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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