SR-8-A (136)
CA:f:\atty\muni\strpts\kas\smoke.2
Clty council Meeting 11-22-94
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NOV 2 2 1994
Santa Monica, Callforn~a
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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
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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
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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
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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% 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.
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,
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
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