SR-8-E (24)
CA:F:\atty\strpts\kas\code444.1
City Council Meet1ng 10-25-94
Santa
Monlca~a~rnla
NOV 1 5 1994
OCT 2 5 199'1
TO: Mayor and C1ty Council
FROM: C1ty Attorney
SUBJECT: Chapter 4.44 Regulat10n of Smok1ng
INTRODUCTION
On August 2, 1994, the C1ty Councll d1rected the C1ty
Attorney to prepare an amendment to our smoking ordlnance to
1nclude all indoor workplaces In Santa Mon1ca and requested Clty
staff to contact those affected regard1ng these changes.
BACKGROUND
The primary purpose of the amendments to thls ord1nance 1S to
prov1de greater protection to workers and the publ1C from the
hazards of second-hand smoke. ThlS wlll be accompl~shed by
narrow~ng the exemptions, creating a stronger local ordlnance to
reach our goals 1n the event that the state law does not wlthstand
a legal challenge and regulatlng harmful effects of smok1ng unt1l
the state law goes lnto effect. Addltlonally, these changes wlll
make the language of our ordinance more cons1stent wlth Sectlon
6404.5 of the Labor Code relating to Occupational Safety WhlCh
goes lnto effect on January I, 1995.
Sectlon 6404.5(a) states ln
part that:
Dr.l 2 :: 199't
NOY 1 5 1991t
8E
lilt lS the 1ntent of the leg1slature In
enact1ng this sect10n to proh1b1t the smok1ng
of tobacco products in all (100 percent of)
enclosed places of employment 1n this state."
To the extent that the state law does not supersede all local
and government and workplace restrlctlons, 1t 15 the 1ntent of the
legislature that any area that lS not deflned as "place of
employmentn pursuant to subsectlon (d) of 6404.5 or In whlch the
smoking of tobacco products is not regulated pursuant to
subsectlon 6404.5(e) shall be sUbJect to local regulat10n of
srnok1ng of tobacco products. A copy of the complete text of AB 13
1S attached to this report.
There are fourteen (14) ltems that are not lncluded In the
def1nitl.on of a IIplace of employmentn accord1ng to Sectlon
6404.5{d) of the Labor code. In the event Sectlon 6404.5 15
repealed or modlfled by subsequent legislatlve or Jud1c1al actlons
so that the 100% smOking prohibl.t1on is no longer appl1cable to
all enclosed places of employment in Californla, local government
shall have the full rlght and authorlty to enforce prev10usly
enacted, and to enact and enforce new restrlctlons on the smok1ng
of tobacco products In enclosed places of employment wlthln thelr
Jurlsdictlons 1ncludlng a complete prohlbltlon of smok1ng.
Seven of the fourteen areas that the state excluded from the
deflnltion of a "place of ernploymentll lnvolve sUbJect matter that
would not be very relevant to the goals of the City. The councll
has vOlced concerns ln the areas of restaurants, bars and places
2
of public accommodations as well as indoor work areas in general.
Accordingly, we have not incorporated the following state excluded
subjects In our extenslon of smoking prohlbltlons:
(1) Sixty-five percent of the guest room accommodations In a
hotel, motel or Slmllar transient lodglng establlshment.
(2) Retall or wholesale tobacco shops and prlvate smokers'
lounges.
(3} Cabs of motortrucks, as defined in Section 410 of the
Vehlcle Code or truck tractors, as defined In Sectlon 655 of the
Vehlcle Code, If no nonsmoklng employees are present.
(4) Theatrical productlon sltes, if smoking 15 an 1ntegral
part of the story In the theatrlcal productlon.
(5) Medlcal research or treatment sltes, 1f smok1ng 1S
lntegral to the research and treatment being conducted.
(6) Prlvate residences, except for prlvate res1dences
llcensed as famlly day care homes, dur1ng the hours of operatlon
as fam11y day care homes and 1n those areas where chlldren are
present.
(7) Patlent smoking areas ln long-term health care
facilities, as defined In Section 1418 of the Health and Safety
Code.
The above areas wlll be governed exclus1vely by the State
law.
Santa Monlca Munlclpal Code Sectlon 4.44.030, regarding
"General Proh1bltions" lS amended to lnclude seven areas that the
state has excluded from the defin1t1on of places of employment.
3
The seven areas that are lncluded ln our amendments are:
(1) Lobby areas ln hotels, motels or other Slmllar transient
lodging establlshments.
(2) Meeting and banquet rooms In a hotel, motel or other
tranSlent lodging establishments slmllar to a hotel or
motel, restaurant, or publlc convent~on center.
(3) Warehouse facilltles
(4) Gaming clubs
(5) Bars and taverns
(6) Employee breakrooms
(14) Employers wlth five or fewer employees.
~
A more extenslve descrlptlon of these fourteen areas excluded
by the state can be found In the attached copy of AB13. Language
that was inconslstent with the state law ln thlS area has been
strlcken from sections 4.44.10, 4.46.10, 4.44.40, 4.44.50 and
4.44.60.
RECOMMENDATION
It is respectfully recommended that the ordlnance amendlng
Sectlon 4.44.010, 4.44.020, 4.44.030, 4.44.040 and 4.44.060
regardlng regulatlon of smoking in the city of Santa Monlca be
lntroduced for first readlng at the October 25, 1994 meeting of
the city Council.
PREPARED BY: MARSHA JONES MOUTRIE, Clty Attorney
KIMERY A. SHELTON, Deputy City Attorney
4
CA:f:\atty\munl\laws\kas\code444.2
Clty Councll Meetlng 10-25-94
Santa Monlca, Callfornla
(CCS)
ORDINANCE NUMBER
(City Councll Serles)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA AMENDING
SECTXONS 4.44.010, 4.44.020, 4.44.030,
4.44.040.,4.44.050. AND 4.44.060 PROHIBITING
SMOKING IN INDOOR PLACES OF EMPLOYMENT, BARS,
RESTAURANTS, HOTEL AND MOTEL LOBBY AREAS,
MEETING AND BANQUET ROOMS, WAREHOUSES,
GAMING CLUBS, AND EMPLOYEE BREAKROOMS
SECTION 1. Santa Monica Municlpal Code section 4.44.010 15
amended to read as follows:
4.44.010 Declaration of purpose.
The City Councll of the city of Santa Monlca finds and
declares:
(a) Smoklng is a posltlve danger to health and a cause of
materlal annoyance, lnconvenlence, discomfort and a health
hazard to those who are present in confined places.
(b) The publlC health, safety, and general welfare of the
resldents of, persons employed In, and persons who frequent
the Clty of Santa Monlca would be furthered by the prohlbltlon
and regulation of smoklng in public places, workplaces, and
restaurants.
(c) This Chapter regulates smokl.ng in publlC places,
selected workplaces, restaurants ~r.~ burr, Lo the cx~~nt thal
~hey are :aot c:vercQ 1:y li1~:)r Co:::!u r;"ction E.c04.5.
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~~ ~~~~l~tc~.SECTION 2.
Santa Mon1ca Munic1pal Code-section 4.44.020 1S amended to
read as follows:
4.44.020 Definit1ons.
The following words and phrases, as used 1n th1S Chapter,
shall have the follow1ng rneanlngs:
(a) Bar. An area where alcohollC beverages are served for
consumptlon on the premises and 1n which the servlng of food,
lf any, 1S only inc1dental to the consumption of such
beverages. Although a restaurant may contaln a bar, the term
"bar" shall not 1nclude the restaurant dl.nl.ng area.
(b) Employee. Any person who l.S employed by any employer
ln conslderation for monetary compensation or prof1t,
1ncluding an l.ndependent contractor regularly performlng
serV1ces at the place of employment of the other contractlng
party.
(c) Any person, partnershlp, corporatlon, 1ncludlng a
publ~c entity, who employs the serVlces of more than flve (5)
employees.
(d) Place of Employment. Any enclosed area under the
control of a public or private employer WhlCh employees
normally frequent durlng the course of employment, 1nclud~ng,
but not ll.mlted to, work areas, employee lounges, conference
rooms, and employee cafeterias. A private residence is not a
place of employment.
(e)
Restaurant.
Any
public
or
prJ..vate
eatlng
2
establishment of any kInd whatsoever WhICh g~ves or offers
food for sale to the pUblIC, guests, patrons, members, or
employees IncludIng, but not lImIted to, any coffee shop,
cafeteria, luncheonette, soda fountain, shoppIng center or
mall, prlvate school cafeterIa or eating establishment,
organizat~on, club, includIng veterans' club, except that the
term "restaurant" shall not include a "bar'1 as defIned above.
Restaurant shall include any common dIning or seating area
whether shared or under the exclUSlve control of one or more
businesses.
(f) Smoke or Smoking. The carrYlng or holding of a
lIghted pIpe, CIgar, or CIgarette of any kind, or any other
lighted smoking product or eqUIpment used to burn any tobacco
products, weed, plant, or any other combustIble substance.
Smoklng lncludes the emltting or exhallng the fumes of any
pIpe, CIgar, or cigarette of any kInd, or any other lIghted
smoking equipment used burnIng any tobacco product, weed,
plant, or any other combustlble substance.
SECTION 3. Santa Monlca MunIcipal Code Section 4.44.030 IS
amended to read as follows:
4.44.030 General prohlbltlons.
It shall be unlawful to smoke In the follOWIng places:
(a) Those portIons of any bUlldlng, structure, or other
enclosed facllity open to the general publIC for the prImary
purpose of holding meetlngs or exhlbltlng any motion picture,
3
stage production, muslcal recltal, or slmllar performance.
(b) Those portlons of any buildlng, structure, or other
enclosed facility open to the general pUblic for the prlmary
purpose of a museum, llbrary, or gallery.
(e) Any elevator.
(d) On any bus used in the buslness of transportlng
passengers for hire ln the City, exceptlng for charter
operations.
(e) Any restroom open to the general publlC or provlded
for use to customers or patrons.
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(f) Those areas wlthin the bUlldings or structures of any
health care facllity whJ.ch are open to Vlsltors to the
premlses,
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when all patlents smoke or consent to smoklng.
(g)
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retall
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establishments
or
pharmacles, includ1ng grocery stores and supermarkets,
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(h) Any indoor or enclosed port~on of any restaurant. All
restaurants ::::~=j~:::::: :::; :::::.:::: ::;~=:;~c~:.::::. shall post "NO SMOKING"
slgns w1th letters at least one (1) lnch 1n helght and/or the
lnternatlonal no smoklng symbol ln any wal tlng area
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~~ ~ ~~~--~~O!~l~g ~rc~.. and d1n1ng area.
4
(i) Every building owned or leased by the C1ty of Santa
Monica and used for munlclpal purposes. If only a portion of
a bUlld1ng 1S used for mun1c1pal purposes, this subsectlon
shall apply only to that port1on of the bU1ld1ng used for
mun1cipal purposes.
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(j) All :cbbyareas in hotels, motels or other similar
transient lod;ing estaDl~s~ents&
For the purposes o~ this
parac;1raph IIlo.bby" J:".eans the c::m\JIIOTI :;UbJ J C ilrC3. t:'! :juch an
establish.:::.er.L in wtu ct: r~c:i1~.tr~ t i-:r. or oltJt-,r s.ll'lilar or
related tran~acL:or.5, =r beth are"conduoted and in which the
establishments guests and members of the pUblic typically
congrega.te~
(k) Meeting and banquet =00D5.
nanquet roo~s ~ithi~
restaurants and ba~qu~t rooms withi~ hotels even ~hen in use
for pri~aL~ parties cr funclionb.
(1) ~aruhou~c ~acililie~.
Wilrehou~it! fac.l !.':'Ly flCan!3 c.l
warehouse ~aci lil.}. wilh flore th~l?- ~nolooo square teet t::>tal
f] ecr ~.pa.cc ace t.wcnq. 0:- fewer full tice employees working at
the ~acllity. Thl~ 1ncludc9 any area ~itbln ~uch a racllily
~hat i9 utilized 39 ,office space.
(n) G~~in~ c~ub~.
I'or purposE:!s ct this paragraph,
"'Jal:ln~ clubll n:can!:o any yc:U::'':':I.I; club .3.!~ d~! ine:! .1n sacl:!on
5
~980~ of the Business and Professions'Code 0= ~in~c ~acili~y
as defined in 5ec~ion 326.5 of the Penal Code that restricts
aocess to minors under ~8 years of age.
(n,
Oars ana taverns.
(0) ~l employee breakr=c=s
(PI
~ll indoor workplaces i~=luding those with fi~e or
~ewer employees.
SECTION 4.
Santa Monica Municipal Code Sect10n 4.44.040 lS
amended to read as follows:
4.44.040 Places of employment.
(a) Smoking sha~l be prohibited in all indoor workplaces
in the City of Santa ~on~ca.
( 3 )
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..._..-:J __ ............: _ r'l__.... ""'- __
~........"'^_..... ~.................... L."'......__......................
(b)
Employers shall
l.mplement the provislons
of thls
sectlon in a manner conslstent wlth all appllcable state or
federal statutes, rules or regulations on employer-employee
relations.
7
SECTION 5. Santa Monica Municipal Code Sectlon 4.44.050
15 amended to read as follows:
4.44.050 Post1ng of Slgns.
(a) The person havlng the author1ty to manage and control
any area designated as an nonsmoklng area pursuant to Sectlon
4.44.030 or 4.44.040, shall post or cause to be posted and
promlnently displayed, and shall malntaln "No Smok1ng" slgns
1n consp1cuoUS locat1ons withln sald area. All such slgns
shall clearly and consp1cuously rec1te the phrase "NO SMOKING"
and/or use the lnternatlonal no-smok1ng symbol.
(b) In all places regulated by Sectlon 4.44.030 or
Section 4.44.040 other than restaurants, slgns shall be posted
not less than five (5) feet nor more than e1ght (8) feet above
floor level and shall be of suffic1ent number and locatlon to
cause the message of at least one of the slgns to be clearly
vis1ble, legible, and readable by all patrons.
(c) In connection wlth restaurants ana bars, one of the
followlng shall be requlred ln order to comply Wl th thlS
section:
(1) Free-standing signs or permanent wall slgns of
suffic.l.ent number and location to cause the message of at
least one of the slgns to be clearly visible, leglble, and
readable by all patrons.
(2) Placement of washable placards or other signs on all
~~~J:l.~q tables.
(d) Vlolatlon of, or fallure to comply with, this Sectlon
8
is a m1sdemeanor.
SECTION 6.
Santa Mon1ca Mun1cipal Code Sect10n 4.44.060 1S
amended to read as follows:
4.44.060 Exceptions.
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~:t
non :JlRo}ccr:J.
(b}
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\-/ LJIo..I,..--..-, ......~.."-..&..~.......--.,.+':;J ......."-'-......"-"--- .,..&............&...L.....&. L......__IIo.4...................&.........-'1
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.....1.._
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......._.....__-4~It"" ..................... __..L. ..........L.__.........,....., .T..............._.....
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'I.J..L.'-A....L.......I".4.....__ .
4.44.070 Penalties.
(a) No person shall w1lfully mut1late or destroy any
slgn requ1red by th1S Chapter.
(b) No person shall smoke 1n any area posted as a
nonsmok1ng area.
( c)
No
employer
shall
discharge
or
ln
any
manner
discrim1nate aga1nst any employee who exercises h1S or her
9
rJ.ghts under this Chapter J.f the donlJ.nant lntent of the
employer 1S retaliation agalnst the employee for exerclslng
those rlghts. Violatlon of thls provlslon shall be a
mlsderneanor.
(d) Except as otherWlse provlded for ln thls Chapter,
violation of any provisl.on or fallure to comply Wl th any
requirement of this Chapter is an lnfraction punlshable by a
flne of not more than one hundred dollars ($100.00).
4.44.080 Enforcement.
(a) civil Action. Any aggrleved person may enforce the
provlsions of thls Chapter by means of a C1Vll actlon.
(b) In]Unctlon. Any person who commlts, or proposes to
commit, an act in violat~on of this Chapter may be en]oJ.ned
therefrom by any court of competent jurlsdictlon. An actJ.on
for lnjunctlon under this subdJ.vlsion may be brought by any
aggrJ.eved person, by the CJ.ty, Attorney, or by any person or
entlty WhlCh wlll fairly and adequately represent the
interests of the protected class.
(c) Attorneys' Fees. In any actlon under this section by
an employee alleging retaliation or discrlmlnatlon by an
employer for exercising rlghts under this Chapter, the
prevalling party shall be awarded costs and reasonable
attorneys' fees.
(d) Duty to Inform. owners, operators, managers, or
employees of any place subJect to thJ.s Chapter shall be
10
requlred to orally inform persons violating th1S Chapter of
the provisions hereof. The duty to 1nform such violator shall
ar1se when such owner, operator, manager, or employee of same
becomes aware of such vlolation.
4.44.090 Sale of tobacco by vending or other mechanical device or
out of package.
(a) Purpose. The city Council finds clgarette smoking
and other tobacco use by minors to be a continulng problem
with grave pUblic health consequences. Studles show that the
vast majority of adult smokers began as teenagers, and that
teenagers who begin using tobacco before the age of 15
eventually have much hlgher cancer rates than non-tobacco
using teenagers. In recogn1 tion of the Surgeon General's
conclusion that nicotine is as addictive as cocaine or heroin,
action is needed to curtail the easy access of m1nors to
c1garettes and other tobacco products. Furthermore, by
adoption of Santa Monica Municipal Code Sections 4.44.010
through 4.44.080, the City has already prohibited smok1ng 1n
PUblic places, workplaces, and restaurants. The sale of
tobacco by vendlng machine encourages violations of these
Sections of the Mun1cipal Code since minors have access to
most of these types of prem1ses. The purpose of this Chapter
is to implement a strict and enforceable system to prevent the
illegal sale of cigarettes and other tobacco products to
minors.
11
(b) Vending Machines. On or after May 1, 1991, no person
shall sell or dispense cigarettes or other tobacco products by
vending machine or any other dev1ce that automat~cally sells
or d~spenses tobacco products.
(c) Out of Package Sales Prohibited. It ~s unlawful to
sell cigarettes out of the manufacturer's package with
required health warn1ngs.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES ORDAIN AS FOLLOWS:
SECTION 7.
The Mayor shall s1gn and the City Clerk shall
attest to the passage of this Ord1nance. The City Clerk shall cause
the same to be published once ~n the official newspaper w1th1n 15
days after its adopt1on.
Th1S Ord1nance shall become effect~ve
after 30 days from its adopt1on.
APPROVED AS TO FORM:
~(J...L~
MARSHA JO~~UTRIE
City Attorney
12
Display 1993-1994 Bill Text - INFORMATION
BILL NmmER: AB 13
BILL TEXT
CHAPTER
FILED WITH SECRETARY OF STATE
APPROVED BY GOVERNOR
PASSED THE ASSEMBLY
PASSED THE SENATE
AMENDED IN SENATE
AMENDED IN SENATE
AMENDED IN SENATE
AMENDED IN SENATE
AMENDED IN SENATE
AMENDED IN SENATE
AMENDED IN SENATE
AMENDED IN SENATE
AMENDED IN ASSEMBLY
AMENDED IN ASSEMBLY
AMENDED IN ASSEMBLY
PAGE 1
310
JULY 21, 1994
JULY 21, 1994
JULY 7, 1994
JUNE 30, 1994
JUNE 16, 1994
MAY 24, 1994
APRIL 6, 1994
MARCH 7, 1994
AUGUST 30, 1993
AUGUST 19, 1993
AUGUST 17, 1993
JULY 1, 1993
MAY 24, 1993
APRIL 12, 1993
FEBRUARY 22, 1993
INTRODUCED BY Assembly Member Terry Friedman
(Principal coauthor: Assembly Member Margolin)
(Coauthors: Assembly Members Archie-Hudson, Bates, caldera,
Eastin, Gotch, Isenberg, Klehs, and Solis)
(Coauthors: Senators Petris, Torres, and Watson)
DECEMBER 7, 1992
An act to add Section 6404.5 to the Labor Code, relating to occupational
safety and health.
LEGISLATIVE COUNSEL'S DIGEST
AD 13, T. Friedman. Occupational safety and health: tobacco products.
~h~ existing California Occupational Safety and Health Act of 1973,
admin~stered and enforced by the Division of occupational safety and Health
within the Department of Industrial Relations, prohibits any employer from
occupying or maintaining any place of employment that is not safe and
healthful. It also provides, under specified circumstances, for misdemeanor
penalties with respect to violations of the act, except where another penalty
is specifically provided.
PAGE 2
Display 1993-1994 Bill Text - INFORMATION
BILL NUMBER: AB 13
I
BILL TEXT
This bill would additionally prohibit any employer from knowingly or
intentionally permitting, or any person from engaging in, the smoking of
tobacco products in an enclosed space at specified places of employment. The
bill would specify that, for purposes of these provisions, "place of
employmentll does not include certain portions of a hotel, motel, or other
lodging establishments, meeting or banquet rooms subject to certain
exceptions, retail or wholesale tobacco shops, private smoker's lounges, cabs
of motortrucks or truck tractors as specified, bars and taverns and gaming
clubs subject to certain prescribed conditions, warehouse facilities,
theatrical production sites, and medical research or treatment sites, employee
breakrooms under prescribed conditions, patient smoking areas in long-term
health care facilities, as defined, and specified smoking areas designated by
employers with fewer than 5 employees. It would also specify that, for
purposes of these provisions, an employer who permits any nonemployee access
to his or her place of employment on a regular basis has not acted knowingly
or intentionally if he or she has taken certain reasonable steps to prevent
smoking by a nonemployee.
This bill would also specify that the smoking prohibition set forth in
these provisions shall constitute a uniform statewide standard for regulating
the smoking of tobacco products in enclosed places of employment, and shall
supersede and render unnecessary specified local ordinances regulating the
smoking of tobacco products in enclosed places of employment.
This bill would additionally provide that a violation of the smoking
prohibition set forth in these provisions is an infraction punishable by
specified fines. It would further provide that the smoking prohibition shall
be enforced by local law enforcement agencies, as specified, but would specify
that the division shall not be required to respond to any complaint regarding
a violation of the smoking prohibition, unless the employer has been found
guilty of a 3rd violation of the smoking prohibition within the previous year.
By establishing a new prohibition the violation of which is, under specified
circumstances, an infraction, this bill would create a new crime and would
thereby establish a state-mandated local program.
The California Constitution requires the state to reimburse local agencies
and school districts for certain costs mandated by the state. statutory
provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a
specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6404.5 is added to the Labor Code, to read:
6404.5. (a) The Legislature finds and declares that regulation of smoking
PAGE 3
~
Display 1993-1994 Bill Text - INFORMATION
B~LL NUMBER: AB 13
BILL TEXT
in the workplace is a matter of statewide interest and concern. It is the
intent of the Legislature in enacting this section to prohibit the smoking of
tobacco products in all (100 percent of) enclosed places of employment in this
stater as covered by this section, thereby eliminating the need of local
governments to enact workplace smoking restrictions within their respective
jurisdictions. It is further the intent of the Legislature to create a
uniform statewide standard to restrict and prohibit the smoking of tobacco
products in enclosed places of employment, as specified in this section, in
order to reduce employee exposure to environmental tobacco smoke to a level
that will prevent anything other than insignificantly harmful effects to
exposed employees, and also to eliminate the confusion and hardship that can
result from enactment or enforcement of disparate local workplace smoking
restrictions. Notwithstanding any other provision of this section, it is the
intent of the Legislature that any area not defined as a "place of employment"
pursuant to subdivision (d) or in which the smoking of tobacco products is not
regulated pursuant to subdivision (e) shall be subject to local regulation of
smoking Qf tobacco products.
(b) No employer shall knowingly or intentionally permit, and no person
shall engage in, the smoking of tobacco products in an enclosed space at a
place of employment.
(c) For purposes of this section, an employer who permits any nonemp1oyee
access to his or her place of employment on a regular basis has not acted
knowingly or intentionally if he or she has taken the following reasonable
steps to prevent smoking by a nonemployee:
(1) Posted clear and prominent signs, as follows:
(A) Where smoking is prohibited throughout the building or structurer a
sign stating "No smokingll shall be posted at each entrance to the building or
structure.
(B) Where smoking ~s permitted in designated areas of the building or
structure, a sign stating "Smoking is prohibited except in designated areas"
shall be posted at each entrance to the building or structure.
(2) Has requested, when appropriate, that a nonemployee who is smoking
refrain from smoking in the enclosed workplace.
For purposes of this subdivisionr "reasonable stepsll does not include (A)
the physical ejectment of a nonernployee from the place of employment or (B)
any requirement for making a request to a nonemployee to refrain from smoking,
under circumstances involving a risk of physical harm to the employer or any
employee.
(d) For purposes of this section, IIplace of employment" does not include
any>>f the following:
Yil) Sixty-five percent of the guest room accommodations in a hotel, motel,
or similar transient lodging establishment.
(2) Areas of the lobby in a hotel, motel, or other similar transient
lodging establishment designated for smoking by the establishment. Such an
establishment may permit smoking in a designated lobby area that does not
exceed 25 percent of the total floor area of the lobby or, if the total area
of the lobby is 2,000 square feet or less, that does not exceed 50 percent of
the total floor area of the lobby. For purposes of this paragraph, IIlobbyll
means the common public area of such an establishment in which registration
and other similar or related transactions, or both, are conducted and in which
r- Display 1993-1994
BILL NUMBER: AB 13
PAGE
4 .
Bill Text - INFORMATION
BILL TEXT
the establishment's guests and members of the public typically congregate.
(3) Meeting and banquet rooms in a hotel, motel, other transient lodging
establishment similar to a hotel or motel, restaurant, or public convention
center, except while food or beverage functions are taking place, including
setup, service, and cleanup activities, or when the room is being used for
exhibit purposes. At times when smoking is not permitted in such a meeting or
banquet room pursuant to this paragraph, the establishment may permit smoking
in corridors and prefunction areas adjacent to and serving the meeting or
banquet room if no employee is stationed in that corridor or area on other
than a passing basis.
J~(4) Retail or wholesale tobacco shops and private smokers' lounges. For
purposes of this paragraph:
(A) "Private smokers' lounge" means any enclosed area in or attached to a
retail or wholesale tobacco shop that is dedicated to the use of tobacco
products, including, but not limited to, cigars and pipes.
(B) "Retail or wholesale tobacco shop" means any business establishment the
main purpose of which is the sale of tobacco products, including, but not
limi~d to, cigars, pipe tobacco, and smoking accessories.
t l~~5) Cabs of motortrucks, as defined in section 410 of the Vehicle Code, or
trUck tractors, as defined in Section 655 of the Vehicle Code, if no
nonsmoking employees are present.
(6) Warehouse facilities. For purposes of this paragraph, "warehouse
facility" means a warehouse facility with more than 100,000 square feet of
total floor space, and 20 or fewer full-time employees working at the
zacility, but does not include any area within such a facility that is
utilized as office space.
(7) Gaming clubs, in which smoking is permitted by subdivision (f). For
purposes of this paragraph, "gaming club" means any gaming club as defined in
section 19802 of the Business and Professions Code or bingo facility as
defined in section 326.5 of the Penal Code that restricts access to minors
under 18 years of age.
(8) Bars and taverns, in which smoking is permitted by subdivision (f).
For purposes of this paragraph, "bar" or "tavern" means a facility primarily
devoted to the serving of alcoholic beverages for consumption by guests on the
premises, in which the serving of food is incidental. "Bar or tavern"
includes those facilities located within a hotel, motel, or other similar
transient occupancy establishment. However, when located within a building in
conjunction with another use, including a restaurant, "bar" or "tavern"
includes only those areas used primarily for the sale and service of alcoholic
beverages. "Bar" or "tavern" does not include the dining areas of a
restaurant, regardless of whether alcoholic beverages are served therein.
. L(9) Theatrical production sites, if smoking is an integral part of the
story in the theatrical production.
I ~(10) Medical research or treatment sites, if smoking is integral to the
research and treatment being conducted.
, ;(11) Private residences, except for private residences licensed as family
day care homes, during the hours of operation as family day care homes and in
thos~ areas. where children are present.
~ a12).Pat~ent smoking areas in long-term health care facilities, as defined
~ BeetloD 1418 of the Health and Safety Code.
PAGE 5
~ Display 1993-1994 Bill Text - INFORMATION
BILL NU}ffiER: AB 13
BILL TEXT
(13) Breakrooms designated by employers for smoking, prov1ded that all of
the following conditions are met:
(A) Air from the smoking room shall be exhausted directly to the outside by
an exhaust fan. Air from the smoking room shall not be recirculated to other
parts of the building.
(B) The employer shali comply with any ventilation standard or other
standard utilizing appropriate technology, including, but not limited to,
mechanical, electronic, and biotechnical systems, adopted by the Occupational
Safety and Health Standards Board or the federal Environmental Protection
Agency. If both adopt inconsistent standards, the ventilation standards of
the Occupational Safety and Health Standards Board shall be no. less stringent
than the standards adopted by the federal Environmental protection Agency.
(C) The smoking room shall be located in a nonwork area where no one, as
part of his or her work responsibilities, is required to enter. For purposes
of this paragraph, "work responsibilities" does not include any custodial or
maintenance work carried out in the breakroom when it is unoccupied.
(D) There are sufficient nonsmoking breakrooms to accommodate nonsmokers.
(14) Employers with a total of five or fewer employees, either full-time or
part-t~me, may permit smoking where all of the following conditions are met:
(A) The smoking area is not accessible to minors.
(B) All employees who enter the smoking area consent to permit smoking. No
one, as part of his or her work responsibilities, shall be required to work in
an area where smoking is permitted. An employer who is determined by the
division to have used coercion to obtain consent or who has required an
employee to work in the smoking area shall be subject to the penalty
provisions of Section 6427.
(C) Air from the smoking area shall be exhausted directly to the outside by
an exhaust fan. Air from the smoking area shall not be recirculated to other
parts of the building.
(D) The employer shall comply with any ventilation standard or other
standard utilizing appropriate technology, including, but not limited to,
mechanical, electronic, and biotechnical systems, adopted by the occupational
safety and Health Standards Board or the federal Environmental Protection
Agency. If both adopt inconsistent standards, the ventilation standards of
the Occupational Safety and Health Standards Board shall be no less stringent
than the standards adopted by the federal Environmental Protection Agency.
This paragraph shall not be construed to (i) supersede or render
inapplicable any condition or limitation on smoking areas made applicable to
specific types of business establishments by any other paragraph of this
subdivision or (ii) apply in lieu of any otherwise applicable paragraph of
this subdivision that has become inoperative.
(e) Paragraphs (13) and (14) of subdivision (d) shall not be construed to
require employers to provide reasonable accommodation to smokers, or to
provide breakrooms for smokers or nonsmokers.
(f) (I) Except as otherwise provided in this subdivision, smoking may be
permitted in gaming clubs, as defined in paragraph (7) of subdivision (d), and
in bars and taverns, as defined in paragraph (8) of subdivision (d), until the
earlier of the following:
(A) January 11 1997.
(B) The date of adoption of a regulation (i) by the occupational Safety and
PAGE 6
Display 1993-1994 Bill Text - INFORMATION
BILL NUMBER: AB 13
BILL TEXT
Health Standards Board reducing the permissible employee exposure level to
env~ronmental tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees or (ii) by the federal
Environmental Protection Agency establishing a standard for reduction of
permissible exposure to environmental tobacco smoke to an exposure level that
will prevent anything other than insignificantly harmful effects to exposed
persons.
(2) If a regulation specified in subparagraph (B) of paragraph (1) is
adopted on or before January 1, 1997, smoking may thereafter be permitted in
ga~ng clubs and in bars and taverns, subject to full compliance with, or
conformity to, the standard in the regulation within two years following the
date of adoption of the regulation. An employer failing to achieve compliance
with, or conformity to, such a regulation within this two-year period shall
prohibit smoking in the gaming club, bar, or tavern until compliance or
conformity is achieved. If the occupational safety and Health Standards Board
and the federal Environmental Protection Agency both adopt regulations
specified in subparagraph (B) of paragraph (1) that are inconsistent, the
regulations of the Occupational Safety Standards Board shall be no less
stringent than the regulations of the federal Environmental Protection Agency.
(3) If a regulation specified in subparagraph (B) of paragraph (1) is not
adopted on or before January 1, 1997, the exemptions specified in paragraphs
(7) and (8) of subdivision (d) shall be inoperative on and after January 1,
1997, until such a regulation is adopted. Upon adoption of such a regulation
on or after January 1, 1997, smoking may thereafter be permitted in gaming
clubs and in bars and taverns, subject to full compliance with, or conformity
to, the standard in the regulation within two years fOllowing the date of
adoption of the regulation. An employer failing to achieve compliance with,
or conformity to, such a regulation within this two-year period shall prohibit
smoking in the gaming club, bar, or tavern until compliance or conformity is
achieved. If the Occupational Safety and Health standards Board and the
federal Environmental Protection Agency both adopt regulations specified in
subparagraph (B) of paragraph (1) that are inconsistent, the regulations of
the Occupational safety standards Board shall be no less stringent than the
regulations of the federal Environmental Protection Agency.
(g) The smoking prohibition set forth in this section shall constitute a
uniform statewide standard for regulating the smoking of tobacco products in
enclosed places of employment, and shall supersede and render unnecessary the
local enactment or enforcement of local ordinances regulating the smoking of
tobacco products in enclosed places of employment. Insofar as the smoking
prohibition set forth in this section is applicable to all (100 percent of)
places of employment within this state and, therefore, provides the maximum
degree of coverage, the practical effect of this section is to eliminate the
need of local governments to enact enclosed workplace smoking restrictions
within their respective jurisdictions.
(~) N?thing in this section shall prohibit an employer from prohibiting
smok~ng ~n an enclosed place of employment for any reason.
(~) The enactment of local regUlation of smoking of tobacco products in
enclosed places of employment by local governments shall be suspended only for
as long aSI and to the extent that, the (100 percent) smoking prohibition
PAGE 7
. - Display 1993-1994 Bill Text - INFORMATION
-BiLL NUMBER: F~ 13
BILL TEXT
provided for in this section remains in effect. In the event this section is
repealed or modified by subsequent legislative or judicial action so that the
(100 percent) smoking prohibition is no longer applicable to all enclosed
places of employment in California, local governments shall have the full
right and authority to enforce previously enacted, and to,enact and enforce
new, restrictions on the smoking of tobacco products in enclosed places of
employment within their jurisdictions, including a complete prohibition of
smoking. Notwithstanding any other provision of this section, any area not
defined as a "place of employment" or in which the smoking is not regulated
pursuant to subdivision (d) or (e), shall be subject to local regulation of
smoking of tobacco products.
(j) Any violation of the prohibition set forth in subdivision (b) is an
infraction subject to subdivision (d) of Section 17 of the Penal Code and,
notw~thstanding Section 19.8 of the Penal Code, is punishable by a fine not to
exceed one hundred dollars ($100) for a first violation, two hundred dollars
($200) for a second violation within one year, and five hundred dollars ($500)
for a third and for each subsequent violation within one year. This
subdivision shall be enforced by local law enforcement agencies including, but
not limited to, local health departments, as determined by the local governing
body.
(k) Notwithstanding Section 6309, the division shall not be required to
respond to any complaint regarding the smoking of tobacco products in an
enclosed space at a place of employment, unless the employer has been found
guilty pursuant to subdivision (j) of a third violation of subdivision (b)
within the previous year.
(I) If any provision of this act or the application thereof to any person
or circumstances is held invalid, that invalidity shall not affect other
provisions or applications of the act that can be given effect without the
invalid provision of application, and to this end the provisions of this act
are severable.
SEC. 2. No reimbursement is required by this act pursuant to Section 6 of
Article XIIIB of the California constitution because the only costs which may
be incurred by a local agency or school district will be incurred because this
act creates a new crime or infraction, changes the definition of a crime or
infraction, changes the penalty for a crime or infraction, or eliminates a
crime or infraction. Notwithstanding section 17580 of the Government Code,
unless otherwise specified in this act, the provisions of this act shall
become operative on the same date that the act takes effect pursuant to the
California Constitution.
"
"