SR-8-A (137)
CA:f:\atty\muni\strpts\kas\smoke.2
C~ty Council Meeting 11-22-94
$U~Pl..E.hWT TO 8 A
NOV 2 2 1994
Santa Monica, Callforn~a
f
t
TO: Mayor and city council
FROM: city Attorney
SUBJECT: Proposed Ordinance Prohiblting Smoking In Indoor
workplaces
INTRODUCTION
At its meeting of November 15, 1994, the C~ty Council heard publ~c
test~mony on proposed amendments to the city's smoklng ordinance
and asked staff for clariflcation of certaln pOlnts relatlng to the
relat~onshlp between the provisions of the proposed ordinance and
AB13 ("the Friedman Billll).
ThlS supplemental staff report is
lntended to provide that clarification.
BACKGROUND
The Frledman Bill wlll go lnto effect on January 1, 1995. It is an
amendment to the Occupational Safety and Health Act which restricts
smoklng in places of employment.
It is intended to protect
employees from the hazards of environmental tobacco smoke.
Presumably as a result of comprornlses made in the Leg~slature to
obtaln passage, the Frledman Blll's provislons are somewhat self-
contradictory. For example, Section l(a) states, in part, that it
is the intent of the Legislature "to prohibit the smoking of
tobacco products in all (100 percent of) enclosed places of
NOV 2 2 199't
SUPPLE-He-rn TO 8 A
1
)
employment ... thereby eliminating the need of local government to
enact workplace smoking restrictions "However, Sect10n l(d)
deflnes "place of employment II to partially exclude var10US
categorles of places where people actually work. Moreover,
although Sectlon l(a) states that one of the Leglslature's
lntentions 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 is the intent of the Leglslature
that any area not deflned as a "place of employmentll pursuant to
[th1s measure] shall be subject to local regulat10n ...."
From a municlpal and legal perspective these apparent
inconsistencies are far less important than the fact that the
Legislature clearly specified that local restrictions may be
adopted. Thus, the city 1S free to adopt supplemental measures
appllcable to those places Wh1Ch the Friedman Bill excludes from
the definltlon of a IIplace of employment."
One questlon which arose on November 15th was the meaning of
Section l(f) of the Friedman Bill relat1ng to the exemptions from
the definition of places of employment for bars, taverns and gamlng
clubs. Under the terms of the Frledman Bill, that exempt10n would
end as of January 1, 1997, If no regulatory standards for
ventllation were adopted before that date by the EPA or OSHA. If
such regulations were adopted during that period, there would be a
two year per~od for bars, taverns and gaming clubs to comply with
2
I
them. For example, if the EPA adopts ventilation standards for
bars, taverns and gaming clubs in October of 1996, compliance wlth
those regulatlons would be required as of October, 1998.
Therefore, it would be nearly another four years until smoklng 1S
regulated 1n those areas under the state law.
Another quest10n involved the relationshlp between the substance of
the Fr1edman Bill and our proposed ordinance. Hlstorlcally, the
Santa Monica smoking ordinance has been pr1marily directed at
regulatlng bars, restaurants and areas of public accommodations In
order to protect the publlC. Thus, our ordinance has a broader
obJectlve than the Friedman Bill, WhlCh is intended to protect
employees. Consistent with the purpose of our ord1nance, and in
Vlew of the fact that the protections established by the Friedman
8111 are Ilm1ted, the proposed ordinance addresses seven of the
klnds of locations WhlCh the blll part1ally excludes from the
deflnltion of place of employment (thereby allowing smoklng in the
1ocatlons). Those locations are:
(1) Lobby areas in hotels, motels or other sim1lar trans lent
lodqlng establ1shments. Whether the prohib1tion 1n the
Friedman Bill applies to these areas depends upon the
size of the lobby area.
(2) Meetinq and banquet rooms 1n hotels, motels or other
transient lodginq establishments similar to hotel r motel,
restaurants or a pUblic convention center. Whether such
3
\
areas are covered by the Friedman B1II depends upon
whether workers are present in the areas.
(3) Warehouse facilities. Whether the state prohib1. tion
applies depends upon the size of the warehouse or the
number of employees.
(4) Gaminq clubs. The staff proposal is for a 1QO% smoklng
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 l.S 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) Employee breakrooms. The proposal is for a 100% smokl.ng
ban not limited by the installation of any ventilatl.on
and exhaust equipment as described in the state law.
(7) Places of employers with f 1. ve or fewer employees. Agal.n,
the proposal is a total ban whl.ch would not allow for
permitting smoking l.f perm1.ssion 1.S obtalned from all
employees or if certaln ventilation and exhaust equlpment
is installed.
4
1
The Clty Council's original dlrective to staff was to propose
amendments for the Councll's consideratlon whlch would prohlblt
smoklng in indoor workplaces.
The Friedman Bill only partlally
accompl1shes that purpose. The amendments proposed in response to
the Council's directive f~ll in the major gaps left by the bill.
RECOMMENDATION
It 1.S respectfully recommended that the proposed ordlnance be
approved on first reading if the Council determines that smoking
should be prohibited in all indoor workplaces.
PREPARED BY:
Marsha Jones Moutrie, CJ..ty Attorney
Kimery A. Shelton, Deputy CJ..ty Attorney
5