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city Council Meeting 11-22-94
$U~pL.ehWT ro8 A
NOV 2 2 199't
Santa Monica, California
TO: Mayor and City council
FROM: City Attorney
SUBJECT: Proposed Ordinance Prohibiting Smoking In Indoor
Workplaces
INTRODUCTION
At its meeting of November 15, 1994, the city Council heard public
testimony on proposed amendments to the city's smoking ordinance
and asked staff for clarification of certain points relating to the
relationship between the provisions of the proposed ordinance and
AB13 (Uthe Friedman Bil1l').
This supplemental staff report is
intended to provide that clarification.
BACKGROUND
The Friedman Bill will go into effect on January 1, 1995. It is an
amendment to the Occupational Safety and Health Act which restricts
smoking in places of employment.
It is intended to protect
employees from the hazards of environmental tobacco smoke.
Presumably as a result of compromises made in the Legislature to
obtain passage, the Friedman Bill's prcvis1cns are somewhat self-
contradictory. For example, Section l(a) states, in part, that it
is the intent of the Legislature Uto prohibit the smoking of
tobacco products in all (100 percent of) enclosed places of
NOY 2 2 1994
SOPPl..fMeNi TD 8 A
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employment ... thereby eliminating the need of local government to
enact workplace smoking restrictions II However, section l(d)
deflnes "place of employment II to partially exclude various
categories of places where people actually work. Moreover,
although Section l(a) states that one of the Legislature's
lntentlons was to eliminate the need for local regulation, the Bill
also expressly permits local regulation of those workplaces not
covered by the Friedman Bill: "it 1S the intent of the Legislature
that any area not defined as a "place of employment" pursuant to
[this measure] shall be subject to local regulation ...."
From a municipal and legal perspect1ve these apparent
inconsistencles are far less important than the fact that the
Leglslature clearly specified that local restrictions may be
adopted. Thus! the City is free to adopt supplemental measures
appllcable to those places WhlCh the Friedman Bill excludes from
the definition of a lip lace of employment.1I
One question which arose on November 15th was the meaning of
Sectlon l{f} of the Friedman Bill relatlng to the exemptlons from
the definition of places of employment for bars! taverns and gaming
clubs. Under the terms of the Friedman Blll, that exemption would
end as of January 1, 1997, if no regulatory standards for
ventilation were adopted before that date by the EPA or OSHA. If
such regulations were adopted durlng that period, there would be a
two year period for bars, taverns and gaming clubs to comply with
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them. For example, if the EPA adopts vent~lation standards for
bars, taverns and gaming clubs in October of 1996, compliance with
those regulations would be required as of October, 1998.
Therefore, it would be nearly another four years until smoking is
regulated in those areas under the state law.
Another question involved the relationship between the substance of
the Friedman Bill and our proposed ordinance. Historically, the
Santa Monica smoking ordinance has been primarily directed at
regulat~ng bars, restaurants and areas of public accommodations in
order to protect the public. Thus, our ordinance has a broader
objective than the Friedman Bill, which is intended to protect
employees. consistent w~th the purpose of our ordinance, and in
view of the fact that the protections established by the Friedman
Bill are lim~ted, the proposed ord~nance addresses seven of the
klnds of locations which the bill part~ally excludes from the
deflnltion of place of employment (thereby allowing smoklng in the
locations). Those locations are:
(1) Lobby areas in hotels, motels or other similar transient
lodging establishments. Whether the prohibition in the
Friedman Bl11 applies to these areas depends upon the
size of the lobby area.
(2) Meetinq and banquet rooms in hotels, motels or other
transient lodqinq establishments similar to hotel, motel,
restaurants or a public convention center. Whether such
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areas are covered by the Friedman Bill depends upon
whether workers are present in the areas.
(3) Warehouse facilities. Whether the state prohibition
applies depends upon the size of the warehouse or the
number of employees.
(4) Gaming clubs. The staff proposal is for a 100% smoking
ban that would be immediately effective and would not be
dependent upon the enactment of regulations by OSHA or
the EPA.
(5) J2.ars and taverns. The staff proposal is for a 100%
smoking ban that would be immediately effective and would
not be dependent upon the enactment of regulations by
OSHA or the EPA.
(6) ~mployee breakrooms. The proposal is for a 100% smoklng
ban not limited by the installation of any ventilation
and exhaust equipment as described in the state law.
(7) Places of employers wlth five or fewer employees. Again,
the proposal is a total ban which would not allow for
permitting smoklng if permission is obtained from all
employees or if certain ventilation and exhaust equipment
is installed.
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The city council's original directive to staff was to propose
amendments for the Councll's consideratlon which would prohib1t
smoking in indoor workplaces.
The Friedman Bill only partially
accomplishes that purpose. The amendments proposed in response to
the Council's directive fill in the major gaps left by the bill.
RECOMMENDATION
It 1S respectfully recommended that the proposed ordinance be
approved on first reading if the Council determines that smoking
should be prohibited ln all indoor workplaces.
PREPARED BY:
Marsha Jones Moutrie, city Attorney
Kimery A. Shelton, Deputy city Attorney
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