Attorney to prepare an ordlnance regulatIng
smokIng In publIC and prIvate places
In response to thls
dlrectlon, the accompanYIng ordInance has been prepared and IS
presented for Clty Council consIderatIon.
The proposed ordInance adds Chapter 9A to Artlcle IV of
the Santa MonIca MunIclpal Code.
At the same tIme, the
ordlnance repeals existIng provIsIons of the MunICIpal Code
relatIng
to thIS subJect.
The provIsIons repealed are
contaIned In Attachment 1.
SectIon By SectIon AnalYSIS
SectIon 4920. Declaration of Purpose.
The purpose of
thIS ordInance IS to promote the health, safety and general
welfare of the publIC by regulating smokIng In publIC places
and In places of employment.
SectIon
4921.
DefInItIons.
ThIS SectIon provIdes
defInItIons for words and phrases used in the ordInance
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IncludIng "employee," "employer," "place of employment," and
"smoke or smokIng."
SectIon
4922
General ProhIbItIons.
ThIS SectIon
delIneates those places In WhIch smokIng shall be prohIbIted.
Such places Include: portions of bUIldIngs open to the
general publIC for use as meetIng places, entertaInment arenas
and cultural display places; elevators; publIC restrooms,
unless separate smokIng and nonsmokIng faCIlItIes eXIst; areas
of health faCIlItIes open to VISItors; retaIl food marketIng
establIshments and pharmacIes. SmokIng IS to be allowed In
areas serVIng as a lobby or lounge, In food serVIce areas, and
In those areas speCIfIcally deSIgnated as smokIng areas.
SectIon 4923. Places of Employment. ThIS SectIon
reqUIres employers to adopt and Implement a wrItten smokIng
POlICY WIthIn one year of the adoptIon of thIS ordInance. The
smokIng POlICY shall Include these speCIfIC prOVISIons: a
prohIbItIon of smokIng In restrooms, elevators and nurses aId
stations;
the maIntenance of a contiguous nonsmokIng area In
cafeterIas, lunchrooms and employee lounges, a statement that
efforts shall be made by the employer to accommodate the
deSIres of both smokers and nonsmokers should any disputes
between the two groups arIse; the prOVISIon of a smoke-free
work area for nonsmokers to the maXImum extent pOSSIble
WIthout any oblIgatIon by the employer to Incur expenses; and
the postIng of "no smokIng" signs. The employer IS reqUIred
to send a wrItten notIce to all employees, and to all new
employees In the future, of the employer's smokIng POllCY.
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The employer has the authority to designate any work area as a
nonsmoking area. Should the employer fall to comply with the
above requirements, then the employer would be gUilty of a
misdemeanor
The time period for complYing with this reqUIrement IS
one year. The CIty Council Indicated a deSire to first
implement and reVIew work place requirements In City
employment before applYing them generally throughout the City
A resolutIon will be returned to the City Council In the near
future to Initiate procedures for CIty work place
reqUIrements.
SectIon 4924 Posting of SIgns. ThiS Section sets
forth the requirements tor the posting of signs by employers.
The "NO SMOKING" signs must be clearly VISible, legIble, and
located In conspicuous places so that It IS generally
understood that no smoking IS allowed In that area.
Section 4925. Exceptions. ThiS Section outlInes the
exceptions to the regulations set forth In thIS ordInance.
The prohibItIons set forth In SectIons 4922 and 4923 do not
apply to any enclosed offIce occupied exclUSIvely by smokers,
or to those portions of restaurants, bars or hotels where food
or alcoholiC beverages are served to the publIC.
Section 4926 Penalties. ThIS SectIon prohIbIts the
mutIlation of any no smoking SIgns and the smoking in a
no-smOking area. An employer IS prohibIted from
discriminating agaInst any employee who exercises his or her
rIghts under thiS ordInance, and should the employer do so, he
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or she would be committing a mIsdemeanor. This SectIon also
states that except where otherwIse stated spec1fIcally,
vIolatIons of any provIsIon of thIS ordlnance are lnfractIons.
Sectlon 4927. Enforcement. ThlS SectIon provides for
ClVll enforcement of the ordInance. The prevailing party In
such a lawsult would be awarded attorney's fees when the
actIon
was
by
an
employee
allegIng
retaliation or
dIscr1mInatlon for exerCISIng rIghts under the ordlnance.
Comments
A draft of the proposed ordInance was maIled to var10US
IndIvIduals and organIzatIons expreSSIng an Interest In the
sUbJect matter. (See Attachment 2.) WrItten comments were
receIved from the folloWIng organIzatIons and are set forth In
the attachments to the Staff Report:
1. CoalitIon for Clean All' (Attachment 3).
2. American Heart AssocIat1on (Attachment 4).
3. CalIfornians for Nonsmokers' Rights (Attachment 5).
4. The Tobacco InstItute (Attachment 6).
The following summarIzes the comments and the City
Attorney's response.
lobby
areas
CoalItIon for Clean All' (CCA)
CCA requests that smokIng not be perm1tted In
as permItted by subdIVISIons (a) and [b) of
1. The
SectIon 4922. In response to thIS comment, lobby areas have
been deleted; however, smokIng IS permItted 1n a separate
lounge area prOVIded there are both smokIng and nonsmokIng
lounge areas.
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2. The CCA requests InclusIon of restaurants withIn the
places where smokIng IS prohIbIted. The Clty CouncIl
dIrectIon to the CIty Attorney was to exclude restaurants
3. The CCA requests that the work place restrIctIons be
Implemented within 90 days rather than one year. The reason
for the delay IS to permIt ImplementatIon and reView of work
place restrIctions by the CIty before Imposing the
restrIctIons on the prIvate sector
4. The CCA requests that the rIghts of nonsmokers be
gIven preference over smokers In resolVIng work place dIsputes
and that employees be gIven the rIght to desIgnate theIr
ImmedIate work area as nonsmokIng. The CIty CounCIl dIrectIon
to the CIty Attorney was to draft work place regulatIons
sImIlar to those adopted by the CIty of Los Angeles; neIther
of these two provISIons are contaIned In the Los Angeles
ordInance.
5. The CCA has requested clarIficatIon to SectIon
4923(a}(4}. The phrase ~good falthU has been inserted.
AmerIcan Heart AssociatIon
The only comment of the AmerIcan Heart ASSOCIatIon was
that the work place reqUIrements be Implemented WIthIn 120
days. As explained above, the longer tIme perIod IS requIred
for ImplementatIon and reVIew of CIty work place reqUIrements.
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CalifornIans for Nonsmokers' RIghts (CNR)
1. CNR requests InclusIon of restaurants wIthIn the
places
where
smoklng IS prohlblted.
The Clty CouncIl
dIrectIon to the CIty Attorney was to exclude restaurants.
2. CNR requests inclusion of all retail establIshments
within the places where smoKIng IS prohIbited. The CIty
CouncIl dIrectIon to the Clty Attorney dld not Include all
retail establIshments.
3. CNR requests that "employer" not exclude employers
of five or less employees.
The CIty Councll direction to the
Clty Attorney was to exclude such employers.
4 CNR requests that the work place requIrements be
lmplemented wlthln 90 days. As explained above, the longer
tIme perIod IS requIred for ImplementatIon and reVIew of CIty
work place requirements.
5, CNR makes the same comment as CoalItIon for Clean
All' concernIng preference to nonsmokers' rlghts.
6. CNR requests that all Violations be made an
InfractIon. In the oplnlon of the CIty Attorney, certaIn
Violations should be made a mIsdemeanor to ensure adequate
enforcement remedIes.
7. The requested change
made by addIng "work places,"
8. CNR requests that
to SectIon
4920(b) has been
whether
in or out of service.
smoking be prohibIted on buses
Any restriction on smoklng on
buses WhIch are out of SerVIce would be considered 1n any work
place restr1ctIons developed by the CIty.
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9. CNR's requested change to SectIon 4922(e) has been
made by Includ1ng restrooms prov1ded for use of customers Or
patrons.
10. CNR's requested change to SectIon 4922(f) has been
made to ensure that nonsmokers will have areas ava1lable 1n
hOspItal lounges and waItIng areas.
11. CNR's requested change to SectIon 4923(a)(4) IS
unnecessary.
12. CNR's requested change to SectIon 4923(d) has been
made so that It IS clear that an employer may designate the
entIre premIses as nonsmokIng.
The Tobacco Instltute(TI)
1 The TI Indicates that the fIndIng In the statement
af purpose that "[s}moklng IS a POSItIve danger to health" and
"a health hazard to those who are present In confIned places"
IS dIffIcult to JustIfy on the baSIS of eXIstIng SCIentIfIC
eVIdence.
ThIS fIndIng IS well supported by the WarnIng
requIred by the UnIted States Surgeon General on every package
of cIgarettes: "WarnIng:
The Surgeon General Has DetermIned
That CIgarette Smoking Is Dangerous to Your Health."
2 The TI belIeves that suffICIent remedIes eXIst to
protect employees from retalIatIon and that no local remedIes
are necessary.
In the opInIon of the CIty Attorney, the CIty
should be prepared to enforce Its ordinances In approprIate
CIrcumstances.
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RECOMMENDATION
It 1S respectfully recommended that the accompanY1ng
ord1nance be lntroduced for flrst read1ng.
PREPARED BY: Robert M. Myers, Clty Attorney
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CA:RMM:rmsmoke
CIty CouncIl MeetIng 3-26-85
Santa MonIca, CalIfornIa
ORDINANCE NUMBER
(CIty Councll Serles)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA ADDING CHAPTER 9A
TO ARTICLE IV OF THE SANTA MONICA
MUNICIPAL CODE REGULATING SMOKING IN
PUBLIC PLACES AND PLACES OF EMPLOYMENT
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN
AS FOLLOWS:
SECTION 1
Chapter 9A lS added to ArtIcle IV of the
Santa Monlca Munlclpal Code to read as follows:
Chapter 9A. RegulatIon of SmokIng.
SECTION 4920.
DeclaratIon of
Purpose. The CIty CouncIl of the City
of Santa MonIca fInds and declares:
(a) SmokIng is a POSItIve danger
to health and a cause of materIal
annoyance,
inconvenIence) discomfort
and a health hazard to those who are
present In conflned places.
(b) The publIC health, safety,
and general welfare of the reSIdents
of, persons employed In, and persons
who frequent the CIty of Santa MonIca
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would be furthered by the proh1b1t1on
and regulat10n of smoklng 1n publ1C
places and work places.
(c) Th1S Chapter regulates
smok1ng 1n publlc places w1thout
1mpos1ng exorb1tant costs on persons
In management and control of the
places so regulated.
SECTION 4921.
Def1n1t1ons
The
follow1ng words and phrases, as used
In
th1S
Chapter
shall have the
follow1ng meanings:
(a) Employee.
Any person who
1S
employed
by
any employer
1n
conS1derat1on
for
monetary
compensatlon or profIt.
(b) Employer
Any
person,
lnclud1ng
partnersh1p,
corporation,
mun1C1pal corporatlon} who employs the
serV1ces of more than f1ve persons.
(c) Place of Employment. Any
enclosed area under the control of a
publ1C
or
prlvate employer Wh1Ch
employees normally frequent dur1ng the
course of employment,
including, but
not limited to, work areas, employee
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lounges, conference rooms, and
employee cafeterIas. A prIvate
resIdence IS not a place of
employment
(d) Smoke or Smoklnq. The
carrYIng or holdIng of a lIghted pIpe,
CIgar or CIgarette of any kInd, or any
other lIghted smokIng eqUIpment or the
lightIng or emItting or exhalIng the
smoke of a pIpe, cigar or CIgarette of
any kInd.
SECTION
4922.
General
ProhIbItions.
It shall be unlawful to
smoke In the follOWIng places:
(a) Those
portIons
of
any
bUIldlng, structure or other enclosed
faCIlIty open to the general publIC
for the prImary purpose of holdIng
meetIngs
picture,
recItal,
or exhIbItIng any motIon
stage productIon, musIcal
or
SImIlar
performance,
exclusIve of sports events, other than
In a separate balcony area In WhIch
smokIng may be permItted and other
than In an area whIch serves as a
separate lounge area provIded that
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both smokIng and nonsmokIng lounge
areas are prov1ded.
(b) Those
port1ons
of
any
bU1ld1ng,
structure or other enclosed
faC1lIty open to the general publ1C
for the prImary purpose of a museum,
llbrary or gallery, other than 1n an
area which serves as a separate lounge
prov1ded
that
both
smok1ng
and
nonsmoklng lounge areas are provided.
(c) Any elevator.
(d) On any bus used 1n the
buslness of transport1ng passengers
for h1re 1n the C1ty, except1ng for
charter operat1ons.
(e) Any restroom open to the
general publIC or prov1ded for use to
customers or patrons unless there are
separate
smokIng
and
nonsmoklng
restrooms.
( f )
Those
areas
wIthIn the
bU1ldIngs or structures of any health
care
faCIlIty
WhICh are open to
VIs1tors to the premises except that
In such areas there may be enclosed
areas desIgnated and set aSIde on each
floor where smoklng may be allowed so
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long as comparable facllltles In WhlCh
smoking
is
not allowed are made
avallable or In any patlent room when
all patients smoke or consent to
smoking.
(g) Any retail food marketlng
establishments or pharmacles lncludlng
grocery stores and supermarkets except
those areas of such establishments set
aSlde for the serv1ng of food and
drink, offices, and areas thereof not
open to the publ1C.
SECTION
4923.
Places
of
Employment.
(a) Wlthln
one year of the
effective date of thIS ord1nance, each
employer shall adopt,
1mplement and
malntaln
a wrItten smoklng POllCY
Wh1Ch
shall contaln the following
minlmum provlsions:
( 1 ) The
prohlbltlon of
smoklng 1n restrooms, elevators and
nurses
ald
statlons
or
Slmllar
facllities for treatment of employees.
(2) The
proVlSlon
and
malntenance of a contiguous nonsmoklng
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area of not less than two-thirds of
the seatIng capacity and floor space
In cafeterIas, lunchrooms and employee
lounges.
(3) A statement provIdIng
that In any dispute arISIng between
smokers and nonsmokers, efforts shall
be made by the employer to accommodate
the desires of both smokers and
nonsmokers.
(4) A
smoke-free
work
areas for nonsmokers to the maXImum
extent possIble.
Employers are not
reqUIred to Incur any expense to make
structural
or
other
phYSIcal
modIfIcatIons In prOVIdIng these
areas. An employer who In good faith
makes reasonable efforts to develop
and promulgate a POlICY regardIng
smokIng and nonsmokIng In the work
place shall be deemed to be In
complIance
WIth
thIS SUbdIVISIon,
prOVIded
that
a
POlICY
WhICh
deSIgnates an entIre work place as a
smokIng area shall not be deemed In
complIance WIth thIS paragraph.
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(b) An employer shall post "No
Smok1ng" slgns In any area deslgnated
as a nonsmoklng area.
(c) The smoklng POllCY shall be
commun1cated In writlng to all current
employees wlthin three weeks of the
date of adoptlon, and to all future
employees at the tlme of their entry
into employment.
(d) Notwlthstandlng the above,
every employer shall have the
authorlty to designate any work area
or the entlre premlses controlled by
the employer as a nonsmok1ng area.
(e) An employer who fails to
adopt a smoklng POllCY, or who falls
to post slgns 1n any area deslgnated
as a nonsmoklng area as requlred by
subdlvlslon 1 shall be 1n violatlon of
sald subd1vls1on,
Such a v1olat1on
shall be punlshable as a misdemeanor.
(f) Those places 1n wh1ch
smoklng 1S proh1b1ted under Sect10n
4922 shall not be consldered places of
employment under thlS Sectlon.
(g) Employers shall Implement
the provlslons of thls Sectlon In a
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manner consistent wlth all appllcable
state or federal statutes,
rules or
regulatlons,
relatIons.
on
employer-employee
(h) For the purposes of thIS
SectIon, employer does not Include the
Clty of Santa Monlca
SECTION 4924 PostIng of Slgns
The person havIng the authorlty to
manage and control any area desIgnated
as a nonsmoklng area pursuant to
SectIon 4922 or SectIon 4923, shall
post or
prominently
cause to be posted and
dIsplayed, and shall
"No Smoklng" sIgns In
locatIons wlthln sald
such sIgns shall clearly
maIntaln
conspICUoUS
area All
and consplcuously reCIte the phrase
"NO SMOKING" and/or use the
lnternatlonal no-smoklng symbol. The
sIgns shall be posted not less than 5
feet nor more than 8 feet above floor
level
and shall be of suffIcient
number
and locatIon to cause the
message of at least one of the SIgns
to be clearly VISIble,
legIble, and
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readable. VIolatIon of, or faIlure to
comply
wIth thIS subsectIon IS a
mIsdemeanor
SECTION 4925.
ExceptIons
The
prohibItIons set forth In SectIon 4922
and SectIon 4923 do not apply to
prIvate
enclosed
.
offIces occupIed
exclusIvely by smokers even though
such an office may be Vlslted by
nonsmokers, or to those portIons of
restaurants, bars or hotels where food
or alcoholIC beverages are served to
the publIC.
SECTION 4926.
Penalties,
(a) No person shall wIlfully
mutIlate or destroy any sIgn requIred
by thIs Chapter
(b) No person shall smoke In
any area posted as a nonsmokIng area.
(e) No employer shall dIscharge
or In any manner dlscrlminate agaInst
any employee who exercises hIS or her
rIghts
under thls Chapter
If the
domInant Intent of the employer 15
retalIation agaInst the employee for
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exerclslng those rlghts.
Vlolatlon of
thls provlslon shall be a mlsdemeanor
(d) Except
as
otherwlse
expressly
provlded
for
In
thls
Chapter, Vlolatlon of any provlslon or
fallure to comply w1th any requIrement
of thIS Chapter IS an infractIon.
SECTION 4927.
(a) CIVIl
Enforcement.
ActIon.
Any
aggrIeved
person
may enforce the
proVlSlons of thIS Chapter by means of
a CIVll actlon.
(b)
InJunctlon.
Any person who
commIts, or proposes to commlt, an act
1n vIolatlon of thIs Chapter may be
enjoIned therefrom by any court of
competent JurIsdlctlon. An actIon for
lnJunctlon under thls subsectlon may
be brought by any aggrleved person, by
the City Attorney, or by any person or
entlty whlch wIll falrly and
adequately represent the lnterests of
the protected class.
(c) In any actlon under thls
Sectlon by an employee alleglng
retallatlon or dlscrlmlnation by an
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employer for exercIsIng rIghts under
th1S Chapter,
the prevaIlIng party
shall be awarded costs and reasonable
attorneys' fees
SECTION 2.
Sections 4235, 4235A, 4235B, 4235C, 4235D,
4237,
4238 and 4239 of the Santa MonIca MunICIpal Code are
hereby repealed,
SECTION 3.
Any prov1s1on of the Santa Mon1ca MunIcIpal
Code or appendIces thereto 1nconsistent wIth the provIsIons of
thIS ordinance, to the extent of such Incons1stencles and no
further,
1S hereby repealed or modIfIed to that extent
necessary to affect the prov1s1ons of thIs ordInance.
SECTION
4.
If any sectIon,
subsectIon,
sentence,
clause, or phrase of thIS ordInance 1S for any reason held to
be Inval1d or unconstItutIonal by a deCISIon of any court of
competent Jur1sdIct1on,
such decIs10n shall not affect the
valIdIty of the rema1n1ng portions of the ord1nance
The CIty
Council hereby declares that 1t would have passed thIS
ordInance and each and every sectIon, subsectIon, sentence,
clause, or phrase not declared InvalId or unconstItutIonal
WIthout regard to whether any portIon of the ordInance would
be subsequently declared invalid or unconst1tutIonal
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SECTION 5.
The Mayor shall slgn and the C1ty Clerk
shall attest to the passage of th1S ord1nance. The C1ty Clerk
shall cause the same to be publ1shed once 1n the off1c1al
newspaper w1th1n 15 days after 1ts adopt1on. The ord1nance
shall become effect1ve 30 days from 1ts adopt1on.
APPROVED AS TO FORM:
~ """"'. toO
ROBERT M. MYERS
CIty Attorney
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ATTACHMENT 1
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SEcrIOK 4235 Smoking In Public
PlacefJ. No person shall smoke am:
Clgars. cigarettes. tobacco or othE'r sub-
stance m any public place or portion
thereof where the smokl11g of such
Clgaxs, cigarettes, tobacco or other sub-
stance 18 promblted or restrlcted bv thiS
Code It shall be unlawful for any per-
son to VIolate thiS or any other section
of thIS Code prohlbltmg or restnctmg
the smokmg of CIgars CIgarettes tobac-
CO or other substance m a pIpe or other-
WlSe. or to fa1.l to comply wlth any
reqwrements of thIS or any other sec-
~lon of thIS Code relatIng to such smok-
mg Any person Vlolatl11g tius or anv
other section or proVlslon of tlus Code
prohlbltmg or restnctmg or relating to
the smokmg of CIgars CIgarettes. tobac.
CO or other substance 111 a pIpe or other-
\1l.'lSe. or failing to comply wlth any of
t~e mandatory reqUirements of any pro-
VISIons of thIS Code relatIve to such
SECTION 5 SECI'lO::-: 4235C No
Sntokm~ SIgnS ~o persons shall oper-
ate any JItney bus. motor bus or mter-
urban motor bus used In the bUSIness
of transportmg passengers for hire m
the City W1thout postmg therem a Sign
readmg "SMOKI:->G PROHICITED BY
SECTION 4235B OF THE SANTA
MONICA MUNICIPAL CODE"
smokmg. shall be gwlty of an Infrac-
'bon Any person conVlcted of an In-
fractIOn under the proVISIOns of thIS or
any other sectIOn of thIS Code rela tmg
to the smokmg of CIgars, CIgarettes,
tobacco or other substance m a pJpe or
otherWIse, shall be punishable by a fme
of not more than Twenty-fl"'e ($2500)
Dollars Each such person shall be guilty
of a separate offense for each and every
cornnusslOn of any VlolatlOn of any pro-
VISion of thiS or any other sectIon of
thiS Code prohlb]tmg or restrIctmg
smolung of CIgars, cigarettes. tobacco
or othe~ substance In a pipe or other-
"""lse IS comnutted, contmued. or per-
nutted by such person. and shall be
punIshed accordmgly
In addJ.tlOn to the penalties !-erem-
aho\'e prO\lded. any Cond]tlOn caused or
penn:tted to eXist In vlolat1On of the
prOVISlOns of tms or anv other sectzon
of thIS Code prolubltmg or restnctmg
the smokmg of cIgars, cIgarettes tobac-
Co or other substance In a pipe or other-
Wise. shall be deemed a pubhc nU1sance
8l1d may be, by thIS CIty, summa::'!lv
abated as such, and each day such Con-
dition cont:nues shall be regarded as a
new and separate offense
In the event of a conflIct between
the penalty prO"lSIO'1S of th$ ordmance
8l1d the penalt) prG\lS]~n5 of tt>e Um.
(onn Fire Code. tt-ose In the FIre Code
shall prevaIl Any ....101at1On of SectIOn
31CO of the Santa l'.:omca :.:unlclpal
Code shall remam subject to the penalt\"
proVISIOns of Section 1200 and Se~tlon
1201 of tt-e Santa MOnica ~Iuruclpal
Code not\>'"lthstanGlng tl-IS o:-dmance
SE(;.nON 4235D Smoldnat In Public
Places. An area contanung a number of
Beats equal to not less than elghty-fn-:e
(85%) percent of total seatmg capaCIty
shall be set aside as and for a no smok-
109 area to be located at the left slce,
facmg the front, of every meetmg hall.
audltonum or other place of pubhc
congregatIon own~, operated, or con-
trolled by the Clty of Santa MOnIca
Sald no smokl11g areas shall be so des1g-
nated No person shall smoke when QC-
cup:rIng a seat m, or otherwIse bemg
111 such a des1gnated no smokmg area
Nothmg herem shall prohlblt persons
from smokl11g whll.e occupymg a seat
at the City Councll table. wherever
located 1D saJ.d faCllltles
SECTIQ!'o; 4237 Responsibility by Bu
Dnver Xo person operating any JItney
bus.motor bus, Interurban bus or street car
used In the bUSiness of transportIng passen-
gers for hIre In the CIty shall pemut any per-
1I(Bl, whIle ndlng therem. to smoke any CIgars
or cIgarettes. tobacco or other substance In a
pIpe or otherw:lse, and It shall be the duiy of
such operator to remove from Bald vehIcles all
peTllOOl! refusmg to comply WIth thIS Code. or
cause such person to be unrnechately arrested
for BUch refusal
SECTION 4238 Sttlokmg m Theatres. An
area contammg a number of seats equal to not
less than elgh t} .Ih'e (85<k I percent of the total
seatlng capaCIty of any theatre or movmg PIC-
ture house. or of any portIon of any bUIlding
used for the productlon or exhIbmon of movmg
PIctUres. plays. operas. or other theatrIcal pro-
ductIOns. or SImIlar enterUunments. where
IIdmISSIon ]s charged shall be set aSIde ll!; and
for a no smoking area No person shall smoke
when OCcupYing a seat m. or otheT'A"lBe bemg
In such a designated no smoking area
SECTION 4329 Duty of Thutre
Operator It shall 00 the duty of evel')' peraon
owning. operatmg or controllmg. or In charge
of any such theatre or bUlldmg to malntam
SJglJ5 In conspIcuous places In and about such
theatres or bUlldzngs where an area has been
desIgnated as and for a no smokIng area stat-
Ing that smokmg IS therem prohIbited
SECTIOX 4235A Smokln~ Defmed
Smok:zng mcludes but is not lmuted to,
the btL'11mg of toba~co or any other sub-
stance or matenal. whIch has been made
mto a c]ga~ or cIgarette or WhICr- IS
placed in a pIpe or other holder. whether
or not the fUPles from such burnmg
CIgar, cigarette. pipe, or other holder
are mhaled by a person and subsequent.
ly exhaled
SECTIO:--: 42::5B Smokinl: on BUll
No person shall smoke any cIgars, cIg-
arettes, tobacco or other substance In
a pipe or otherWIse. whIle ridmg upon
or m any Jltne~. bu:;" mater bus or mter-
urban bus lied m the buszness of trans-
portmg- passengers for hire In the City,
exceptIng for Charter operatIons
'.
.
ATTACHMENT 2
.
.
.
ADDRESS LIST FOR SHOKING ORDINANCE
Mary Sandberg
Amerlcan Cancer Soclety
2975 Wllshlre Bouleva~d, SUlte 200
Los Angeles, CA 90010-1110
Bay Area Restaurant & Hotel Assoc,
721 Santa Monica Boulevard
Santa Monlca, CA 90401
Santa Monlca Chamber of Commerce
1460 4th Street
Santa Monlca, CA 90401
Santa Monlca Convention Bureau
1460 4th Street
Santa Monlca, CA 90401
St. John's Hospital
1328 22nd Street
Santa Monlca, CA 90404
Santa Monlca Hospltal
1225 15th Street
Santa Monlca, CA 90404
Amerlcan Cancer Soclety
Los Angeles Coastal Citles Unlt
6733 Sepulveda Boulevard
Los Angeles, CA 90045
Amerlcan Heart Assoclatlon
10546 West PICO Boulevard
Los Angeles, CA 90064
Amerlcan Lung Assoclatlon of Los
Angeles County
1670 Beverly Boulevard
Los Angeles, CA 90026
Southern Callfornla Restaurant Assoc.
448 S. HllI Street
Los Angeles, CA 90013
Callfornla Pharmaclsts Assoc.
555 Capltol Mall
Sacramento, CA 95814
1
,
.
.
John D Kelley
RegIonal VIce PresIdent
The Tobacco InstItute
1225 8th Street, SUIte
Sacramento, CalIfornIa
330
95814
CoalItIon for Clean AIr
309 Santa MonIca Boulevard
Santa Monlca, CA 90401
Donald LeWIn Nelson
1251 14th St,
Santa MonIca, CA 90404
DaVId Pasternak, Esq.
Tyee, KamIns, Katz & Granof
1800 Century Park East, 10th floor
Century CIty, CA 90069
Dr. Stanley RubIn
2522 WashIngton Avenue
Santa Monlca, Callfornla 90403
Irene Peterson
204 WashIngton Avenue, Apt. 101
Santa Monica, CalIfornIa 90403
2
.
.
ATTACHMENT 3
.
COAllllON FOR CltiN AIR
309 Santa MOnica Blvd. Suite 212
Santa Momca, CA 90401 (213) 451-0651
.
...... 28
March 19, 1985
Rob e r t M ~f y e r S
Clty Attorney
1685 Malfi Street
Santa Monica, CA 90401
Dear Mr. Myers,
The Coalltlon For Clean Air strongly supports the
passage of a srnoklng ordlnance for the Clty of Santa Monlca
WhlCh lncludes restrlctlons on smoklng ln the workplace, and
we welcome thlS opportunlty to comment on the draft
ordlnance. A smoking ordlnance lS needed in light of the
eV1dence released by the Unlted States Surgeon General on
the effects of IIpassive" smoking. Whlle we feel that this
draft ordlnance 1S well lntended, we do wlsh to make several
changes that w1ll strengthen the ordlnance In order to
protect the health of the nonsmoklng publlC.
1) Sectlon 4922 (a) and (b) - Smoke affects nonsmokers
whether lt 15 ln the maln auditorlum or in the lobby, and
people ~ cross the lobby ln order to get to and from the
maln audltorium. Lobbles or lounge areas are often the most
srnoke-fllled areas of publlC places. There are few thlngs
more annoying to a non-smoker than walking lnto the foyer of
a publlc establlshment and belng assaulted by a cloud of
clgarette smoke. Very sensltlve people often cannot walk
through the entrance way, or leave thelr seat during
intermlsSlon, wlthout feellng slck. Therefore, we feel that
the phrase "other than 1n an area WhlCh serves as a lobby or
lounge area" should be removed from section 4922 (a) and
4922 (b).
2) Sectlon 4922 (g) - It makes Ilttle sense to prohlblt
smoklng In grocery stores where food 15 kept but not eaten,
and yet not prohlblt It In resturants. or at least insure
that some parts of resurants are smoke free. Many people
llterally cannot eat whlle others are smoking, and
resturants often produce the most vol1tile confrontatlons
between smokers and nonsmokers because feellngs run so hlgh.
REmemOO'?
'..
~
--'""
-
-
--
~~ -..
Page 2
Robert Myers
3/19/85
.
.
The phrase "except those areas of such establishments set
aSIde for the serving of food and drink. ." should be
deleted.
EatIng establIshments should be considered non-smokin~
wIth smoking areas desIgnated If desired. A section to
thIS effect should be inserted. We suggest the followIng
wordIng modeled on sectIons used In Palo Alto and Pasadena:
"SmokIng is prohIbIted and IS unlawful in every publicly or
privately owned coffee shop, cafeteria, short-order cafe,
lucheonette, sandwich shop. soda fountlan. restaurant, or
other eatIng establishment serving food whose occupied
capaCIty IS fIfty or more persons, excludIng from that
calculatIon of capaclty any portIon of such facility WhlCh
IS located outdoors and any portion of such faCIlIty which
IS utlllzed for bar purposes. However. any such
establishment may malntain a contlguous smokIng area of not
more than one-third of both the seatIng capacity and the
floor space in whIch customers are being served. excluding
from sald calculatIons any portion of such faCIlity which IS
located outdoors and any portIon of such faCIlity which is
utilized for bar purposes. The above smokIng prohlbltion
shall not apply to any rooms whIch are beIng used for eatIng
establlshment purposes for prIvate functions, but only whlle
any such room lS used for such private functions. At the
request of a patron. the patron shall be seated In a smokIng
area, If avaIlable."
WIth the addItion of thlS sectIon a definitlon of bar
must be added to Sectlon 4921. We suggest the following
wording: ""Bar" shall mean an area which 1S devoted to the
serVIng of alcohollc beverages and in whIch the serVlce of
food IS only inCIdental to the consumptlon of beverages."
AddItIonally, Section 4925 must be changed to delete the
exceptIon for restaurants. It should read: "The
prohlbitlon set forth in SectIon 4922 and 4923 shall not
apply to private enclosed offIces occupled exclusively by
smokers even though such an offlce may be viSIted by
non-smokers."
3) SectIon 4923 (a) - There is no reason why the
implementatlon of a smoking POllCY should require one year.
Other cities, including Palo Alto and Pasadena, allow ninety
days, whlch IS a suffIclent amount of time. 4923 (a) should
be changed to read "WithIn nlnety days of the effectIve date
of thlS ordinance . "
4) Section 4923 (a)(3) This is perhaps the most important
sectlon of the entire ordinance. Tragically, the way It 1S
wrItten now makes the entIre Section 4923 Ineffectual.
Statlng that the employer should accomodate both the deSIres
.
.
Page 3
Robert Myers
3/19/85
of the smoker and non-smoker, is statlng nothing. This is
the sltuatlon currently, w1thout the law. If the lntent lS
to protect the public health, and there lS a rlght to
breathe clean alT, then the rights of the nonsmoker must be
given precedence. The following, or similar, wording mus~
be exchanged for the current word1ng of 4923 (a)(3): "A
statement that in any dlspute arising under the smoking
pollcy, the rlghts of the nonsmoker shall be given
precedence." Otherw1.se, the ordlnance lS mean1.ngless.
To further protect the rlghts of the nonsmoker, we
suggest the insertion of a sect1.on that gives any employee
the rlght to designate h1.S or her immediate area as a
nonsmoking area. The following wordlng based on the Palo
Alto ordinance, or SlID1lar wordlng 1S suggested: "Any
employee In the off1.ce workplace shall be given the right to
deslgnate hls or her immedlate area as a nonsmoking area and
to post It with appropriate slgns or 51gn. The policy
adopted by the employer shall include a deflnition of the
term lmmedlate work area whlch glves preferentlal
conslderation to nonsmokers."
5) Section 4923 (a)(4) - For clarlflcation, and to close
any loopholes, the followlng words (which are underlined)
should be added to (a)(4): "A smoke-free work areas for
non-smokers to the maXlmum extent posslble. Employers are
not requlred to incur any expense to make structural or
other physlcal modlflcations in providing these areas. An
employer ~ho 1n ~ood fa1th makes reasonalbe efforts within
the lntent of thls ordlnance to develop and promulgate .
.etc."
6) Sectlon 4926 (c) - Flnally, we support the City
Attorney's designation of any v1olation of this prOV1Slon as
a mlsdemeanor.
The Coalltlon For Clean A1r is a nonproflt,
cltlzens' organization ded1cated to the elimiation of alr
pollution, both lndoor and outdoor. If you have any
quest10ns about our comments or our organ1zation, please
feel free to call me. Please send us a copy of the flnal
draft. Thank you for your conslderation of these comments.
Slncerely,
-./
!" " -" no ~
t".-, i I ~. -") I '_
~ .'~~
.-'"'.
-~
Nancy\~othenbetg-Landis
Research ASsoclate
.
ATTACHMENT 4
.
"
OFFICERS 1984-85
Clalo Seeder
Chairperson
LoUIS Acosta M D
Medrcal Vice ChaIrperson
Freddl Haymaker
No~MedJcal VIce Chairperson
Lisa Greene
Secretary
Richard Gray, M D
Treasurer
.
AMERICA. t
ASSOCI~~ VREATER LOS ANGELES AFFiLIATE
INC
WESTERN DIVISION
10546 WEST PICO BOULEVARD, WEST LOS ANGELES. CALIFORNIA 90064
(213) 20-HEART 870-4433 645-2210
}OIa r chI 8, 1985
Robert H. Myers
City Attorney
1685 Main Street
Santa Monica, CA 90401
Dear Mr. Myers:
Thank you for provlding the American Heart
Association with a copy of the proposed Santa Monica
Smoking Restriction ordinance and the opportunity to
review and comment prior to its first reading on
March 26, 1985.
It is the consensus of key volunteers and staff
here that the draft ordinance clearly meets the stan-
dards of the American Heart Association, with one
caveat: we would greatly prefer to see the implemen-
tation timeframe shortened from the one year presently
allowed in this draft to the 120 days as called for
by the recently adopted City of Los Angeles ordinance.
With that one comment duly noted, we wish to praise
the Santa Monica City Council and staff for its timely
action in this critical area of public health, and
add that we would be delighted to see this ordinance
adopted and implemented as soon as possible.
Please do not hesitate to contact this office
should you wish additional input, or elaboration of
the above.
Sincerely,
{;ItA,.. (3e-~
Clain Beeder
Chairman, Western Division Governing Board
cc: Jackie Greenstein
~anager for Public Affairs
A.H.A. - Greater Los Angeles Affiliate
I"vest In Hearl Research Remember a loved one with a Me,.."onal Gift
.
ATTACH:1ENT 5
.
~
Slonlon ^ GIontt f'll 0
'JIce P'I'NIOenb
0<:Md Sums M D
wglntCI EITIIIer Ph 0
[Xmtel H LOWlHl$lein
Howard Mrtchell
Raymond L W9t5tlerg M 0
TIMl...-J
Irene Peterson
IOARD Of DIIICTORS
Waif IIlJolSky
Rogeo- DIamond
Michael P Enkwn Sc 0
Robell Fries
Peter Hanauer
Jo/1n Holtzclaw
PhIlip R lee M D
Paul l Love<IOV
Memll J Matchett
Andrew McGuIre
E RIchard Mertz Ph 0
John Ne.a..... M 0
Edward 0 Dwyer
Alan SchOU! P'rl D
Lowell Young
HONOQAIl'I' IOARD
Ansel Adams
WIlham E B&oornIield Sc
PreSIdent Wee Ser"''CB Co
Lester 8teSlow MOM P H
?roleSSO' cJ "..>DoC "",,'''' '~iClA
Clarence Heller
Allan K )On<lS
J MIChael McCloskey
&ecl,,'!IVB C..rector S=errc Cvo
)ernes P McLoughlm
Oos- '::'-es.cen~
l.Tyterj food & Cor-'me'C1cl
'/--;or\I.ers L.-o')!cr :...o-::o.l 425
lmus Po ullng
"JC.Oe1 LCLreare
,A.rtt\urRocl<
Sonley Shelnbour1
MeNVl"\ f SiNermar'l MOM P H
:),rec-::.r of I,eo:tn Son ~::;JncISC-::
.Jesse L Sle..,reld M 0
US 5.....!~. Ge..-..arc. 1,96Q -';Q'3.
Luther TefT'( M 0
LIS Su.~ Gene'" '91>' 190.;
Executive Dl...aor
MIChael C Gnmes J 0
a..glslaltw OIrec:to1'
Chanes MoW\On
~
I'e5nsmok~s Rights
WESTSIDE AFFILIATE (213) 395-8069
P.O. Box 3225, Santa Monica, CA 90403
Robert n. Myer5
C1t.V Attorney
1685 Ma1n st._
~anta Mon1ca~ CA. YU1Ul
Dear Mr. Myers.
We have reuieyed ~he proposed ordinance regulat.1ng sMok1ng
1n publ1c places and 1n places of eMploYMen~ as drat~ed by
your ott1ce at the request. of~ and Y1t.h the suggest.1ons ot,
Counc~IMan Eps~ein and the Santa MOn1ca C1ty Counc11. The
proposed ord1nance is an excellent p1ece ot leg1slat1on
yh1ch 1s intended ~o M~t1gate the health hazards and ~he
ser10US annoyance and inconven1ence ot second-hand SMoke 10
t.he yorkplace and in PUblic places. Ue sugge5~ that L1ty
Council cons1der the tollQY1ng Mod1ticat1ons, Wh1Ch would
1Mprove t.his pend1ng legisla~1on.
Specif1c 1ssues=
non-5Mokers~ right.s 10
ord1 nance .
1. Protect1on ot
Ment.ioned ~n the
a. Restaurants
b. Additional reta11 outlets
2. Redet1n1t1on of an eMployer
a. No layer l1M1t on the nUMber of eMployees as the
def1n1t10n of an eMployer
3. Reduce delay in the iMpleMentation of the ord1nance troM
~Yelue Mont.hs to three Mont.hs
~. The design ot~ and legal 1ssues ot ~he ord1nance
a_ Resolu~10n ot sMokers7 and non-sMokers7 r1ghts 1n tavor
at the non-sMoker
b. Infract10n should be the exclusiue pun1shMent used 1n
th1s ord1nance and not M1sdeMeanor
c. Ueclarat.10n ot purpose should be broader
places not currently
Rnpl1t1cation of spec1t1c 1ssues=
I. Protect1on at non-sMokers' rights 1n places not. currently
nent.10ned in the ord1nance.
a. Restaurants:
Santa Mon1ca has a uery large populat1on of restaurants
which are frequented by the C~t~z~n5 ot Santa non~~a and the
bay reg1on~ who deserue protection frOM t.he health hazards
and ~nconuen1ence ot 5econd-hand SMoke. Kecently. Most
c1ties and count1es haue recogn~2ed t.hat SOMe attent.ion
should be g1uen to th15 Matter in ord1nances designed t.o
prot.ect. ~he non-SMoker. The OppoS1t.1on of the restaurant
assoc1ation t.ends t.o be react10nary. They appear to be
unayare that a Roper poll has found t.hat t.he MaJor1ty of
AMericans do not ~ant to be exposed to second-hand SMoke in
restaurant.5~ and t.hat. the public decreases the~r use of
restaurants 10 which they are not protect.ed troM second-hand
SMoke. Ue propose that.
.
.
--H section be added to the ord1nance Wh1Ch w11l address the need
to protect non-sMokers 1n restaurants and bars
--That a restaurant be det1ned as a pub11c eat1ng establ1shnent
Wh1Ch seats 50 or More persons
--That the City Manager be instructed to prepare a report on the
status ot non-sMok1ng sections in restaurants Within ~U days ot
the adopt10n ot the proposed ordinance_ The data to be included
in thiS report Will show the extent ot voluntary cOMpliance by
restaurants at the protection at non-SMOkers, by reporting the
nUMber ot restaurants WhiCh have non-SMOKing sect10ns and the
percentage Size ot such sections
--That 1t less than one-halt at restaurants so-detined do not
have a section wh1ch aCCOMModates non-SMokers, then all
restaurants shall set-aSide at least ~U7. at their seat1ng
capac1ty tor non-sMokers_
b The currently proposed ord1nance does not prov1de tor the
protect1on at non-SMokers' Fights in reta1l establishMents other
than that provided tor 1n tood Markets and pharMaCies. Iheretore
we propose that Section ~9ZZ, paragraph <g) be altered to include
any and all retail establ1shMents_
--The MaJor1ty ot the Clt1zens at Santa Monica, espeCially
1nclud1ng children and hOMeMakers, are not eMployed in regular
ott1ce work and theretore would not be provided the protection ot
the workplace ord1nance_ The Most frequent and daily exposure to
second-hand SMoke that these people Fece~ve is in retaIL
establ1shMents_ The Medical evidence of the epldeM~c ot lung
cancer in WOMen, and the 111-eftects at second-hand SMoke 1n
children prOMpts us to plead their case tor th1S protect~on_
--The reta11 establishMent prOVISIon ot other MuniCipal
ordInances has been aMong the MOSt WIdely accepted and welCOMed
prov~s1on by the bus~ness COMMunI tv, and therefore also aMong the
eaSIest ot the prOViSIons to 1MpleMent_
L_ In order to protect the health ot eMployees ot SMall
COMpanIes. change the def1nlt10n ot eMployer as currently detIned
In ~ect1on ~~Ll. paragraph (b>, by delet1ng the underlIned as
tol.lows:
(b) EMployer_ Hny person, partnership, corporation , 1nclud~ng
MuniCIpal corporat1on~ who eMploys the serV1ces of More than fIve
persons_
The vast MajOrity at eMployers
probably even More so in Santa
eMplayees_ We MaIntain that:
--The health at an eMployee should not depend on
t1rM_ Health regulatIons do not routInely exeMpt
S1ze_ For exaMple, SMall restaurants Must COMply
strIngent health standards as large restaurants, even though the
nUMber of patrons served IS sMaller_
--EMployees 1n SMall firMS May not be able to redress their
gr1evences agaInst the harMful eftects ot second-hand SMoke to
the saMe extent that eMployees can in large tIrMS_ Large
COMpanIes have dev1sed personnel polICies and procedures tor
taIrly adJud1cating the grIevences of eMployees~ ~h1le SMall
t1rMs usually do not have such caretully des1gned sateguards and
1n Los Hngeles County, and
Monica~ eMploy a SMall nUMber
ot
the S1ze ot a
by v1rtue ot
....'1 th the saMe
~
.
.
guarantees Therefore, It IS necessary to provIde legIslatIve
sateguards regardIng health pOl1CV tor such eMployee5_
--MunIcIpal ordInances In other cItIes and countIes have
consIstently recognIzed the health hazards ot second-hand SMoke
tor eMployees ot both SMall and large cOMpanles_ We kno~ ot no
other legl51atIon. ~Ith the recent exceptIon ot the Llty at Los
Hngeles, ~hIch exeMpts SMall eMployers troM protectIng the health
ot eMployees_ ~ven In Los Hngeles. the detInItlon at an eMployer
IS one ~ho eMploys More than four EMployees_
--Cost consIderatIons do not apply_ Hs the legIslatIon has been
drafted, In ~ectlon ~923, paragraph ~. no eMployer large or
snaIL. IS ___ reqUIred to Incur any expense to Make structural
or other phYSIcal ModItIcatlons In provIdIng these lnon-SMoklngJ
areas
3_ Change the ettectIve date ot the ordInance as speCIfIed In
~ectIon q9~3, paragraph <a) troM (a)Wlthln one year of the
effectIve date of thIS ordlnance___ ,to (a) WIthIn three Months
of the effectIve date of thIS ordInance___ We MaIntaIn that.
--T~enty seven governMental unIts at the LIty and Lounty level In
the ~tate ot Lalltorn18, ~hlCh cover apprOXIMately seven (7)
MIllIon peopl~. have adopted SIMIlar leglslatlon_ Ihey have not
encountered any dIffIculty In the IMpleMentatIon of these
ordlnances_ The proposed legIslatIon IS not experIMental Dr
extraord~nary, has been trIed and found successtul In Many
SIMIlar CIrCUMstances, and should not be conSIdered as health
legIslatIon WhICh requlre5 experIMentatIon, testIng or
retlneMent_
~-EaFly IMpleMentatIon ~ll1 actually ease the acceptance ot thIS
IMportant publIC health POlICY leglslatlon_ The publICIty,
attentIon and ~nterest ~hlCh WIll occur In the next teu weeks as
Llty LouncI1 prepares passage ot thIS ordInance, IS an ettectIve
educatIonal tool_ ThIS can then translate ~nto an Byareness on
the part ot the publIC, retaIL bUSInesses, eMployers and
eMployees, and a preparatIon tor ~MpleMentatl0n. ThIS edge In
preparedness IS lost If a substantIal delay ot IMpleMentatIon
occurs, and WIll reqUIre extra ~ork WIth respect to notIfIcatIon
and educatIon.
--Based on publIshed data, an extra delay frOM three to t~elve
Months In the IMpleMentatIon of the ordInance ~111 expose a
nUMber ot thousands ot eMployees to the health hazards ot
second-hand SMoke In our opInIon, thIS represents an
overcautIOUS IMpleMEntatIon WhICh WIll result In unconSCIonable
adverse health ettects_
q_ DeSIgn and legal Issues ot the ordInance
a ResolutIon ot SMokers and non~sMokers~ rIghts In favor of
the non-sMoker_ ~ectlon q923, paragraph a). subparagraph ~) MUSt
be re~rltten frOM Its current torM and should state that in any
dIspute _the rIghts ot non-SMokers shall be gluen precedence_
--The current language conSIderably yeakens thIS ordInance, IS
not the correct language to use ~n order to protect non-sMokers~
rIghts, ~111 ~eaken any court challenges to the ordInance and 15
actually In conflIct ~Ith subparagraph q)
'.
.
.
--Ou~ p~oposed wordIng IS the actual wordIng ot a nUMber ot
ordInances, has proven to work well, and IS actually the
IntentIon ot thIS ordInance as stated In the UeclaratIon of
I-'urpose_
b_ IntractIon should be the exclUSIve punIshMent used In thIS
ordInance and not MIsdeMeanor. We do not condone entorceMent of
the prOVISIons of thIS ordInance through severe punIshMent, but
rather through educatIon, persuasIon and SOCIal acceptance.
SectIon ~9L3, pa~agraph g) should Make workplace VIolatIons an
InfractIon and not a MIsdeMeanor, and ~ectlon ~9Z~ should Make
SIgn-postIng VIolatIons an InfractIon and not a MlsdeMeanOF_
--These concepts of pe~suaslon and educatIon are the hallMarks ~t
the reasonable attItude that the non-SMokers' rIghts MoveMent has
adopted In dealIng WIth the MInorIty of the populatIon who are
sMokers_
c_ Oecla~atlon of purpose should be broader_ ~ectIon ~9L3,
parag~aph b) should be broadened at the end by statIng that
publIC health, safety and general welfare ___would be turthered
by the prOhIbItIon and regulatIon ot SMokIng In publIC places and
work places.
C&~lncerelY' ~
., ^ ~ 11
~/ I I . 1 0
\ . I" \: ; J '
,JLYX;", ,~N-Z/"()\
t~nl~. RubIn, M.D.
MeMbe~, Soard of DIrectors
L5Z2 WashIngton Hve_
~anta MonIca, LA. ~u~u~
~~~m~_~
Irene Peterson
Treasurer
204 WashIngton Aue_ VIOl
Santa MonIca. LA. ~U4U~
cc: touncl1pe~son DaVId Epste1n
Mayor lhrIst1ne Keed
.
., .
~
Stonton A Glantz Ph D
"'- ~
~o BI.Irns MD
V1rglnoo Ernstel Ph 0
Daniel H Lowenstein
Howard Mitchell
Rcymona L WEttSt>erg M 0
rr.a~,
Irene Paterson
IOAIO OF DIIlECTORS
Walt llIIohky
Roger D1omono
MIChael P Enksen Sc D
Robe<1 I'nes
PeTer Honouer
John Holt~clow
PhiliP R Lee M D
Paul L lOYedoy
MeIT'I J MolcheN
Andrew McGuIre
E Richard Mem PI"l D
John NeYOrQ M 0
Edword 0 D<tyer
Alcn Schnur Ph D
lowellYoung
HONOt2AJlV IOAKl
Ansel Aooms
Wilham E Blcomlield 51
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les:er Bte.:ow M D M P H
~essvr Of ~bl'C Weal...... '...CLA
Clarence Helle,
Allan K JaMS
J MlChQel McClOskey
~:f~-e :>rec~:)a" Se-::: Crub
James P Mctougl'llin
Pest '='res;aer.
Lrlrec ;occ ~ :::Of'T1me~IO
'Jvc,.n.:ers ,In.o.... !..X::::Ji 42~
LInus :>Ouling
~I ~CLt'9C"'e
Antu.., ~ock
$ranfey SI1emOOlif"l
Mervyn F Si"",,rmon M 0, M P H
C-rac"~ cI -...eo'1"-' Set"- ;::ranclS::c
Jesse L Sletl1feld M!)
:.,- S 5l..r~ <;e....-erOf Hi$ '973
lu1het' TalTY M D
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~
f\i)nsmokets Rights
WESTSIDE AFFILIATE (213) 395-8069
P.O Box 3225, Santa Monica, CA 90403
March 19, 1985
Robert J>.1. Myers
C~ty Attorney
1685 Ma~n Street
Santa Mon~ca CA 90401
Re: Proposed Smok~ng Ord~nance
Dear Mr. Myers:
Th~s letter supplements the letter s~gned by myself
and Dr. Rubin, Wh2Ch addresses substant2ve matters
connected w~th the ordinance proposal.
The deta~ls covered by th~s letter are more technLcal
in nature. I hope that separat~ng the two types of
comments will make ~t more conven~ent for yOU4
References are to the draft marked "C~ty Counc~l
Meeting 3-26-85."
1. I request that subsection 4922 (d) be changed to
read as follows:
"(d) On any bus used ~n the bus~ness of transportlng
passengers for h~re ~n the C~ty, whether ~n or out
of serv~ce, except~ng for charter operat~ons."
The reason for th~s request 1S that the current rules
of the Santa Mon~ca Mun1c~pal Bus Lines ~s to allow
employees to smoke on the bus so long as ~t ~s not 1n
serVlce. Thls means that the drlver f~lls the bus w~th
smoke before star~ng h~s run; then pulls up the f~rst
stop and p~cks up h~s passengers, who are exposed to
a good concentrat10n of SMoke from the t~me they enter
the bus. Nausea, headache, and other reactlons to s~oke
are not m~t~gated by the fact that the smoke was produced
before the bus went ~nto serVlce.
2. I request that subsection 4922 (e) be changed to
read:
H(e) Any restroom ooen to the general publ~c or
prov~ded for the use~of patrons of a business,--
unless there are separate smoking and non-smok~ng
restrooms. II
Although patrons of a store or restaurant have some
capablllty of avo~dlng smoke in the rnaln facllltles,
I
~:
.
.
Robert M. Myers
March 19, 1985
pa ge 2
they often have no cho~ce but to use the restrooms, and
smoke concentratlon is much greater ~n small spaces. Th~s
~s a serious problem for many people who have oomplalned
to us.
3. I request that subsect10n 4922(f) be changed to read~
"(f) Those areas w2th2n the bUlld~ngs or structures of any
health care fac~l~ty wh~ch are open to v~s~tors to the
premlses except that ln such areas there may be enclosed
areas des~gnated and set aS2de on each floor where smok~ng
may be allowed, so long as at least equal facillt~es
~n wh~ch srnok~n9 ~s not allowed are made ava~lable, or
~n any pat~ent room when all pat~ents smoke or consent to
srrok~ng."
The Current draft leaves v~s~tors w~thout any protection
unless they stand ~n the hallways. When my husband was dy~ng
in an ~ntens~ve care UTIlt, the only lounge avallable was one
in wh~ch snok~ng was perm~tted. My s~ster-~n-law ~s sens~tlve
to smoke and develops severe symptoms ~n reactlon to ~t. We
were unable to f2nd any place on the floor other than the
hallways, and no chalrs were prov~ded. Equal rights for non-
smokers ~s as important at such a stressful t~me as any other
t.tme.
4. Sectlon 4923 (a) (4) should be changed to read:
"(4) The eI'J.ployer shall provlde ~ smoke-free work areas
for non-smokers to the maxlmum extent poss~ble~
The remalnder of subsectlon (4) should be a separate sentence--
pe~haps (b), wlth the remalnlng paragraphs re-lettered.
5. Sect~on 4923(d) should be changed to read:
"Notwlthstand~ng the above, every employer shall have
the au~~orlty to deslgnate any work area, or the
ent~re prem~5e5 controlled by that em~loyerT as a non-
s:uok~ng ar ea. II
The purpose of the change ~s to protect the employer's
current rlght to have an entlrely smoke-free workplace.
Thank you for cons~dering these comments, and thank you
for the work on th~s proposed ord1nance.
S~ncerely,
~
Irene Peterson, Attorney at Law
.
ATTACHMENT 6
.
. .
THF TOBACCO INSTITuTE
')[ 11 ~ J<l~ 10H'\ D KELLY
'~~-) 840; ~i~{FrT ReU]'lnrl~ \l~f Pn--,...jdrn'
~\(R\\'l-'\10 ("\Q~Ii]-l 91b H8 l~-li
March 1 8, 1 984
Mr. Robert M. Myers
City Attorney
1685 Main Street
Santa Monica, CA 90401
Dear Mr. Myers:
Thank you for providing the opportunity to comment on
the proposed Santa Monica Ordinance regulating smoking in
public places and places of employment.
Section 4920 Declaration of Purpose
Comment:
A flnding that lISmoking is a positive danger to health"
and 'la health hazard to those who are present in confined
places" is difflcult to justify on the basis of existing
scientific evidence. The attached document. a summary of
three recent international workshops on the subj ect, is
submitted for your file.
Section 4926 Penalties - Subsection (c)
Comment:
Existing California law and common law provides adequate
redress for employees discharged or otherwise retaliated
against for attempting to exercise "rightsll which would be
extended under this law. (see attached letter opinion)
This provision adds nothing to existing law but can
encourage a new level of lawsuits for employers. (see
attached article, Sacramento Bee)
I will attend the Council meeting on March 26th and will
be happy to provide input and attempt to answer any
questions the City Council might have.
Sincerely,
~~)~
John D. Kelly
JDK/y
,,\ J 'U',;j OFFl( : . ,ii-~. 1 ~;r'{E:r "OlU; '\'. E<, T . \\ \SPI'\CTO, ~JL ~LIi)i",. ~(): ..~- -li.I';:
"
.
.
Environmental Tobacco Smoke Workshops
1983 - 1984
/LQ
l Ii:
, I
lJL,. The Tobacco institute, 1875 I Street Northwest, Washington, DC 20006
May 1984
.
.
Environmental Tobacco Smoke Workshops
1983 - 1984
The Tobacco Institute, 1875 I Street Northwest, Wash1ngton, DC 20006
.
.
EnVIronmental Tobacco Smoke Workshops
1 9 8 3 - 1 984
Three tImes In lIttle more than a year, groups of phys1cians and
SC1entlsts have gathered in the UnIted States and 1n Europe to dISCUSS
envIronmental tobacco smoke (ETS). Among the 65 particIpants at the
three meetIngs have been many SCIentIsts whose contrIbutions to
knowledge about tIS, ItS measurement and possIble health consequences,
have been SIgnIfIcant InternatIonally.
Three tImes SInce March 1983, partICIpatIng researchers and other
medlcal experts have declared, forthrIghtly and 1ndependently, that no
concluslon can be drawn about whether ETS has any chronIc health effects
on the nonsmoker.
ConclUSIons from these workshops, released separately between December
1983 and AprIl thIS year, contaIn a common theme -- an affIrmatIon of
the determInatIon five years ago of the U.S. Surgeon General that
"healthy nonsmokers exposed to CIgarette smoke have lIttle or no
phYSIOlogIC response to the smoke."
They support as well conclus1ons In reports released last year by the
BrItIsh Royal College of PhYSICIans and the World Health OrganIzatIon:
"[T]he extent to WhIch paSSIve smoke exposure can
damage the health of otherWIse healthy IndIvIduals
IS by no means clear."
"Health or Smoklng?1I Royal College
of Phys1cians, 1983
"[A]lthough epldemlologlcal studIes have been
undertaken to investlgate the pOSSIble
carCInogenICIty of paSSIve smokIng and Its
relatIonShIp to reSpIratory dIseases, further work IS
clearly requIred."
WHO, "Indoor Au Pollutants:
Exposure and Health Effects:
Report on a WHO meehng,1I [URO
Reports and Studies 78, 1983
Two of the ETS workshops also called for further research Into poss1ble
health effects of ETS exposure. The thIrd, meetIng speCIfIcally to
examine avaIlable studies on any ETS effect on the reSpIratory system,
urged that eXlstlng data sets be thoroughly evaluated before any new
large-scale populatIon studIes be undertaken.
Convened by a dIVISIon of the U.S. government charged WIth research on
diseases of the lung, that group concluded nonetheless lIa reVIew of the
data fram the studIes WhICh have been carrIed out or are 1n progress
wh1ch address the effect of [ETS] on the reSpIratory system suggests
that the effect varIes from negligible to qUIte small."
.
.
One 1nternatIonal workshop convened last month ~n VIenna declared that
avaIlable studies on lung function are confllctlng and that metabolIC
lung changes have not been demonstrated to be caused by ETS.
A Vienna conference summary, written by Dr. Ernst Wynder, presIdent of
the American Health Foundation, and Dr. H. ValentIn, who heads the
Bavarlan Academy for Occupational and Social Medicine, said a health
hazard from ETS has not been demonstrated.
Another physIcan-researcher organIzed an ETS workshop in Geneva In March
1983 as follow-up to a slm1lar conference 1n 1974, the fIrst
international conference on the subJect. He concluded afterward that
"uutat1on and annoyance must stlll be conSIdered to be the most
prevalent effects ascertained from exposure to ETS."
All three groups declared that SClentlsts have not adequately quantlfled
ETS exposure or effect. No dose-response relationsh~ps can be
ascertalned if actual exposure has not been measured:
"Most Informatl.on on dose response relat~onshlps 1S derIved from
laboratory experiments and the application to normal condit1ons 1S
as yet uncertaIn.... for future work, a major research prIorIty 15
to determ1ne exposure levels of EIS In dIfferent segments of the
non-smoking populat1on under normal everyday condlt1ons.... Not
untll such data are avaIlable can the pOSSIble effects related to
ETS exposure be further evaluated." -- Geneva workshop, 3/83
"Lack of proper attentIon to the estImation or measurement of
exposure 15 a major weakness of all the studIes carried aut so
far." -- U.S. government workshop, 5/83
IIA drawback 1n all epldem1ologlcal studles up to now conslsts In
the fact that they have been conducted wlthout sufficlent
quantI flcation of [ETS]." Vienna workshop, 4/84
The VIenna conference summary, 10 the form of a two-page news release by
Wynder and Valentln, dld not dlSCUSS the problem of confound1ng factors
~n ETS stud~es. However, among these, as lIsted by the U.S. workshop,
are unvented combustIon products from stoves used for both heatIng and
cookIng; other Indoor pollutants; ~ndoor envIronmental characterlstlCS
such as temperature, humIdity and frequency of air changes;
socioeconomic status, culture and crowding; demographic and medlcal
characterIstics; parental symptoms; and the poss1ble reportIng bIases of
annoyance and other psychologlcal or soclal responses to tobacco
smoklng.
"Extenslve as thIS llst of potentlally compoundIng varIables may be, the
Importance of taking them ~nto conSIderatIon In the study deSign and
analysis cannot be overemphasizedt" u.s. government scient~sts wrote 1n
the floal report.
- 2 -
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.
.
The three workshops:
Second Workshop on Environmental Tobacco Smoke: "A Workshop on Effects
and Exposure Levels," March 15-17, 1983, UniverSIty of Geneva,
SWItzerland; organIzed by Ragner Rylander, M.D., UnIverSIty of
Gothenburg, Sweden, and the UnIverSIty of Geneva, under a grant from
The Tobacco Institute
"Workshop on Respuatory Effects of Involuntary Smoke Exposure:
EpIdemIologIC StudIes," May 1-3, 1983, Bethesda, Maryland; convened by
DIvISIon of Lung Diseases, NatIonal Heart, Lung and Blood InstItute,
U.S. PublIC Health SerVIce, Department of Health and Human Services
SympOSIum on npasslve SmokIng from a MedIcal POInt of VIew," AprIl 9-12,
1984, Hotel IntercontInental Wlen, VIenna, AustrIa; organIzed by
AmerIcan Health FoundatIon, AustrIan SOCIety for OccupatIonal MedICIne,
BavarIan Academy for OccupatIonal and SOCIal MedICIne, German SOCIety
for OccupatIonal MedICIne, under the patronage of the AustrIan Federal
MInIstry of Health and EnVIronmental ProtectIon and the auspIces of the
BavarIan MInIstry for Labor and SOCIal Order, In cooperation with World
Health OrganIzatIon and InternatIonal Green Cross
Further detaIl on these SCIentifIC meetIngs follows.
- 3 -
.;'~".-~ ..."."."....---.-......- --~-
.
.
Second Workshop on Envlronmental Tobacco Smoke:
"A Workshop on Effects and Exposure levels"
March 15-17, 1983
UniversIty of Geneva, SWltzerland
The conclusIon of this major lnternational symposIum was that avaIlable
eVIdence does not confIrm that tobacco smoke In the air causes chronIC
health problems.
The report was publIshed as a supplement to the European Journal of
ReSpIratory DIseases. IntroducIng the report, chaIrman Ragnar Rylander
of Sweden noted the subject has been wIdely dIscussed for many years.
Government authorItIes frequently request preCIse answers on SCIentIfIC
Issues relating to publlc health, the phYSICIan-researcher wrote.
"However, SCIence may not always be able to prOVIde such absolute
answers. ThIS clearly applIes to the current state of knowledge
concernIng ET5."
Researchers from nIne countrIes presented new data and reVIewed eXIstIng
studles.
!IAn overall evaluatIon based upon avaIlable SCIentIfIC data," Rylander
summed up, "leads to the conclUSIon that an Increased [lung cancer] rlsk
for non-smokers from ETS exposure has not been estabhshed."
AvaIlable eVIdence does demonstrate, however, "that the pOSSIble health
effects of ETS are not signIfIcant In comparIson to the multltude of
health problems faCIng SOCIety on 8 global scale," Rylander saId.
In a wrap-up of the three days of workshops and partiCIpant reVIew of
the state of $Clentlflc knowledge on pOSSIble health effects of ETS,
Rylander wrote:
o AvaIlable data do not establ~sh an Increased lung cancer rIsk
for exposed nonsmokers.
o Data on possible effects of exposure on chIldren "are stlll
contradIctory.1I
o Irrltatlon and annoyance are the most prevalent effects
reported from [TS exposure, but IIInformatlon IS stIll lacking as to the
extent of thIS reactIon In the community under everyday condItIons."
o The contrIbution of carbon monOXIde from tobacco smoke to the
env~ronment "lS not ~mportant from a health pOInt of vIew."
- 4 -
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.
Data Inconclusive
n[pJublished data on ETS and lung cancer cannot be consIdered
concluslve," the Unlverslty of Arizona's Michael D. LebowItz, rapporteur
and one of six partIcipants from the UnIted States, wrote In summation
of one workshop panel. Research measurlng nonsmoker exposure IS needed,
he sald.
A symposlum paper also noted the lack of data on smoke exposure and
small case numbers In studIes that have reported a statIstIcal
relatIonshIp between ETS exposure and lung cancer.
To attaln "reasonable statistical accuracy" in studies such as recent
ones claImIng husbands who smoke rIsk causlng lung cancer In theIr
nonsmokwg wives, Rylander sald, "one would need [to study) more than a
mIllIon females or a follow-up study comprISIng 300,000 females over a
40 year perlod."
LebOWItz saId a major methodologIcal problem of ETS exposure studIes ln
both adults and chIldren 1S accountlng for such varIables as age and
sex, meteorologIcal, pollutant and pollen dIfferences lndoors and outt
and k1nds of symptoms reported.
Further problems were detalled ~n measur~ng the smoke 1tself. "Tobacco
smoke IS a highly complex mIxture of thousands of compounds," wrote two
Oak RIdge (Tenn.) Nat10nal Laboratory researchers.
Even with the most sophistIcated analytIcal chemIcal measurement,
"results obtaIned must always be assessed for the potential Influence of
confoundIng factors from other, non-tobacco smoke sources," they wrote.
AnalytIC chemIst Roger A. JenkIns presented the paper for hImself and
Oak Rldge colleague MIchael R. GuerIn.
There 18 no "thoroughly satIsfactory" method for measuring atmospheric
tobacco smoke, a Harvard researcher saId in hIS workshop paper. Each
invest1gator selects tla tIny, but dIstInctIve, fragment" of the whole
smoke "and has sought to reveal the entIre unIverse from It," saId
MelVIn W. FIrst of Harvard's Environmental Health SCIences Department.
"HumJ.hty seems not to be an outstandIng characteristlc of those who
measure ETS and then draw sweepIng concluslons regarding health effects
from a tlny part of the whole exposure spectrum," f1rst wrote.
Another partICIpant from AmerIca dIscussed carbon monoxide as an Index
of envIronmental smoke exposure. Almost all publIshed levels of CO
derIved from tobacco smoke are below prImary government standards under
realistIC condltlons, wrote Domingo M. AVlado, former UnIverSIty of
Pennsylvanla researcher who now serves as a consultant.
- 5 -
.
.
"There lS, therefore, lIttle reason to suspect any adverse effect on
human health from reported lndoor CO levels normally assocIated wlth ETS
exposure," AVlado saId.
Rylander, who organized the workshop, teaches at the UniverSIty of
Geneva and the UnIverSIty of Gothenburg In hIS natIve Sweden. The
workshop was supported by a grant from The Tobacco InstItute to the
UnIverSIty of Geneva.
Listed PartICIpants
Domingo M. Aviado
Atmospher~c Health SCIences, Inc.
P.O. Box 307
Short HIlls, New Jersey 07078
USA
Bjorn Bake
Department of ClInIcal PhYSIology
Sahlgren's HOspItal
413 45 Gothenburg - SWEDEN
Anthony M. Cosentino
St. Mary's HospItal and Medical
Center
450 Stanyan Street
San FranCISCO, CalIfornIa 94117
USA
MelVIn W. fIrst
Department of Environmental
Health SCIences
Harvard UnIverSIty
665 HuntIngton Avenue
Boston, Massachusetts 02115
USA
Charles R. GilllS
Greater Glasgow Health Board
West of Scotland Cancer
SurveIllance Un~t
Ruchlll HOspItal
Glascow, G20 9NB - SCOTLAND
Roger Guillerm
Centre d'Etudes et de Recherches
Techn~ques sous-marInes D.C.A.N.
83800 Toulon Naval - FRANCE
Patrick G. Halt
Cl~nIcal Immunology Research
Unit
PrIncess Margaret Ch~ldren's
MedIcal Research FoundatIon
c/o PrIncess Margaret Hospltal
for Ch~ldren
GPO Box 184 D
Perth, Western Austral~a
AUSTRALIA
Horst Huckauf
Frele UnIversltat Berl~n
Unlversltatsklin~kum Stegl~tz
Med Kllnlk und Pollklinlkum
HIndenburgdamm 30
1000 BerlIn 45 - WEST GERMANY
MartIn J. JarVIS
Inst~tute of Psych~atry
AddIctIon Research UnIt
101 Denmark HIll
London SE5 8AF - ENGLAND
Roger A. JenkIns
BIo/OrganIc AnalYSIS SectIon
AnalytIC ChemIstry DIVISIon
Oak RIdge National Laboratory
P.O. Box X
Oak RIdge, Tennessee 37820
USA
- 6 -
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Mlchael D. Lebowltz
Divlslon of Respiratory SClences
The Unlverslty of Arizona
Health SClences Center 2
College of Mediclne
Tucson, Arizona 84724 - USA
Cornellus J. Lynch
Franklln Instltute
POI1CY Analysis Center
1320 Fenwick Lane
SlIver Sprlng, Maryland 20910
USA
Goran Pershagen
National Instltute of
EnvlrOnmental Medlc~ne
Box 60208
104 01 Stockholm - SWEDEN
Mlchael A. H. Russell
Institute of Psychlatry
Addlctlon Research Unlt
101 Denmark Hlll
London SE5 8AF - ENGLAND
.
Theodor D. Sterllng
Simon Fraser Unlverslty
Department of Computlng Science;
291-4277
Burnaby, Brltlsh Columbia
CANADA V5A 1S6
Annetta Weber
Department of Hyglene and Work
PhYS10logy
ETH-Zentrum
8092 Zurich - SWITZERLAND
Andreas Zober
InstItute for OccupatIonal and
Soclal Mediclne and Polycllnlc
for OccupatIonal DIseases
Unlversity of Erlangen-Nurnberg
Schll1erstr. 25/29, 8520 Erlangen
WEST GERMANY
- 7 -
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"Workshop on Resp~ratory Effects of Involuntary Smoke Exposure:
EpIdemIologIC StudIes"
May 1-3, 1963
National InstItutes of Health
Bethesda, Maryland
Th~s U.S. government-sponsored rev~ew of current research on possIble
respiratory effects of ETS concluded such effects, If any, range from
"neglIgible to qUIte small, Il and recommended agaInst further populatJ.on
studIes untIl current data have been thoroughly evaluated.
~otIng that current means for measurIng exposure to ETS are Inadequate,
however, the revJ.ew dId call for ITurgent" development and evaluatIon of
exposure measurements.
The workshop of the DIVISIon of Lung Diseases of the National Heart,
Lung and Blood InstItute (NHLBI) brought together 21 researchers --
IncludIng epIdemIologIsts Involved ~n major ongOIng populatIon studIes
-- to reVIew ETS fIndIngs to date and make recommendatIons for future
study.
ETS ConclUSIon Unexposed
The report of the workshop, entItled "RespIratory Effects of Involuntary
Smoke Exposure: EpIdemIologIC StudIes," was publIshed in December 1983.
It was not publiCIzed. In fact, when The Tobacco InstItute made Its
fIrst InqUIrIes In February 1964, offICIals at the OffIce on SmokIng and
Health (OSH) -- WhICh maintaIns the government's bibliography on smokIng
and health Information -- were apparently unaware of either the workshop
or the report.
A press offIcer at the NatIonal Inst1tutes of Health (NIH) later was
able to locate the publIcatIon at NHLBITs DIVISIon of Lung DIseases.
OSH, NIH and NHLBI all are part of the U.S. Department of Health and
Human SerVIces.
Common Forum
Among the researchers partiCIpating in the workshop were the UnIverSIty
of ArIzona's M1chael D. Lebowitz, who co-authored a chapter on ETS 10
the 1962 Surgeon General's report, and BostonTs Scott Weiss, who,
accordIng to government documents released under the Freedom of
InformatIon Act, has been under contract to prepare material on the same
subject for the 1984 report.
- 8 -
.
.
Lebow~tz has s~nce 1972 been ~nvest~gat~ng Ar~zona fam~lles ~n hlS
Tucson epIdemiologIC study of aIrways obstructIve dIseases. WeIss 15
Involved In a study of familIes 1n East Boston, Mass. Other studIes
dIscussed at the workshop Include one that has been gOIng on In
Tecumseh, MIch., SInce 1959 and a Harvard SIX-CIty study.
Although none of these studIes was deSIgned orIginally to assess
poss1ble ETS health effects, the researchers noted, all have provided a
"consIderable amount of relevant data" on the subject.
Effects None to Very Small
Because all the studIes used dIfferent populatIons and methodologIes,
and have come to varYIng conclusions, workshop partIcIpants sought 8
common forum for reVIew of results "1.n order to IdentIfy the probable
reasons for d1fferences... develop gUIdelInes for collectIon and
analysis of epIdem1ologic data... and to make recommendat1ons for future
studies," the report sa~d.
Most of the data that have been analyzed, the report noted, show "the
effect of [ETS] on lung functIon varIed from none to a very small
effect."
Although none of the populatIon studlBS currently underway was deSIgned
to look Into pOSSIble effects of ETS on the resp~ratory system.
researchers at the NHLBI workshop were optlmlstlc that, If results show
conSIstency, lilt may be possible to arrIve at answers to most of the
quest10ns about the effects of ETS on the lungs."
~~sted PartIcIpants
SonIa BUIst, M.D.
Professor of MedICIne
and PhYSIOlogy
The Oregon Health SCIences
Unllierslty
School of MedICIne
3181 SW Sam Jackson Park Road
Portland, OR 97201
John E. DIem, Ph.D.
Professor of StatIstICS
Program In Appl1ed StatIstics
Tulane UnIverSIty
424 G1bson Ha 11
New Orleans, LA 70118
BenjamIn Burrows, M.D.
Professor of Internal MediCIne
DIVISIon of RespIratory SC1ences
The UnIvers1ty of ArIzona Health
SCIences Center
1501 North Campbell Avenue
Tucson, AZ 85724
Douglas DOCkery, D.Sc.
Research ASSOCIate
Department of PhYSIology
BUIlding 1, Room 1416
Harvard School of Publ1C Health
665 HuntIngton Avenue
Boston, MA 02115
- 9 -
.
BenJam~n Ferr~8~ Jr.~ M.D.
Professor of Env1ronmental Health
and Safety
Department of Physiology
Harvard School of Publlc Health
665 HuntIngton Avenue
Boston, MA 02115
Ian Hlgglns~ M.D.
Professor of EpIdemlology
Unlverslty of Mlchlgan
School of Publlc Health
109 Observatory Street
Ann Arbor~ HI 48109
Mlll~cent HlggIns~ M.D., D.P.H.
Professor of EpldemIology
UnIversIty of MlchIgan
School of Publ~c Health
109 Observatory Street
Ann Arbor~ MI 48109
Jacob Keller~ MPH
SenIor Research Assoclate
Unlverslty of MIchlgan
School of PublIC Health
109 Observatory Street
Ann ArbQr~ MI 48109
MIchael D. Lebowitz, Ph.D.
Professor of Internal MedlcIne
DivISIOn of ReSpIratory SClences
The UnIversIty of Ar~zona Health
SCIences Center
1501 North Campbell Avenue
Tucson, AZ 85724
Thomas Louis, Ph.D.
ASSocIate Professor
Harvard Universlty
School of PublIC Health
Department of BIostatIstIcs
677 HuntIngton Avenue
Boston, MA 02115
Arnold S. Manto, M.D.
Professor of EpIdemIology
UnlversIty of Mlch~gan
School of PublIC Health
109 Observatory Street
Ann Arbor, MI 48109
.
Bernard Rosner, Ph.D.
ASSocIate Professor of Prevent~ve
Med~clne and ClinIcal
Ep~demlology
ChannIng laboratory
180 Longwood Avenue
Boston~ MA 02115
Charles E. Ross~ter
ClIn~cal Research Center
DIv~slon of ComputIng and
StatIstIcs
Watford Road, Harrow, MIddlesex
England HA1 3UJ
Frank E. SpeIzer, M.D.
Assoc~ate Professor of Med~c~ne
Harvard Med~cal School
Chann~ng LaboratDry
180 Longwood Avenue
Boston, MA 02115
Jan A. J. StolwIJk, Ph.D.
ChaIrman
Department of Ep~dem~ology and
Publlc Health
Yale UnIverslty School of
MedICIne
P.O. Box 3333
60 College Street
New Haven, CT 06510
Ira B. Tager~ M.D.
Asslstant Professor of MedIc~ne
Beth Israel HospItal
JJO BrooklIne Avenue
Boston, MA 02215
Lynn M. TaussIg, M.D.
Professor, Department of
PedIatrlcs
The UnlversIty of ArIzona Health
SCIences Center
1501 North Campbell Avenue
Tucson, AZ 85724
- 10 -
.
Asslstant Professor of PedlatrlcS
Dlvlslon of Chest DIseases
The Oregon Health SCiences
Unlverslty
School of MedicIne
3181 SW Sam Jackson Park Road
Portland, OR 97201
Mlke Wall, M.D.
Hans WeIll, M.D.
Professor of MedlClne
Tulane University School of
MedICIne
1700 Per dido Street
New Orleans, LA 70112
Scott T. Welss, ~., M.S.
Associate ChIef, Pulmonary UnIt
Beth Israel HOspItal
330 Brookline Avenue
Boston, MA 02215
Margaret Wu, Ph.D.
B~ometr~c Research Branch,
DIviSIon of Heart and Vascular
Dlseases
NatIonal Heart, Lung, and Blood
InstItute
Bethesda, MD 20205
DIVISIon of Lung Diseases Staff
NatIonal Heart, Lung and Blood InstItute
Suzanne S. Hurd, Ph.D.
Actlng Director
J. SrI Ram, Ph.D.
ChIef, AIrways DIseases Branch
Zaklr H. BengalI, Ph.D.
AIrways DIseases Branch
Hannah H. Peavy, M.D.
AIrways DIsease Branch
- 11 -
e
.
SymposIum on "PaSSIve Smoking from a MedIcal POInt of VIew"
AprIl 9-12, 1984
Vienna, Austria
PendIng a more detaIled report, sc~entlsts summarIzed thIS InternatIonal
sympOSIum In a German language news release ~ssued durIng the conference
by the Barvarlan Academy for OccupatIonal and Social MedicIne.
Headlined "Health Hazard from PaSSIve SmokIng Not Proven," the release
reports the "expert dISCUSSl.on" was under the patronage of Dr. Kurt
Steyrer, AustrIan Federal MInister for Health and EnvIronmental
ProtectIon, and Dr. Fritz Pl.rkl, Bavarlan State MInister for labor and
SocIal Order, and Included particIpants from the United States, Japan
and Europe.
The release was by the presIdents of two of the sponsorIng health
organIzatIons, Dr. H. Valentl.n of the BavarIan Academy and Or. Ernst
Wynder of the AmerIcan Health FoundatIon, a longtIme smokIng-health
researcher.
These SCIentIsts sald a health hazard from (T5 has not been
demonstrated. They saId that only 11 percent of the hIghly dIffused
particulates Inhaled from room aIr remaln ~n the lung -- less than
one-elghth the concentratIon they saId ~s retaIned 1n the smoker's
lung. For thIS reason they sald, "there IS a high probab111ty that
cardIovascular damage due to [ETs] can be ruled out In healthy people."
They saId a new cohort study from West Germany, "flnds It rather
Improbable that [ETS] could have a negat~ve effect on the pulmonary
function of healthy adults.1I But much dlScusslon was centered on the
questIon of the extent to WhICh ETS mIght cause or promote the
development of cancer, partIcularly In the lung.
They expressed partIcular Interest In lung cancer data from two
longItudInal studies from Japan and the United States, whose authors,
Takeshl HIrayama and the AmerIcan Cancer Soclety.s Lawrence GarfInkel
were among conference presenters.
Summed up ValentIn and Wynder:
"WhIle the Japanese study proposes a connecbon between [OS] and
lung cancer, no lndlcatlons of th~s effect result from the AmerIcan
In~est~gatlon. If the results of numerous other internatIonal
investigatIons are taken l.oto account, the connectIon between [ErS]
and lung cancer has not been sClenh hcally estabhshed to date. II
AcknowledgIng, as dId the March 1983 Geneva conference, that ET5 IS a
SOCIal 1ssue as well as a pOSSIble health concern for "hIgh fISk
groups," the VIenna workshop called for an InternatIonal cooperatlVe
effort of the varIOUS scientIfIC dlSClpllnes.
- 12 -
"Should
[EIS],"
able to
lawmakers wish tIIlake legIslatIve measures wIth~ard to
wrote ValentIn and Wynder, "they wIll, for the present, not be
base theIr efforts on a demonstrated health hazard from [E1S]."
~Isted PartICIpants
Prof. Dr. F. Adlkofer
Forschungsgesellschaft Rauchen
und Gesundheit mbH
MIttelweg 17
D-2000 Hamburg 13
Dr. C. Hugod
NatIonal Board of Health
1 St. Kongensgade
DK-1264 Copenhagen K
MR Dr. E. Baumgartner
Leltender Betrlebsarzt des
ArbeItsmedlZInlschen Zentrums
A-8060 Hall/llrol
Or. l.C. Johnson
Gesellschaft fur
Informatlons-VerarbeItung
und StatIstlk In der
MedIZln e.V.
PettenkoferstraBe 35
D-8000 Munchen 2
L. GarfInkel, M.A.
VIce PresIdent of EpIdemiology
and StatIstICS
AmerIcan Cancer SOCIety, Inc.
4 West 35th Street
New York, ~y 10001
Dr. M. Kentner
Instltut fur Arbelts- und
SOzlBI-MedIzln def Unlversltat
Erlangen-Nurnberg
SchlllerstraBe 25/29
0-8520 Erlangen
F.C. HIller, M.D.
Professor of MedICIne
Pulmonary DIVISIon
UnIverSIty of Arkansas for
MedIcal SCIences
4301 West Markham
LIttle Rock, AK, USA
Unlv-Prof. Dr. M. Kunze
InstItut fur SozIalmedlz1n
der Un~versItat WIen
Klnderspltalgasse 15
A-1095 Wlen
T. HIrayama, M.D.
Epldemlology DIVIsion
Natlonal Cancer Center
Research InstItute
TsuklJl 5-chome, Chou-ku
Tokyo, Japan
Dr. M. Lebowitz
D1V1SIon of ReSpIratory Sc~ence
Health SClence Center
UnlversIty of ArIzona
Tucson, AZ 85724, USA
D. Hoffmann, Ph.D.
~aylor Dana InstItute for
DIsease PreventIon
AmerIcan Health roundat~on
Dana Road
Valhalla, NY 10595, USA
Prof. Dr. G. Lehnert
Dlrektor des Zentrallnstltuts
fur ArbeltsmedlZln
Adolph-Schonfelder-StraBe 5
D-2000 Hamburg 76
- 13 -
, .
.
Dr. H. Letzel
Gesellschaft fur Informatlons-
Verarbeitung und StatIstik In
der Medlzln e.V.
PettenkoferstraBe 3~
D-BOOO Munchen 2
Oip1.-Psych. Fr1drun Rlchter
Forschungs1abor Professor
Schlevelbeln
InstItut fur Kllnlsche Chemle
Deutsches Herzzentrum Munchen
des Frelstaates Bayern
Galg1straBe 3
D-8000 Munchen 2
Prof. Dr. H. Schlevelbeln
Vorstand des Instltuts fur
Kllnlsche Chemie
Deutsches Herzzentrum Munchen
des Frelstaates Bayern
LothstraBe 11
D-8000 Munchen 2
Prof. Dr. D. Schmahl
Dlrektor des Instituts fur
TOxlkologie und Chemotheraple
am Deutschen
Krebsforschungazentrum
1m Neuenheimer Feld 280
D-6900 HeIdelberg
Prof. Dr. W. Stober
LeIter des Fraunhofer-Instltuts
fur TOxlkologie und
Aerosolforschung
Nottu1ner Weg 102
0-4400 Munster-Roxel
.
Dr. G. TrIebIg
lnstltut fur Arbelts- und 50z1a1
Medlzin der Unlversitat
Erlangen-Nurnberg
SchlllerstraBe 25/29
D-8520 Erlangen
Prof. Dr. K. Uberla
PrasIdent des
BundesgesundheItsamtes
Thlelallee 88-92
D-10oo BerlIn 33
Prof. Dr. H. ValentIn
Dlrektor des Instltuts fur
Arbelts-und Soz1al-Medlzln der
Unlversltat Erlangen-Nurnberg
SchIllerstraBe 25/29
D-8520 Erlangen
Doz. Dr. Ch. Vutuc
Instltut fur Sozlalmedlz~n der
Unlversltat Wlen
Klnderspltalgasse 15
A-1095 Wlen
PD Dr. Annetta Weber
Instltut fur Hygiene und
ArbeltsphYSlologle der
Eldgenossischen Technlschen
Hochschule ZUT1Ch
ClaUSIus-StreBe 21
CH-B092 ZurIch
E. L. Wynder M.D.
PreSIdent
AmerIcan Health FoundatIon
320 East 43rd Street
New York, NY 10017
- 14 -
.
.
.
References
1. Rylander R., Peterson Y., Snella M.-C. (eds.), EIS -- Environmental
Tobacco Smoke: Report from 8 Workshop on Effects and Exposure
Levels, March 15-17, 1983, Un1versity of Geneva, SW1tzerland, 152
pp.
2. U.S. Public Health Service, Report of Workshop on Resplratory
Effects of ~nvoluntary Smoke Exposure: EpidemIologIC Studies, May
1-3, 1~B3, Department of Health and Human ServIces, December 1983,
12pp.
3. ValentIn H., Wynder E., workshop on "PaSSIve SmokIng from a MedIcal
POInt of VIew," Vienna, AustrIa, Bavarian Academy for OccupatIonal
and Social Medlcine news release summary (trans.), April 11, 1984.
- 15 -
..
.
.
CIo1IC....GO Ol'"F"ICE
5!i EAS.... ,""O""ROE STRt:E'T
CHIC....GO ILI...I"-IOI$ e0503
..RE" CODE 312 34e eooo
C"SLE "PDRESS INTE"'U;:X
SEYFARTH, SHAW, f:'"A,IRWEATHER & GERALOSON
ON E CENTURV F>LAZA - SUITE 3300
2029 CENTURV F>ARK EAST
LOS ANGELES, CALIFORNIA g0067
.."'E.... CODE <'13 277 720a
W"'SMINGTON, D C OF"F"ICE
IIU I SilT 1o?i STIltEE"- N W
W....SIo1INGTON. C C 200315
"RE" CODE 202 4532400
NEW VORK OFF"ICE
520 .......O'SO'" "'VE"-IUE
"'EW YORl'., NEW VORK 10022
..RE.... CODE 2'2 715 SlOOO
WltlTUt 5 DIRECT DI..L
(a.:)}
October 22, 1984
Mr. Joseph R. Cerrell
Cerrell Associates, Inc.
320 North Larchmont Boulevard
Los Angeles, California 90004
Re: Current State Law Restrict~nq Retaliation
AgaInst Employees Complaining Under Pending
Los Angeles Smoking OrdInance
Dear Mr. Cerrell:
You have asked us whether existing state law would
prohibit an employer from retaliatIng against an employee who
complaIned of smoke in the workplace under the pending Los
Angeles smoking ordinance, assumIng that the ordInance itself
does not include a prohibItion agalnst retaliatIon. Although
there 1S no state statute explicitly prohibiting employer
retaliatIon agalnst an employee who eXerCIses rights under a
city ord1nance regulatlng smOkIng, it appears that such
employe~ retalIatIon would be prohlbited unde~ the California
Occupat1onal safety and Health Act (hereinafter .OSHAW) and
under a common law tort theory.
OSHA provides that no employer may discharge or in any
other manner discrimInate aga1nst an employee because the
employee makes an oral or written complaint to any government
agency responSIble for enforcing OSHA, his employer, or hIS
representat1ve. Californ~a Labor Code S 6310. Thus, it
appears that any employee complaIning concerning smoke in the
workplace which the employee believes creates an unhealthful
workIng condItion would be protected from retaliatIon on
account of hav~ng made a complaint. California Labor Code
5 6312 provides that any employee who believes he has been
Q1SCrlmlnated against on account of having made a safety or
health complaint may file a complaint with the California Labor
CommIssioner. The complaint is then Investigated by the
Division of Labor Standards Enforcement, and the DiVIsion may
brlng an act~on 1n any appropriate court for relief.
.. StYF"ARTH SHA.W rAIRWEATH. GERALDSON
.
Mr. Joseph R. Cerrrell
October 22, 1984
Page 2
In addition to the statutory scheme under OSHA outlined
above, there 1S substantial California case authority
protect1ng employees from d1scharge where such discharge would
be contrary to the public policy of the state. The most
well-known of these cases is ~ameny v. Atlantic Richfield
Company, 27 Ca1.3d 167 (1980). In that case the CalIfornia
Supreme Court held that an employer could not discharge an
employee 1n retal1ation for refusing to partic1pate in
pr1ce-fixing 1n violation of federal anti-trust laws. The
California .public policy. line of cases has protected
employees from retaliation for exercislng statutory rights, as
well as refusal to commit illegal acts. For example, 1n Glen
~. Clearman's Golden Cock Inn, Inc., 192 Cal. App_ 2d 793-
(1961), the court found that d1scharge of an employee for
exerclsing his statutorlly conferred rlght to engage 1n union
actlv~tles was unlawful under CalifornIa common law.
Both the OSHA anti-retaliation provis1ons and the common
law tort theory prohibiting reta11atory dIscharge 1n violatIon
of publlC policy were d1scussed 1n Bentzel v. Singer Company,
138 Cal. App. 3d 290, 188 Ca1. Rptr. 159 (1982), a case
involving an employee's complaint about co-workers' smoking.
In Hentzel an employee complained about smoke 1n the workplace
and asked the employer to provlde him With a smoke-free
envlronment. When the e~ployee was dIscharged, he filed a
laWSUIt alleg1ng that he had been terminated in retaliation for
hiS complaInts about smoke in the workplace. The complaint
attempted to state a cause of action in tort for wrongful
d1scharge under the theory d1scussed In T~meny. ~he court dld
not question the plalntiff's ability to scate a common law
cause of actIon for wrongful discharge based on his complaint
about smOking in the workplace. The issue in the case, rather,
was whether the established common law tort had been preempted
when Labor Code 5S 6310-6312 were enacted as part of OSHA~ The
court discussed the long history of the common law tort cause
of act10n and concluded that the remedies avaIlable under OSHA
were intended by the legislature to supplement, rather than
replace, the eX1stlng common law remedies for retal1atory
dlscharge 1n violat10n of publlC policy.
There was no statute or city ordinance in the He~tzel
case glving the employee any right to demand limltatlons on the
smoke in the workplace. Despite this, the court held that the
plaintiff could clearly state a cause of action. If Los
Angeles adopted an ordlnance limiting smoking, an employee
making complaInts about smoke in rellance on that ordinance
would seemingly have an even stronger argument of public policy
agalnst retaliatory discharge than the plaintiff in ~~ntzel.
\, Stn-ARTH SHAW F"AIRWEATH.& GERALDSON
.
Mr. Joseph R. Cerrrell
October 22, 1984
Page 3
Further, in the two years since Hentzel there has been
increasing recognition of employees' right to a relat1vely
smoke-free work environment. Recently, for example, the
California Court of Appeal held that an employee could quit his
job because of co-workers' smoklng and collect unemployment
benef~ts on the theory that he was enforced to reslgn.
McCracklin v. California Department of Employment, 205 Cal.
Rptr. 156 (1984).
Thus, although there is no explicit statute on the
subject, it appears that under common law tort theory and OSHA
statutory provlslons, an employee complaining about smoke 1n
the workplace pursuant to the pending Los Angeles ordinance
would be protected agalnst retallatlon under existing law, even
If the ordlnance itself does not contaln a prohibition agalnst
retallation.
Very truly yours,
,
SEYFARTH, SHAW, FAIRWEATHER' GERALDSON
- ~
_..~ '" ~e..r'-u....l-.~ ~ ~,,\e.\
By
Barbara L. Schlei
BLS:ks
Enclosure
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no - ~ .. ~~,;.~~ - -:.~ -, ~:l;..... -... ___...... ~ ~~ k. -:::lL:! :=-.... "-__ ."", ;.- _ _ _~
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_W~'"-- y-Jr ;r~r~~~ -~~~Y" - -=rl~~......~..:~_""~~_ .L-:? .,.,.-;.......-..~~___:~~~~:.~~~P-~~...::.-:-
____ ~.--~~_- .:-::.-~___--r. _:-:-J - ~~~_ _~...-M L-...- ~~~ ~;_~~~ ~"-~~~~~~~-~~=-v~_
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138 Cal.App.3d 290
..--~ ............
~-; .........~
HE!'<lTZEL v. SINGER co.
159
Cltu. fS8 c.l ltptr 159 (API' 19821
agreement to restram or sue Herzog cannot FAllen, J , whIch sustained former em-
bmd non.parlies.5 ployee's demurrer In action claiming, on the
basIS of vanous theones, that termination
from employment was wrongful and in ad-
ditIon that employer was guIlty of tort of
Intentional infllctlan of emotIOnal dIstress
The Court of Appeal, Grodin, P.J, held
that (1) former employee's nght to bnng
common-law action for retahatory dismissal
SUJ"VlveO sectiOns of Labor Code prohibiting
dIscharge or dlScnminatlOn due to actiVIty
on part of employees In relatIon to safety
and health matters, declaring victIms of
dISCharge or discnmmation to be entItled to
remstatement and reImbursement for lost
wages and work benefIts, and provJ(hng for
mamtenance of SUit by Labor Commissioner
on behalf of VIctIms under certain CIrCum-
stances, and (2} former ernplo}"e€ stated
cause of action for breach of contract.
T.
!-l
1 _
~.
,_
ACTION FOR DECLARATORY RELIEF
(4] SectIon 47, SUbdiVIsIon (2) has no
apparent relevance to the request for de.
claratory rehef_
Even assuming Herwg's cause of action
for dec:laratory rehef 18 based enttrely on
the October 31st letter and that letter IS
absolutely pnvlleged under sectlOn 47, sub-
cllVlSlon (2), tts contents do not bear on the
l8Sue of the emplo)'ment agreement's en-
forceahllzt;r The declaratory rehef action
ta merely designed to settle dISputes be.
tween partIes as to their respective nghts
and duties under the Iml1al contract
.l!u ...hIudgment reversed
..
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GERALD BROWN, P.J, and 8T ANI.
FORTH, J . concur
I~
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138 Cal App 3d 290
.J.!." ...1Paul BENTZEL, Plaintiff and Appellant,
Y.
The SINGER COMP ~'Y et al..
Defendants and Respondents.
Civ. 52501.
Court of Appeal, Fll'St Dlstnct,
DIVISIOn 2
Dee 20, 1982
....t-
Former employee who was allegedly
termmated 10 retahatlon for hiS protestmg
What be considered to be h~?-'!!'dous work~
ing conditions caused by other employees
IDJokmg m a work place appea.led from the
Supenor Court, Santa Clara Count~'. Bruce
I.. "An Company may raISe the pnv1lege of sec.
tion .7, SUbdlVlslon (2) as an a.ffirmatlve de-
fenR &1 mal. if It can show the letter was not
deSIgned lD prevenl Herzog from obtaining em.
l' ~ -
>.,;,
~
~
~
~
L
Reversed and remanded.
.
1. Master and Sen-ant e:::>30(1)
An employee is protected against diS-
charge Or discrimmatlOn for complainmg in
good faIth about workmg conmtlons or
praetJces which he reasonabl~ beheves to be
unsafe, whether or not there exists at the
time of the complaint an OSHA standard or
order which is bemg violated West', Ann
CaI Labor Code ii 6310. 6310(b). 6311, 6312.
-'_.:..1.. ~~....-:-
~~----.............
;:~~ ~ -:Jf
-,-."..~~
...~~.
~ ~2:7iX
- ~_ "":>t-
-. -
-c'" r-::: -~.1--~:-
_T~.- ~""':c.'"
-z~...~
,~ -"" -'"'l-'-
-+--- - ."r
~~:~ !'~~
__ :..J;.-- 'I!" """.:-
2. Master and Servant ~34
Former employee's right to bnng com-
mon-law cause of actIOn for retahatory diS-
missal survived statute prohibiting dis-
e"harge or discnrnmation because of activity
on part of employees In relatIOn to safety
and health matters. declanng Vlctlms of
dIscharge or dlscnmmatJon to be entItled to
remstatement and reimbursement for lost
wages and work benefIts, and provldmg for
maintenance of SUit by Labor Commissioner
on behalf of vJC1mlS under certain circum.
stances West's Ann Cal Labor Code
ii 6310, 6312
ployment in the area of his profeSSIonal exper-
dse and was otherwIse a good faIth commUni-
cation about prospective hugauon contemplat-
_~ed for leglumate purposes.~_
I
'.
-.
188 CALIFORNIA REPORTER
138 CaLApp.3d 210
I. Action .e=o3S-
Where a statute creates a right that
did not exist Ilt common Jaw, and provides a
comprehensive s)'lltem of admmlstrative en-
forcement, a requIrement that admimstra-
tive remedIes be exhausted may be implied,
however, where statutory remedy III provId-
ed for the enforcement of a preexistmg
common-law right, the newer statutory
remedy will be consIdered only cumulative.
4.. Muter and ServaJIt ....34)
Former employer was not entitled to
dismissal of former employee's complamt
alleging retaliaUlry dismissal on ground
that he failed to exhaust remedy available
under statute prO\"ldmg for mai~tenanee of
Buit by Labor CommissIOner on behalf or'
employees discharged for activity in rela-
tion to safety and health matters West'!;
Ann Cal Labor Code ~ 6312.
5. Master and Servant $:> 39(1)
Fonner emplo)'ec who was allegedl)'
terminated in retahatJon for his protestmg
what he considered to be hazardous work-
mg conditions caused by other employees
BIDoking in work place failed to state ~use
of actlOD for breach of contract since he
failed to allege suffICIent facts from which
promise could be un plied.
6. Estoppel $::> ]07
Former employee who was aHegedl:y
terminated in retalll.tion for his prot.estmg
what be considered to be hazardou~ work.
109 conwtlODS caused by other employees
smolang ID work place fBlled to state cause
of ac.uen baserl on eswppel since he did not
allege suffiCIent fac~ from whIch promISe
could be Imphed
7. Work en;' CompensatIon dl=2090
Tnal court erred In sustaming demur.
rer to cause of action for tort of mumtlOnal
inflIction of emotlOnal dIStress brought bJ
former employee who was allegedly tenm~
nated III retalIation for hIS pro~stmg what
he conSidered Ul be hazardous working con.
dltions caused by other employees smoimg
In work place smce subject matter was not
preempted by the Workers' Compensation
Act West's Ann Cal Labor Code ~ 3600 et
&eq
.
..
John W CJatk, Trepel, Clark &. Manley,
San Jose, for appellant
Peggy L. Braden, Wilham O'Dea, Sunny-
vale, for respondent
John Rea, Chief Counsel, Dept of lndus-
trial Relations, San Francisco, for am.JCUB
eunae.
,J!iRODIN, PresidIng Justice ...I!.II
Appellant Paul Hentz.el brought this ae-
tion agBlDst his former employer, The Smg-
er Company (Singer), claiming, on the basIS
of vanous theories, that his termmation
from employment was wrongful and in ad.
dltion that hill employer was guilt)" or the
tort of intentional infliction of emotional
diStress The gist of hIS complaint is that
his employer discriminated agamst hIm, and
eventuaJlj' tenrunated him, 1D retahatlOn
for hIS protesting what he conSidered to be
hazardous workmg conditions caused by
other employees smoking In the workplace.
He appeals from a judgment dlsmissing his
complaint, after rulings sustainmg Smger's
demurrer to each of his causes of actlon
without leave to amend.
In his original complaint, HentzeJ aJJeged
four causes of action. the flTSt, In tort, for
wrongful dIsmissal in retahatlon "for hIS
attempts to obain a reasonably smoke-free
environment in which to work", the second,
in contract, for breach of an ImplIed prom-
ise that hE would not be terminated so long
as the &ervu:~.es be performed were satisfac-
tory; the thllU, OD a them")' of estoppel
based upon the alleged promise, and the
fourth, for mtentlOnal inflictIOn of emotJon-
al dIStress The tnal court sustamed gener-
al demurrers to the first and fourth causes
of action \\"thout leave to amend Hentz.eJ
then filed a fU'St amended complaint eon-
taming five causes of action, as to each of
whIch the trial court sustamed Smger's de-
murrer
~
.
,
of'
~
We first summarize the allegations of the
complamt whjeh, for purposes of thiS a~
peal, we must accept as true In hiS first
cause of action, for "toTtJous wrongful dls-
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~- 138 CaJApp.3d 295 BENTZEL v. SINGER CO. 161 ~€:;~~ji9
::- eke as 188 Cal Rptr 159 (App 1182) ,::~..-.-.... .~
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marge," Hentzel alleges that he was hIred
by Smger as a aenior patent attorney at its
APO-Lmk Dmsion In SunnY"ale in 1974,
that he was termmated in the latter part of
1979, that be performed all of hIS dutIes In
an exemplary fashion, and that the proXI-
mate cause of hIS terminatIOn was hIS "at-
tempt to obtain a reasonably smoke-free
environment" The complaint goes on to
allege that although Smger was aware of
Bentzel's deSIrE: for a reasonably smoke-
free envlTOnment, It refused to proVlde hIm
With such, instead placing him in a working
&rea v.1th a hea\ler concentration of smoke
than 1m ongmallFork area, failed to segre-
gate conference rooms into smoking and
non-smoking areas, and falled to prevent
othe" employees from "dIrectly antagomz-
mg" him in vanous ways, which mcluded
sItting next to hIm and smokIng, and ex-
cludmg blm from meetmgs to which he
would normally have been lnVlted because
he reasonably requested dIVIsion of the
room mto smokIng and non-smokmg areas
The complaint further alleges that the pres-
ence of cigarette smoke in closed enVIron-
ments creates a signIfIcant health hazard to
those who are present in the enVIronment.
In 1m second cause of action, for "breach
of contract," Hentzel reincorporates all of
the allegatIons of hIS Ill"St cause of action,
and asserts that by the conduct alleged
Smger "breached the implied covenant of
good faith and fair dealmg which eXisted In
the emplo)'Tllent contract relatIOnshIp be-
tween Plamtlff and Defendants ..
Bentzel's thIrd cause of action, based
Upon the same allegations as the second but
entitled "tortIOUS wrongful dISCharge," as-
eem that Smger's conduct was "willful,
mahcious, oppressive and reckless In regard
to PlamtIff's nghts," and asks tbat pUDltIve
dama~ be assessed
2.
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1. The ongmal complamt alleged "In Spite of
aOWUlg that Plamtlff needed as smoke-free an
ellVU"Onment a5 pos5lble lu wurk m because uf
phYSical healtl'l problems. Defendants JgYIored
PlamtJtrs need5, placed Plamtlff In a working
area W1tl'l . heaVler concentration of smoke
than h15 ongmal work area. failed to segregate
conference rooms Into smokmg BI1d non-smok-
Ing areu, flUled to prevent Other employee5
from directly antagaru:ung Plamtlff by 'Ittlng
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HIS fourth cause of action, for "breach of
contract," aga:m incorporates the allega-
t.lons contamed in hIS first cause of action,
and alleges further that dunng the course
of hIS employment, "Defendants implied
that Plaintiff would not be termmated so
long as the services he performed were sat-
Illfactory", that he contmued m employ-
ment with defendants because he reason-
ably believed thIS imphcation was true,
that lns job performance "was satisfactory
and each year he receIved a supenor rating
f()r hIS job performance from his supervi-
sor"; and that despite all this, he was ter-
mmated, to his monetaIj' detriment. Henfr
zeJ's flftb cause of action III basically the
same as the fourth, except that it seeks to
assert an "estoppel," alleging that defend-
ants were "aware that through their con-
duct they bad led plamtIff to beheve that
he would only be terminated if his sernces
were not sabsfactory", that plaintiff did so
beheve, and that he rehed to- his detnment
on defendant's conduct by not seeking other
emplo;rment. His cause of action for emo-
tIonal distress in the onginal complaint al-
leged the facts DOV,' contamed in his first
cause of action, relating to aggravating
conduct by SInger,l and asserted that de-
fenda.nt's conduct caused him "severe emo-
tIona1..lluffering . _ which resulted in highJ!.t5
blood pressure .. \nd the continued dete-
noration in health
DiscUSSJOD
L
By the allegatlons contained in Ins first
cause of action. Bentzel seeks to bnng hIS
case within the rule of Tameny v. At/antic
lbchfieJd Co. (1980) 27 Cal3d 167, 164 Cal
Rptr 839, 610 P.2d 1330 In Tameny the
Supreme Court acknowledged that under
next to bun and smokmg, DlOVlIlg Plamllffs
office and telephone WIthOut lellmg Ium of the
move, finng m5 patent law &S5lstanl Wlthaut
adVISing hun. and excludmg bun from meebngs
to wtuch be would normally have been U\\'lted
because be reasonably requesled dtV1s1on of the
room mto smokmg and non.smolung areas, all
of wbicb conduct constituted outrageous con-
duct on the pan..of Defendants "~
:-
-.
.
162 -
'0
.
J88 CAUFORNIA REPORTER
J38 CalApp.3d 293
"the traditional common law rule, oodlfled~
in Labor Code section 2922,' an employment
contract of indefinIte duration is in general
terminable at 'the will' of either party," but
observed "Over the past Beveral decades
. . JudlClal authontJes in California and
throughout the United States have estab-
bshed the rule that under both common law
and the statute an employer does not enjoy
an absolute or totall;)' unfettered right tD
discharge even an at-will employee
"6 Section 2922 provides in relevant
part 'An employment, having no specrfied
term, may be terminated at the will of-
either party on notice tD the other ....'..
In a senes of cases arismg out of a vanety
of factual settmgs in which a discharge
clearly violated an express statutory obJec-
tIve or undermined a Il1"IIlly estabhshed
pnnclple of publIC POlICY, courts have recog-
nized that an employer's traditional broad
authonty to dlSCharge an at.W111 employee
'may be limited by statute. 0 or by consid-
eratIOns of public polley' [CItatiOns.]"
(Id, at p 172, 164 Cal Rptr 839, 610 P.2d
1330.) Applying that rule, the court held
2. OSHA defines the tenns "safe," "safety," and
"health" as appl.Jed to an employment or a
place of emplo;.'tTlent as mearung "such free-
dom from danger to the hie, safety, or health of
employees as the nature of the emplayment
reasonably pemuts" ~b Code, f 6306} The
Occupational Safety and Health Standards
Board, ....,tJun the Department of Industnal Re-
lauons, has authority to adopt safety and
health staJ1diITds and orders ~b Code, i 142-
3), and, where exJ.st.mg standards or orders are
madequau:, the cluef ma, v.'T1te a ~speaal or-
der" to correct aJj llnsafe c:onmtJon, ~vx:e. or
place of employmenL (Lab Code, t 6305,
suM (b)) It does not appear that theTe exist
any standards or orders applicable to tobacco
smoke In working enVlJ"Onrnents such as Hent-
zel's, nor that there eX]sU an}" speaal order
applicable to his workplace
We note thaI there IS II developmg body of
law In other JUT1smcuons whlt:h reeogruzes an
obligation on the pan of an employer under
.orne ClTcumstances to protect employees from
health hazards which may be posed by oga-
rene smoking A New Jerse~' court, nl)'1ng on
the common law obhgatlon of lIJl employer to
funush a safe workplace, has SLued ''The por.
lion of the populatiOn ....luch is espeoally sensI-
tIVe to C1ga:ren.. smoke IS so lagruficant that it
is reasonable to expect an employer to foresee
health consequences BJld to JJ1\pose upon hun a
dut> to abate the hazard wluch causes dlscorn
fort" (Slump v Nell Jersey Bell Telephone
that an employee allegedly terminated for
refusmg tD perform a cnminal act (m that
case, parbcipation in an illegal price-flXlng
scheme) could maintain a tDrt action for
wrongful dISCharge agaInst the employer
CId. at p 178, 164 Ca.l Rptr 839, 610 P.2d
1830 )
Were It not for the proVlBIOJ15 of the
California Occupational Safety and Health
Act of 1973, Labor Code sectIon 6300 et Beq
(hereafter OSHA), we would have little dif-
ficulty eonc1udmg that the complaint states
a rognlzable cl.8Jm under the Tameny prin.
ciple Contrary to Smger's contention, the
questlon )s not 'Whether SInger acted unlaw.
fully by failIng to accede to Hent.zeJ's pro-
tests,: but whether it "violated an express
statutory objectJve or undermlned..JJ finnly ~.
establIshed pnnciple of publIC polle;)'" b;)"
dlschargmg Bentzel for making them
CalIforma has long maintained a polley of
protectmg the right of employees tD VOIce
their dissatisfaction with working condI-
tions Labor Code section 923,3 adopted In
Com pan)' (1976) 1-45 N.J Super 5J6, 529-S30.
368 A.2d 408, Parodi v Ment Systems Protec-
bon SO (9th ar ]982) 690 F.2d 731, VlcJcers v
Veterans Adm (W DWash 1982) 29 FE.P
Cases U97, 30 E.PD 1t27, 352, see, Black-
burn, Legal Aspects of Smokmg m the Work-
pJace (1980) 3] Labor LJ 564, Axel.Lute, Leg-
JSJatJo.rJ A.gamst SmoJong PoIJubon (1978) 6 En-
VU"onmental AffaU'5 301 )
3. Labor Code sectlon 923 proVldes "In the
mterpretallon and appbcatlOn of lhls chapter,
the public policy of th1s SUite IS declared as
foUows [1] Negotianon of terms and condi-
tions of labor should result !Tom voluntary
agreemellt between employer and employees
Governmental BUthOnty bas pemutted and eo-
couraged employers to orgamze III thE' CO~
rat~ and other forms of capItal controL In
dealing With such employers, the Indl\'ldual un-
organIZed worker IS belpless to exercise actual
hberty of contract and to protect Ius freedom of
labor, and 1heTeby to obtam acceptablE' unns
and condlllODs of emplo}'1tJent. Therefore It IS
necessaT) that the indlVldual worJanan have
full freedom of assOClaUOn, self-orgllru2.allon.
and deslgnal.JOIl of representatJVes of his o.....n
clioosmg, to negooate the tenns and condrtJons
of Ius employment, and that be shall be free
from the mterference, resu-amt, or CoerCIon of
employers of labor. or therr agents, In the des-
Ignaoon of such representatives or m self-or-
ganuailOll or Ul other concerted actJ\'Jtles for
.;"
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118 Cal.App 3d 291
BENTZEL v. SI~GER CO.
ale as 188 Cal Rptr 159 (App 11182)
163
J!.t1
1937, declares generally the right of em-
ployees to designate representatIves and en-
gage In concert.:!d actlVlties "for the pur-
pose of ooHectm; bargarnmg or other mutu-
al aid or protection," and while "attempts
to bargam on behalf of a single employee
Ileem . to be the antithesis of the
strength in numbers ph1Josophy which the
statute seeks to encourage and to protect,"
it has nevertheless beer. held that sectIon
923 (II' the absence of an) union) gives nse
by ImplicatIOn to certain nghts on the part
of mdlVldual employees, among them "'the
nght to desIgnate an attorne)' or other Indi-
Vldual to represent him in negotlating
terms and condItIons of hIS employment [so]
that hIS dlS[:harge for so domg constitutes a
'I101atlOn of Labor Code section 923"
(Montalvo v Zamora (1970) 7 Cal App3d 69,
75, 86 Cal Rptr 401).
..,L\learly 40 years ago, the Supreme Court
m Greene v HawaIian Dredgmg Co (1945)
26 Cal 2d 245, 157 P.2d 367, held that pro-
test of workmg conditIons by an indl\ridual
employee could not justify tennmation un-
.der a contract penDlttmg termination "[JJf
for cause the setvlees of the Employee are
not satlllfactory to the Employer ..
(Id, at p 246, 157 P.2d 367) The court
declared "The days when a l!ervant was
practll:aIly the slave of lus master have long
since passed In order that the mgmty of
the employer-employee relation be mam-
tamed and that present-day fundamental
social concepts be preserved, the employee
has the nght ",thout breachmg hIS implied
obligatIOns to his employer to protest fe-
tbe purpose of coDectTve bargalnlng or other
Dlutual lid or protecUon ..
4. Tbl!! Nal10nal Labor RelatJons Act (29 use
f 151 et seq). by contrast, protects only con-
certed actlvtty (see 29 use U 157,
158(aXl)) It hu been held that ""in order to
prove a concerted aCUvtly under. the Act, it
. DeceSSIT)' to demonstrate that the actlVlty
was tOT the purpose of indUCing or prepanng
loT group aCtIon to COl11l<:t a grievance OT a
complamt" (indiana Gear Works v N LR B
(7th err 1967) 371 F.2d 273, 276. accord PIc;.
neer Natura} Gas Co v N LR B 15th Clr J981}
862 fold 408, 418, N LR B v LJoyd A. Fry
Roofing C<I, Inc of Del (6th Cir 1981) 651 Fold
442., <445, Aro, Ine v N L.RB (6th CIt J979)
596 Fold 7]3, 7]8. N LR.B v BuddJes Super-
gardmg workIng conditIOns and rules cf his
employer and request that they be aJ...
tered Broadly viewed, luch conduct is
benefkial rather thar. detrimental to the
employer's interests It tends to Improve
the morale of the employee, ultimately re-
sulting in the exhibItIOn of greater dili-
gence and f"ldelity on his part. The wisdom
and importance of the right to petition 18
not new. The right of the governed to
petitIOn those exerciSing the powers of
government is secured by the Constitutions
of the UnIted States and thiS state (V.S
Const., Fust .Amend.; Cal Const., art. 1,
S 10.) The obhgatJons of the employee in
the instant case are those Implied in law
because considered wise pohcy That policy
must be apphed in the light of the policy
insuring the right to petItion." (ld., at p.
251, 157 P.2d 367.)
There lIIJght be acme question whether
these authontJes, standmg alone, would be
suffIcient to BUsbm Hentzel's complaint
While the court in Montalvo spoke of sec-
tion 923 as giving rise to rights on the part
of mdmdual employees, the opmion reveals
that in fact several employees banded t().
gether in designating an attorney to rep-
resent them And the issue in Greene arose
in the context ot a contractual provision
expressly refening to "cause," rather than
in the context of a 8U1t in contract for
discharge in contraventlon of public policy
W~ are m.indful of the restramt which
courts must exercJSe in thIS arena, lest they
mIStake tberr own predehctlollS for public
polley which deserves recognition at law.
zrJadcm, lnc (5th CiT 1973) 481 Fold 714.717.)
And wtule the actxlns of an mmVldual employ-
ee to enlist the support of other employees for
the purpose of JlDprovmg working conditions
may be as Hconcerted" as group actlvttJes to
the same end (see DreiS & Krump Wg Co.,
1m: v N LR B (7th err 1976) 544 F.2d 320,
328). the "publiC ventmg of a personal gnev-
an~. even. gnevance shared by others, 15 not
a c:oncened actlvtty ~ (Pelton c.steel. Ine v.
N LR.B (7th Cu 1980) 627 Fold 23, 28, accord
In(fIana Gear Works v NLR.B. 1\Ipr&. 371
F.2d 273. Mushroom TrsnspoTtJJtJon Company
v N.LR 8 (3rd Or 1954) 330 f.2d 683, 685)
Thus, we an DOt confronted m this case wtth
any problem of federal preemption
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164
188 CALIFORNIA REPORTER
138 c.LApp.Sd 217
In the ease of protests agaiM! unsafe
workmg condItIOns, however, these authon-
bell do not ltand alone-and dId not, even
before the passage of OSHA The safety of
employees In the work place has long been 8
matter of prime legtslatlve eoncern. Labor
Code section 6400 provides. "Every employ-
er Bhall furmsh employment and a place of
emplo)'IlIent which are safe and healthful
for the employees therein.... Section 6401
provides "'Every employer . " IhalI adopt
and use practices, means, methods. opera-
tions, and processes which are reasonably
adequate to render BUch employment and
..l!.u place of employment we...f!.nd healthful
Every employer shall do every other thing
Teasonabl} necessary to protect. the life,
safety, and health of employees" Section
6402 provldes "No employer shall require,
or permIt any emp10yee to go or be many
employment or place of employment which
IS not safe and healthful" Section 6403
provides in part "No employer shall rail or
neglect [~(c) To do every other
thtng reasonably necessary to protect the
hfe, safety, and health of employees" And
SectIOn 6404 pro",des "No employer shall
occupy or mamtam an~' p~ of employ-
ment that is not safe and healthful" These
provisIOns denve from a statute adopted in
1917 (Btats 1917, ch 586. ~ 34. p 862.)
It reqUITes httle anal~'slS to perceive that
the legtslatlve purpose underlying these
pro\'lSIOns would be substantially under-
mined If employers were permItted to dis-
charge employees simply for protes'bng
working conditIOns whlC:h theJ. reasonably
beheve constitute a hazard to theIr own
S Labor Code seCUon 6310 PJ'OV1d6 "(a) No
person shall dIscharge or m any manner dls-
CnlI'.lDilte agamst an}" emp~ bel;ause such
employee has either (I) made any oral or wnt-
ten complamt, to thf' dl,,'lSIOO. other govern-
mental agencies haVl1lg statutory responSIbility
for or asslstlng the dIVISion Wlth reference to
employee safet~ or health. his employer. or Jus
representatives, or (2) l1IstJtuted or caused to
be l1IstJtuted any proceeding under or relating
to his nghts or has testlfied or IS about to
temf)' m any such proc:et'dln~ or because of the
exercise by such employee OIl behalf of twnself
or others of an)' nghts afforded !tun. In (b)
Any employee wbo 15 dlscharSed, threatened
wllh discharge, demoted. suspended, or m any
~~.
'" ~~-~-I..1.. -. ..-""----- _ _ J _ i' _ ~
;:::~~r~ --:~.._..i~~~~:---~ ""'IT~:_;_~ ~-=-~ ~--:.~.......~~-:;~~~-~~~:t~-
.
...
health or safety, or the health or safety of
others AchIevement of the statutory o~
jeetlVe--& safe and healthy worlong enVJ-
ronment for all employees-requires that
employees be free to call their employer's
attentIOn to such eonditJons, 80 that the
employer can be made aware of thelT exist..
ence, and given opportumty to eorTeCt them
if correction is needed The public policy
thus imphcated extends beyond the ques-
tion of faIrness to the part.Jcular employee,
it concerns protection ot employees ag&1nst
-J:etahatory clsmissal for conduet which, 1D
light of the statutes, deserves to be encour-
aged, rather than Inhibtted. In that re-
spect, the policy at stake is similar to that
whieh informed the court'Jt decisIon in Pet-
ermann v lnternational Brotherhood of
Teamsters (1959) 174 Cal.App.2d 184, 344
P.2d 25, whieh held that the state's policy of
encouragmg truthful testimony before leg-
lSlatlVe bodIes \\. ould be undennined if an
employer could terminate an employee for
refusing to commit perjury.
Hentzel's problem, ironically, is that the
Legislature has now expressly eomtnned
the protected status of renam actiVIty on
the part. of employees in relation to safety
and health matters, by prohibiting dis-
charge or dlscnmination because of such
actlVlty (~ 6310, sub (a)), by declaring vie--
tuns of discharge or dlscriminatJon to be
ent1tled to remstatement and reimburse-
ment for lost wages and work benefits
(; 6310, suW (b)), and bJ providing for the
mamtenance of SUIt by the Labor Commis-
sioner on behalf of victims under certain
circumstances (9 6312.)'
other 1IllUUleT dtscnmmated aga.mst in the
terms and c.ondJUons of such empl03'ment by
his employer becau:oe such crn~ has JnIlde
a bona fide oral or \\'ntten complamt to the
dlVlSlon, other governmental agenoes bavmg
statutory responSIbility fOT or asSIsting the dIvl-
Ron WJth reference to employee safety or
bealth, ius employer or Jus represmtatnre, of
unsafe worlung condJUons, << work practlc:es,
III lus emplo}ment or place of .o.-uy:Oyment
shall be enutled to ~nstatemellt and reun-
bursement for lost wages and work benefits
caused by such acts of the employer Any
employer who willfully refuses to rdure, pr0-
mote, or otheT\\1Se restore an employee or for-
mer employee wbo bas been detemuned to be
:. -.:::.::: ::::-i_-=-c..:.~~~""""- ~-~~-::."': ~!':!':...,~~,,-'<.~ - -:' ~.;.'!'!Ilt ~-:-3'_""~'.:':~~: ;'~~..:"!"'.
.~_~t.~:~.,i4:-~~.. -';~~Ol--,l"':~ . .<~,.?~~~.:: ~ y~~~ -.;~~- -. _ ~'-.~ .-. ~ _ ':" ~ -~;-:~ -
----~~'J--~-~....:;.~ ~ ....~"'?l.---46....\----:-~~....~..,."'._~, .....-~. -~-...:_-..-.....",,~--------..-.--
_ _ :;:::- "'.;..,:'..:.- ~..:.=t--;'t'~ ~~"... '- .. ~_~-..:-_ -.o.::f~~,:"-~n:"..d'~'7;~ __ _~ ''''v~~~-~..r~~.!;
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- ~
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118 Cal.App,3d 300
HEr..'TZEL v. SINGER CO.
CIte... 188CaIRptr J!l9 IApp 1982)
165
A.
,
~
J!.n ..1fI] It seems clear that Hentzel€. alJega-
tJons bring him 'WIthin the scope of protec-
tion of JeCtlOD 63JO InitlsHy, that section
was mtetpreted as limltmg protection to
complamts made by employees to the DIVI-
sion of Labor Law Enforcement (DH7slOn
of Labor Law Enforcement v Sampson
(1976) 64 Cal App 3d 893, 135 Cal Rptr 23),
but following that decisIOn the Legislature
amended section 6310 expressly to cover
complamts made to the dnnslOn. and "other
governmental agencies haVing statutory re~
sponsibihty for or assIstmg the diVIsion
WIth reference to employee safety or health,
Jus employer, or Ius representahve ".. ..
(Stats 1977, eh 460, ~ 1, P 1515, emphasIS
added) And, unhke aectlOn 6311, which
protects the more drastic eondud of re-
ellgtble for such relunng or promotion by ..
BIlevance procedure, arbltratlon, or heanng au-
thONed by law, 15 guilty of a mlsdemeanQr h
Labor Code section 6312 provides "Anyem-
ployee "'"ho bebeves that he has been dIs-
charged or otheI'Wlse dlSCrlmmate<! agamst by
any person in \'1olatloo of Section 6310 or 63 I 1
may, WlthJn 30 days after the occurrente of the
Violation, file a complamt With the Labor Com-
missioner aJ.legmg tile dfsc:nmjnation Upon
receipt of the complaint, the DIVISion of Labor
Standards Enforcement shall cause such Inves--
Ugation to be made as It deems appropnate If
upon mvestlgatJon It determmes that the proVl.
cons of Secuon 6310 or 6311 have been Vlolat.
ed, It shall bring an action In any appropnale
court apinst the pef!ion who comnutted the
violation In any such acuon the couru shall
have jun5dlc:tlon, for cause shown, to restram
Violations of Secbon 6310 or 6311 and order all
appropriate relief including rehmng or rem.
ItIltement of the employee to tus fonner poSI.
tion v,"lth back pa)' [11 Wlthm 30 days of the
receipt of a complamt pursuant to tJus sec:uon,
the DIVISIon of Labor Standards Enforcement
mall review the facts of the employee's com-
plaint, let I bearing date or notify the employ-
ee and the employer of its deciSIOn, and, where
Gei:esSMY, begin tlle appropnate court action
to enforce such 4ec:Jsion "
.. Labor Code aect10n 6311 proVIdes "No em-
ployee ..h..n be laid off or discllarged for re-
fusmg to perform work In the perfannance of
wblcb this code, any occupational safety or
health .andard or any ..rety order of the dlVl-
a10n or standa.rd! board will be Vlolated, where
luch violation would create. real and apparent
huard to the employee or his fellow employ.
ee, Any employee who ill laid off or du-
charged in VIolation of this section or is other- .
Wi5e not paid because be refused to perform
work m the performance of which this code.
':
...
f
fusing to work only where some "occupa-
tional safety Dr health standard or any safe-
ty order of the mvwon or standards board
will be VIolated,"' sectlOn 6310, subdh"lSion
(b) apphes to "any oral or wntten complaint
_ WIth reference to employee safety or
health" We take this to mean that an
employee III protected against discharge or
dISCrimination for complaining in good faith
about working condItIons or practices wrnch
he reasonably believes to be unsafe, wheth-
er or not there~xlsts at the bme of the -1!.oo
eomplamt an OSHA standard or order
WhlCh is being VIolated 7
It follows that the enforcement provi~
sions of seebon 6312 were also available to
Hentzel If Hentz.el had filed a complaint
WIth the Labor CommISSioner WIthin 30
my occupational safety or health standard en-
any safety order of the dlVlSlOn or standards
board will be violated and where such nolauon
would cr-eate a real and apparent hu"rd to the
employee or Ins fellow employees shall have a
nght of .c:uon for wages for the tune such
emplayee 15 wnhout Wbrk as a result of such
Jayo.ff or discharge, pnmded, that such em.
ployee notifies Ius employer Df hIs mtentlon to
make such 8 daun Wlthm 10 days after bemg
la1d off or discharged and files Il claim Wlth the
Labor ConumsSloner Wlthm 30 days after bemg
wd off, or discl1arged or otherwue not paid m
violauon of this section "
7. The If!dentl CDuI'tS haw l'2acbed .. 5imllar
conclusion WIth respect to the prOhibition
agamst I'f'tllh"!lon contaIDed in title VII Df the
en'll RIghts Act of J964 (42 use f 2000e et
Ieq) SecuOll 704(a) of that Act prohibits ~taI.
lIluon 111 response to mformal opposluon to
"any practICe made an unlawful employment
praroee" by Utle VII (42 use t 2000e-
3(a}) Various CU'CUlts have held that a reason-
able and eood faith beb-ef wt the pl'IIcuce
opposed IS unlawful is SuffiCll!tlt to Invoke the
protectlon Df section 104(8) (See MonteIrO v
Poole Silver Co Os!. Cu 19SO) 615 F.2d 4, 8,
Berg v LaCrosse Cooler Co (7th Dr 1980) 612
F.2d 1041, 1045) These declSlons rec:ogruze
that the inrtJatwe of aggrieved' employees
would be "severely clnlled 11 they bore the nsk
of discharge whenever they were unable to
estabhsh conduslVely the ments of their
clatms" (PlU'ker v Balumore & 0 R Co (D C.
Dr 1981) 652 f.2d 1012. 1019) and that to bDld
othetWlse "'Would tend to force employees to
file formal charges rather than 5eek conaha-
lion or informal adjustment of gne\"ances"
(SiBS V City Demonstrabon Agency (9th Or
1978) ~ F.2d692, 6~)
..
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. --~-:-=--_~-~.' 1 -~]_::-.:;::-'-~~~-~~ ~~.....~-~~-- ~~p._:.~ ~"'-'"q". =~=-~~~;.i-~
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.
166
188 CALIFORNIA REPORTER
138 CaIApp.Sd lOG
~Dl
whether the state OSHA destroyed a cause
of action othefWlse mamlamable "{WJhere
a new right,--one not existmg at common
law, is created by statute and a statutory
remedy for the mfnngement thereof is pn>
vided, such remedy IS exclusive of all others.
[CItations]" {Orloff v. Los Angrles Turf
Club (l947) 30 CaI.2d 110, 112, ]80 P.2d
121} But. "[i]f' a right was established at
CXlmmon law or by statute before the new
Btatutory remedy was created, the statutory
remedy is usually regarded as merely
. cumulative, and the older remedJ maJ be
, pursued -at the plalntUf's election. [CJta-
tions r (WItkin, 2 Cal Procedure (2d ed
1970) ActIOns, , 8, P 886)
"CAL-OSHA was adopted in response to
an mVJtatJon under the fede.ra.l act fOT
states to assume responsibifity for develo~
ment and enforcement of occupational safe-
ty and health standards, pursuant to a plan
approved by the Secretary of Labor. (29
U.s C i 667) In order to gain lIucb ap-
proval the state plan J8 required to adopt
standards and means for thelT enforcement.
"at least as effective" as those provided
under the federal statute (29 US c.
i 667(c)(2)} Sections 6310 and 6312, as
ongInal1y adopted, were obviously designed
to meet that threshold requrremenL At the
time of their adoption, at least a portion of
the nght.s protected by section 6310-the
nght to testify Without retaha.tJon-had
been judlclall~ recogmzed (Petermann \'.
Int.ern3tJOnaJ Brotherhood of Tea.m.sters,
supra, 174 Cal.App.2d 184, 344 P.2d 25.)
That the state Legislature intended. by
adoptmg those sections, to limit state causes
of aellon or rememes seems highl)' unlikely
The Califorma statute, mOTeO\ler. con--
tains a proVlsion-6eCtlon 6310, subdiviSlon
{b}-whH:h has no counterpart in the feder-
al act. That seetion did not appear in the
anginal statute, Jt ,,'as adopted the follow-
ing year (Stats 1974., ch. l284, i 9, P
2782.) And, Judgtng from its language and
placement, section 6310, subdirision (b)
lends further support to the mference that
the Legislature did not intend tbe remedJa)
procedures of secbon 6312 to be excluSIVe.
The fIrst 5entence of that section declares
f
a
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138 CaLApp.3d 303 HEKTZEL v. SINGER CO 167
Cll.e as '88 Cal Rptr 159 (App 1182)
that employees who have been the vlctlms sectIon 6310, subdivisIOn (a), 1t instead 5pec.
of prohibited retaliatIOn "shaH be entItled Ules independently the conduct which is
to remstatement and relmbursement for prohlblted And, the second sentence
lost wages and work benefits caused by makes it a misdemeanor for an employer
such acts of the employer" Smce section wtllfully to refuse ""to rehire, prorr~~, or
6812 already proVlded that, in SUIts by the othel"WJSe restore an employee or lonner
diVlslon. the courts "shall have Junsdlctlon employee who has been determined to be
. .. to . order all appropnate rehef In. eligible for such rehiring or promotIOn by a
eludmg rehinng or reinstatement of the grievance procedure, arbitration, or bearing
employee to his former position "nth hack authonzed by law" (EmphasIS added)
pay," the section 6310, l!ubdl\,'ision (b) lan- ObVIously, that sentence contemplates that
guage, if It is not redundant, must serve a a gnevance or arbitral tribunal mIght prop-
dllferent function It is possible that the erly order reinstatement of an employee
LegtSlature adopted the fIrSt sentence of chsmissed in retaliation for conduct. of the
aectlon 6310 tn order to make certam that sort protected under section 6310, 8ubdlVl.
courts, m considenng relief under section 810n (b) And, if the Legislature contem-
6312, would exercisE their Junsdiction af. plated that the section 6312 procedure
frrmatl\.ely to order remsta~ent With would be otherwise exclusive, it seems more
back pay, but that seems unhkel~' There likely that the lleCOnd sentence of sectlOn
appears no reason to believe that courts 6310 would have referred specifically to
would fail to grant such relief when au tho- that procedure, rather than more generally
nzed to do 50, m light of the fact that such to a "'hearing authonzed by law "
relief ha.; beco~e standard under l~bor law [3, 4] Smger argues In the alternatIVe
~tutes, and In any ev~nt sectIon 6312 that Bentzel's complaint based upon retaha-
Itself would ~em a more hkely place for an tory d18mlSSal was properly dismissed be-
amendment dU"ECtmg the court5 to exerclSe cause he failed to exhaust the remedv avaIl.
their junsdlctlon m a partIcular manner In able under section 6312 It relies, "m sup-
IUlts brought under that sectIon It seems port of that argument, upon a deeislOn of
more probable that sectIon 6310, 8ubdlvlSlOn the Second C1TCUlt Court of Appeals in
(b) was desIgned, In part, to assure the McCarthy v Bark Peking (1982) 676 F.2d
availabihty of luch a remedy m pnvate 42, 46, cert appl1ed for Jul)- 9, 1982, Su-
SUIts. (See CIV Code, ~ 3390, Comment, preme Ct. Dock No 82---53. in whlch the
Arbltr:atJon' Grounds for Vacatmg .A ward court decltned to decide whether federal
SpecIfic Performance of Personal Se11:?ces OSlLl\.. creates a pnvate eaase of action,
Contract (1960) 7 UCLA L R 507, Mtr of bold1ng that if such a cause of actIOn does
St.aklmskl (p}Tamld Elec Co) (1959) 6 exist it could be invoked only after the
N Y.2d 159 [188 N Y.S.2d 541, 160 N.E.2d fihng of a tImely eomplaint with the.JSecre- ~GS
78) ) tary of Labor proved fruitless ThlS argu-
Other parts of section 6310, subdIVision ment suffers, however, from a defect Slml.
(b) also cast doubt upon Smger's exclusivity lar to that inherent In Singer's contentlon
theory. The language of that section is self that the remedy under section 6312 is exclu-
contamed, rather than makmg reference to sive. Bentzel's complaint does not depend
I. To remedy an unlawful cbschuge based upon (as lU!lended 29 U S C t 16O(c)) (Albemarle
racuJ., relIgaous or RXUB.I dlscnrmnallon, Con- Paper Co v Moody (1975) 422 U.S 405,419.
aress has authonzed dlsmct courts to require 95 S Ct 2362. 45 L.Ed2d 280) Section 100c).
l'emstatemenl and award back pay (TIt. VII, of course, also prOY:ldes for remedial orders
CJV1I RIghts Act of 1964. i 706(g), as amended reqwnng remstatement pd back -pay (Id)
by 42 li.S C t 2000e-S. let Edwards v School M[U)nder statutory schemes, wben reinstate-
Bel of City of Norton. V. (4th CJr 1981) 658 1N!nt [as well as back pay)1S not ordered m an
F.2d 951. SI&S v City Demonstration Agency. employment cbscrinunatlOn ease, the Clrcum-
aupra, 588 F.2d 692} The "make whole" proVl- It&nces are scrutlrnzed very carefully [ata-
l10n of uUe VII was expressly modeled on sec. bon 1" (SeLby v Alameda County Water DrSL
tion JO(c) of the National Labor Relatlon5 Act (9th Qr1976) 545 F.2d 1157, 1163)
i
y
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IS! ~~IApp..3d 388 METROPOUTAN WATER DlST. v. DORFF
Che.s 188 Cal Jtptr lit (App 1!162)
169
Cal 3d 211, 185 Cal Rptr Z10, 649 P.2d 912 )
This leaves the fourth and fifth causes of
actlon of hIS IlTSt amended complaint, and
the fifth cause of action of hIs onginal
complamt, to whIch demurrer was sus-
tained
[5. 6] In support of bis fourth cause of
actIon, Hentzel invokes Pugh v. See's Can-
dles, Inc. supra, 116 Cal.App.3d 311, 171
Cal Rpt:- 917, which held that under the
CIrcumstances of that case, an employee
was entItled to a Jury determination as to
the eXlStence, and alleged breach, of an
implIed promise on the part of his employer
not to ternunate him arbitrarily, or without
cause The facts of that case were qUIte
dIfferent from those alleged In Bentzel's
complaint, however Pugh had been em-
ployed for 32 years, he had received conSIst-
ent commendation and promotions for hIS
work, he had been liSsured by the preSIdent
of the company that hIS future was secure
if he dId a good Job, and there was endence
that the company had a polIcy and practIce
of not terminating admmistrative personnel
except tor good cause Here, Hentzel has
alleged merely that defendants "Imphed"
that he would not be terminated so long as
the servlces he performed were satIsfactory
'WhIle an unplied in-fact contract arises
from conduct, WIthout express words of
agreement, so that "only the facts from
whIch the promise- is implied must be al.
leged" (Youngman v Nevada IrrlgatJOll
DlSt (1969) 70 Cal.2d 240, 247, 74 Ca1.Rptr
898, 449 P..2d 462, see a.lso Thompson v.
CaIiforrua Bre~"lng Co (1957) 150 Cat .
App.2d 469, 473, 310 P.2d 436), we conclude
that Hentzel has not alleged facts suffiCient
to support such an imphcation. Smce Pugh
had Dot been decided at the bme of the
tourt's rulIng on the demurrer, however, we
tonsider It appropriate to allow plaintIff to
amend Ius complamt to allege such facts 1f
he can We reach the same conclusion ",;th
respect to the ruth cause of action, based on
estoppel (Cf DIVisIOn of Labor Lall' En.
forcement v. Transpacif;c Transport8.tion
GJ (1979) 88 Cat App 3d 823, 152 CaLRptr
98.)
.J17] The trial court's ruling sustammg de- -1!.05
murrer to the f"dth cause of actIon of the
original complaint, for the tort of mtention-
al infliction of emotIonal mstress, was a~
parently based upon Smger's argument that
the subject matter was preempted by the
Workers' Compensation Act (Lab Code,
t 3600 et seq) It bas been held, however,
that the tort of intentional infliction of
emotional distress constitutes "an entire
class of Cl"'"11 wrongs outside the contem-
plation of the workers' compensatlon sys-
tem" (Rentena v County of Orange (1978)
82 CaLApp 3d 833, SU, 147 Cal Rptr 447),
and that in the absence of allegatIOns of
disability compensable under the workers'
compensation scheme a suit may be main-
tamed. seekmg recovery for such damages
(McGee v McNall,}' (1981) 119 Cal App 3d
891, 895, 174 CaI Rptr 253, see also JOMS-
Manville PrOOucts Corp v. Superior Court
(1980) 2:i CaI3d 465, 165 Cal Rptr 858, 612
P.2d 948) Following this authonty, we
conclude that the trIal court erred In sus--
t.aming the demurrer to tJllS cause of action
The cause is reversed and remanded for
further proceedlllgs consistent with the
views expressed herem
MILLER and SMITH, JJ ,concur
138 CalApp 3d 388
.l1'he METROPOIJTAN WATER DIS--1!.U
TRICT OF SOUTHER.TIJ CALIFORl't.'1A.
. public corporation, Petitioner,
..
Karen E. DORFF. as Executive Secretary
of The Metropolitan Water District of
Southern California, Respondent.
cw. 29121.
Court of Appeal, Fourth DIStrict,
IhvISion 2
Dee. 21, 1982.
MetropolItan water mstrict brought
/" original proceeding seeking writ of man-
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. Employe :-
, .sued on f
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smoking ~
$1 .5 million sought ~
In Jaw's first test ;
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By Hilary Abramaoa ~
aee sc.., Woller
In Uu: tlnr lII_il Cllallel\&lllll a
prlva,e employer 00 Sacramenln
County's new smoking ordlllllRCe ..~
real elIta1e &&enl bas UllecI for $1 ~
million from Century %1 EJtboro..,
Really .
VI PbJlUJI!i.' 4~, rued Ibe IUlt Tues..
11II)' IIpIlIst Ule really firm aDd 1J.9.
owner, DavId SlrlcllJlnll Sbe:
claimed thai SlMcklang tIred lier I,\:
retallallOll for lIer demonc1 IbaT 11&
CGmAly wlllllbe COUllly ordJaaoce :
On ~R 11. rbe COURIY supervisors.:
p&ssed IIn orduJaoce Iblll said oon,
smoken ~ lIellllUld a lIIlOke--tr.~
/lrea as 1002 lIS ney CIIR sllow Ilia!! .
smoluog Ilftec~ their lIullh TIUj.
Ordillllnce will not oflkUilly be en)
forced In pnvate bWlIoeses deall/l8
WlIblbe PUblic untll Aprll15 ~
AccOrdJllg 10 Pb IIUps Ibe lala.
SlnCklmg wnen he hired ber In Maf .
11I83 IlIat sIle was allergic In smuk e
IInd Stnckling ofler"d 10 10511111 .;
large IIlr pu,;lller ID llIe otflce :
"Wlj bud 12 people In Ihe one;.
room, windowless ornce." said PbJl.
lips .Half of (bem 5/TIoked 1 wlI.(
ClItIgblng trom bronchial InfeCIIOll:lJ .
lInur Olle day I vomlled r WWi oul or .
work becll_ of Ille bmnclllaJ Intcc,\ .
lions from lasl Octuber IbruIIg/l!:
December r mOVell my dllBiL IUt,.
Janullry. bul because SlrlcJllio..
never IaBIaUed a larae purjflltr as b~
auaesled DotbJll& /lelped . =
Qq- JIIO 15, PhillIps SIlI<l slle deU: .
Yered a leller 10 ber boss demandln,
be comply Willi tbe smoking onll.
Dance AUlluuglJ StncllUng WrOle (
leller IIdvtSin~ employees lbal !I!!
dlda', wanl I!lem smokloll In the ot..
tlce, lIIllel PtuUIps, emploYBil$ conlln~ .
lied lo!llllo..e .~
00 JIIO 11, Strlr:.llllng fired PhU-' ~
Upa .:
-He lold me It was because 1 bill ~
been non jlfodllcllv" e1Ufhlll '''~:
tbree G1onlb$ r was borne SIck; IlIJIt .
PnJlJlps 'Bill r CODteod TIIaI he flret!:
me ror prDlIl81111il the ImolLe ana.
req-11lIl lhal be e..force Ibe orclll .
Q6IIce .
PtJUUps "'TOIe a letter aoolll bet
lellhillllUon 10 Harry Sen Ille CDlln"
Iy. 10dldlMaJ bygenlsl cbarged "Uto
enrurclng the ordinance On Jan 24:'
Sen wrOle 10 Stnckling, reminc11n1l _
him 10 comply Willi Ille Drd.ft80C4t
lht requires POSUIII no-smllJr.ln"
SIp In bUSlJleases rrw>ueDlell by Iba
PUblic " -.. .
Strl-:"ling coutd no' ~ reRCb~
'lIT cornmen! ~ :
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