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SR-8-A (136) CA:f:\atty\muni\strpts\kas\smoke.2 Clty council Meeting 11-22-94 -SUfPI-el1E#JT To8 A NOV 2 2 1994 Santa Monica, Callforn~a 4 ~'-# TO: Mayor and city council FROM: city Attorney SUBJECT: proposed Ordinance Prohibiting smoking In Indoor Workplaces INTRODUCTION At ~ts meeting of November 15, 1994, the city council heard public testlmony on proposed amendments to the city's smoking ordinance and asked staff for clarification of certain points relating to the relatlonship between the provisions of the proposed ordinance and AB13 ("the Friedman Bl1111). ThlS supplemental staff report is lntended to provlde 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 campromlses made in the Legislature to obta~n passage, the Friedman Bill's provisions are somewhat self- contradictory. For example, Section l(a) states, in part, that it 15 the intent of the Legislature "to prohibit the smoking of tobacco products in all (100 percent of) enclosed places of NOV 2 2 1994 SUPPtEMe.1'ii TO 8 A 1 .... ~ . employment ... thereby eliminating the need of local government to enact workplace smoklng restrictions 11 However, Section l(d) deflnes "place of employment II to partially exclude var10US categories of places where people actually work. Moreover, although Sectlon l(a) states that one of the Legislature's ~ntentions was to eliminate the need for local regulation, the Bill also expressly permits local regulation of those workplaces not covered by the Friedman Bill: t1~t is the intent of the Leg~slature that any area not defined as a "place of employment" pursuant to [thlS measure] shall be sUbJect to local regulation ...." From a municipal and legal perspective these apparent inconsistencies 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 which the Frledman Bill excludes from the deflnitlon of a "place of employment." One question which arose on November 15th was the rneanlng of Sectlon l(f) of the Friedman Bill relating to the exemptions from the definition of places of employment for bars, taverns and gaming clubs. Under the terms of the Friedman Bill, that exemption would end as of January 1, 1997, if no regulatory standards for vent~lation were adopted before that date by the EPA or OSHA. If such regulations were adopted during 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 ventilation 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 1S regulated in those areas under the state law. Another question involved the relationship between the substance of the Frledman Bill and our proposed ordlnance. Historically, the Santa Monica smoklng ordinance has been primarily dlrected at regulating bars, restaurants and areas of public accommodations ln order to protect the public. Thus, our ordinance has a broader obJectlve than the Friedman B1Il, which is intended to protect employees. Consistent with the purpose of our ordinance, and in Vlew of the fact that the protect1ons established by the Friedman Blll are limited, the proposed ordinance addresses seven of the klnds of locatlons which the bill partially excludes from the deflnltion of place of employment (thereby allowing smoking in the locatlons). Those locations are: (1) Lobby areas in hotels, motels or other slmilar transient lodqlng establishments. Whether the prohibltion ln the Friedman Bill applies to these areas depends upon the s~ze of the lobby area. (2) Meeting and banquet rooms in hotels, motels or other transient lodqinq establishments similar to hotel r 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% smok1ng ban that would be immediately effective and would not be dependent upon the enactment of regulations by OSHA or the EPA. (5) Bars and taverns. The staff proposal 15 for a 100% smok1ng ban that would be immediately effective and would not be dependent upon the enactment of regulations by OSHA or the EPA. (6) Employee breakrooms. The proposal is for a 100% smok1ng ban not limited by the installation of any ventilation and exhaust equipment as descr1bed in the state law. (7) Places of employers with five or fewer employees. Aga1n, the proposal is a total ban Wh1Ch would not allow for permitting smoking if permission is obtalned from all employees or if certain ventilatlon and exhaust equipment is installed. 4 , The Clty Council's original dlrectlve to staff was to propose amendments for the Council's conslderation WhlCh would prohlblt smoklng ln 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 blll. RECOMMENDATION It is respectfully recommended that the proposed ordinance be approved on first reading if the Council determines that smoklng should be prohibited in all indoor workplaces. PREPARED BY: Marsha Jones Moutrle, city Attorney Kimery A. Shelton, Deputy City Attorney 5