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SR-8-A (135) CA:f:\atty\muni\strpts\kas\smoke.2 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 1 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 2 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 3 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. 4 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 5