BILL NUMBER: AB 217 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 25, 2011
AMENDED IN ASSEMBLY MARCH 8, 2011
INTRODUCED BY Assembly Member Carter
JANUARY 31, 2011
An act to amend Section 6404.5 of the Labor Code, relating to
occupational safety and health.
LEGISLATIVE COUNSEL'S DIGEST
AB 217, as amended, Carter. Workplace smoking prohibition:
long-term health care facilities.
Existing law prohibits an employer from knowingly or intentionally
permitting, and a person from engaging in, the smoking of tobacco
products in an enclosed space at a place of employment. Existing law
provides that "place of employment" for purposes of that prohibition
does not include, among other places, patient smoking areas in
long-term health care facilities, as defined. Existing law provides
that any violation of that prohibition is an infraction, punishable
by a fine not to exceed $100 for a first violation, $200 for a 2nd
violation within one year, and $500 for a 3rd and for each subsequent
violation within one year.
This bill would delete that exception for patient smoking
areas in long-term health care facilities, thereby making those
areas subject to the smoking prohibition described above
provide that a patient smoking area, as defined, is not a place
of employment for purposes of the smoking prohibition described above
only if the patient smoking area is not located in a patient's room,
is located outdoors in a courtyard, patio, or other outdoor space
that can be monitored by facility staff, and is located in an area
that reasonably prevents smoke from entering the facility or patient
rooms.
By limiting the application of the exception for patient
smoking areas, the bill would make some of those areas subject to the
smoking prohibition, thereby creating an additional crime punishable
as an infraction and imposing a state-mandated local program .
By creating an additional crime punishable as an infraction, this
bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6404.5 of the Labor Code is amended to read:
6404.5. (a) The Legislature finds and declares that regulation of
smoking in the workplace is a matter of statewide interest and
concern. It is the intent of the Legislature in enacting this section
to prohibit the smoking of tobacco products in all (100 percent of)
enclosed places of employment in this state, as covered by this
section, thereby eliminating the need of local governments to enact
workplace smoking restrictions within their respective jurisdictions.
It is further the intent of the Legislature to create a uniform
statewide standard to restrict and prohibit the smoking of tobacco
products in enclosed places of employment, as specified in this
section, in order to reduce employee exposure to environmental
tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees, and also to
eliminate the confusion and hardship that can result from enactment
or enforcement of disparate local workplace smoking restrictions.
Notwithstanding any other provision of this section, it is the intent
of the Legislature that any area not defined as a "place of
employment" pursuant to subdivision (d) or in which the smoking of
tobacco products is not regulated pursuant to subdivision (e) shall
be subject to local regulation of smoking of tobacco products.
(b) No employer shall knowingly or intentionally permit, and no
person shall engage in, the smoking of tobacco products in an
enclosed space at a place of employment. "Enclosed space" includes
lobbies, lounges, waiting areas, elevators, stairwells, and restrooms
that are a structural part of the building and not specifically
defined in subdivision (d).
(c) For purposes of this section, an employer who permits any
nonemployee access to his or her place of employment on a regular
basis has not acted knowingly or intentionally in violation of this
section if he or she has taken the following reasonable steps to
prevent smoking by a nonemployee:
(1) Posted clear and prominent signs, as follows:
(A) Where smoking is prohibited throughout the building or
structure, a sign stating "No smoking" shall be posted at each
entrance to the building or structure.
(B) Where smoking is permitted in designated areas of the building
or structure, a sign stating "Smoking is prohibited except in
designated areas" shall be posted at each entrance to the building or
structure.
(2) Has requested, when appropriate, that a nonemployee who is
smoking refrain from smoking in the enclosed workplace.
For purposes of this subdivision, "reasonable steps" does not
include (A) the physical ejection of a nonemployee from the place of
employment or (B) any requirement for making a request to a
nonemployee to refrain from smoking, under circumstances involving a
risk of physical harm to the employer or any employee.
(d) For purposes of this section, "place of employment" does not
include any of the following:
(1) Sixty-five percent of the guestroom accommodations in a hotel,
motel, or similar transient lodging establishment.
(2) Areas of the lobby in a hotel, motel, or other similar
transient lodging establishment designated for smoking by the
establishment. An establishment may permit smoking in a designated
lobby area that does not exceed 25 percent of the total floor area of
the lobby or, if the total area of the lobby is 2,000 square feet or
less, that does not exceed 50 percent of the total floor area of the
lobby. For purposes of this paragraph, "lobby" means the common
public area of an establishment in which registration and other
similar or related transactions, or both, are conducted and in which
the establishment's guests and members of the public typically
congregate.
(3) Meeting and banquet rooms in a hotel, motel, other transient
lodging establishment similar to a hotel or motel, restaurant, or
public convention center, except while food or beverage functions are
taking place, including setup, service, and cleanup activities, or
when the room is being used for exhibit purposes. At times when
smoking is not permitted in a meeting or banquet room pursuant to
this paragraph, the establishment may permit smoking in corridors and
prefunction areas adjacent to and serving the meeting or banquet
room if no employee is stationed in that corridor or area on other
than a passing basis.
(4) Retail or wholesale tobacco shops and private smokers'
lounges. For purposes of this paragraph:
(A) "Private smokers' lounge" means any enclosed area in or
attached to a retail or wholesale tobacco shop that is dedicated to
the use of tobacco products, including, but not limited to, cigars
and pipes.
(B) "Retail or wholesale tobacco shop" means any business
establishment the main purpose of which is the sale of tobacco
products, including, but not limited to, cigars, pipe tobacco, and
smoking accessories.
(5) Cabs of motortrucks, as defined in Section 410 of the Vehicle
Code, or truck tractors, as defined in Section 655 of the Vehicle
Code, if no nonsmoking employees are present.
(6) Warehouse facilities. For purposes of this paragraph,
"warehouse facility" means a warehouse facility with more than
100,000 square feet of total floorspace, and 20 or fewer full-time
employees working at the facility, but does not include any area
within a facility that is utilized as office space.
(7) Gaming clubs, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "gaming club" means any gaming
club, as defined in Section 19802 of the Business and Professions
Code, or bingo facility, as defined in Section 326.5 of the Penal
Code, that restricts access to minors under 18 years of age.
(8) Bars and taverns, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "bar" or "tavern" means a
facility primarily devoted to the serving of alcoholic beverages for
consumption by guests on the premises, in which the serving of food
is incidental. "Bar or tavern" includes those facilities located
within a hotel, motel, or other similar transient occupancy
establishment. However, when located within a building in conjunction
with another use, including a restaurant, "bar" or "tavern" includes
only those areas used primarily for the sale and service of
alcoholic beverages. "Bar" or "tavern" does not include the dining
areas of a restaurant, regardless of whether alcoholic beverages are
served therein.
(9) Theatrical production sites, if smoking is an integral part of
the story in the theatrical production.
(10) Medical research or treatment sites, if smoking is integral
to the research and treatment being conducted.
(11) Private residences, except for private residences licensed as
family day care homes, during the hours of operation as family day
care homes and in those areas where children are present.
(12) Patient smoking areas in long-term health care facilities, as
defined in Section 1418 of the Health and Safety Code, provided that
all of the following conditions are met:
(A) The patient smoking area is not located in a patient's room.
(B) The patient smoking area is located outdoors in a courtyard,
patio, or other outdoor space that can be monitored by facility
staff.
(C) The patient smoking area is located in an area that reasonably
prevents smoke from entering the facility or patient rooms.
(12)
(13) Breakrooms designated by employers for smoking,
provided that all of the following conditions are met:
(A) Air from the smoking room shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking room shall not be
recirculated to other parts of the building.
(B) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
(C) The smoking room shall be located in a nonwork area where no
one, as part of his or her work responsibilities, is required to
enter. For purposes of this subparagraph, "work responsibilities"
does not include any custodial or maintenance work carried out in the
breakroom when it is unoccupied.
(D) There are sufficient nonsmoking breakrooms to accommodate
nonsmokers.
(13)
(14) Employers with a total of five or fewer employees,
either full time or part time, may permit smoking where all of the
following conditions are met:
(A) The smoking area is not accessible to minors.
(B) All employees who enter the smoking area consent to permit
smoking. No one, as part of his or her work responsibilities, shall
be required to work in an area where smoking is permitted. An
employer who is determined by the division to have used coercion to
obtain consent or who has required an employee to work in the smoking
area shall be subject to the penalty provisions of Section 6427.
(C) Air from the smoking area shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking area shall not be
recirculated to other parts of the building.
(D) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
This paragraph shall not be construed to (i) supersede or render
inapplicable any condition or limitation on smoking areas made
applicable to specific types of business establishments by any other
paragraph of this subdivision or (ii) apply in lieu of any otherwise
applicable paragraph of this subdivision that has become inoperative.
(e) Paragraphs (12) and (13) (13) and (14)
of subdivision (d) shall not be construed to require employers
to provide reasonable accommodation to smokers, or to provide
breakrooms for smokers or nonsmokers.
(f) (1) Except as otherwise provided in this subdivision, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), until the earlier of the following:
(A) January 1, 1998.
(B) The date of adoption of a regulation (i) by the Occupational
Safety and Health Standards Board reducing the permissible employee
exposure level to environmental tobacco smoke to a level that will
prevent anything other than insignificantly harmful effects to
exposed employees or (ii) by the federal Environmental Protection
Agency establishing a standard for reduction of permissible exposure
to environmental tobacco smoke to an exposure level that will prevent
anything other than insignificantly harmful effects to exposed
persons.
(2) If a regulation specified in subparagraph (B) of paragraph (1)
is adopted on or before January 1, 1998, smoking may thereafter be
permitted in gaming clubs and in bars and taverns, subject to full
compliance with, or conformity to, the standard in the regulation
within two years following the date of adoption of the regulation. An
employer failing to achieve compliance with, or conformity to, the
regulation within this two-year period shall prohibit smoking in the
gaming club, bar, or tavern until compliance or conformity is
achieved. If the Occupational Safety and Health Standards Board and
the federal Environmental Protection Agency both adopt regulations
specified in subparagraph (B) of paragraph (1) that are inconsistent,
the regulations of the Occupational Safety and Health Standards
Board shall be no less stringent than the regulations of the federal
Environmental Protection Agency.
(3) If a regulation specified in subparagraph (B) of paragraph (1)
is not adopted on or before January 1, 1998, the exemptions
specified in paragraphs (7) and (8) of subdivision (d) shall become
inoperative on and after January 1, 1998, until a regulation is
adopted. Upon adoption of such a regulation on or after January 1,
1998, smoking may thereafter be permitted in gaming clubs and in bars
and taverns, subject to full compliance with, or conformity to, the
standard in the regulation within two years following the date of
adoption of the regulation. An employer failing to achieve compliance
with, or conformity to, the regulation within this two-year period
shall prohibit smoking in the gaming club, bar, or tavern until
compliance or conformity is achieved. If the Occupational Safety and
Health Standards Board and the federal Environmental Protection
Agency both adopt regulations specified in subparagraph (B) of
paragraph (1) that are inconsistent, the regulations of the
Occupational Safety and Health Standards Board shall be no less
stringent than the regulations of the federal Environmental
Protection Agency.
(4) From January 1, 1997, to December 31, 1997, inclusive, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), subject to both of the following conditions:
(A) If practicable, the gaming club or bar or tavern shall
establish a designated nonsmoking area.
(B) If feasible, no employee shall be required, in the performance
of ordinary work responsibilities, to enter any area in which
smoking is permitted.
(g) The smoking prohibition set forth in this section shall
constitute a uniform statewide standard for regulating the smoking of
tobacco products in enclosed places of employment and shall
supersede and render unnecessary the local enactment or enforcement
of local ordinances regulating the smoking of tobacco products in
enclosed places of employment. Insofar as the smoking prohibition set
forth in this section is applicable to all (100-percent) places of
employment within this state and, therefore, provides the maximum
degree of coverage, the practical effect of this section is to
eliminate the need of local governments to enact enclosed workplace
smoking restrictions within their respective jurisdictions.
(h) Nothing in this section shall prohibit an employer from
prohibiting smoking in an enclosed place of employment for any
reason.
(i) The enactment of local regulation of smoking of tobacco
products in enclosed places of employment by local governments shall
be suspended only for as long as, and to the extent that, the
(100-percent) smoking prohibition provided for in this section
remains in effect. In the event this section is repealed or modified
by subsequent legislative or judicial action so that the
(100-percent) smoking prohibition is no longer applicable to all
enclosed places of employment in California, local governments shall
have the full right and authority to enforce previously enacted, and
to enact and enforce new, restrictions on the smoking of tobacco
products in enclosed places of employment within their jurisdictions,
including a complete prohibition of smoking. Notwithstanding any
other provision of this section, any area not defined as a "place of
employment" or in which smoking is not regulated pursuant to
subdivision (d) or (e), shall be subject to local regulation of
smoking of tobacco products.
(j) Any violation of the prohibition set forth in subdivision (b)
is an infraction, punishable by a fine not to exceed one hundred
dollars ($100) for a first violation, two hundred dollars ($200) for
a second violation within one year, and five hundred dollars ($500)
for a third and for each subsequent violation within one year. This
subdivision shall be enforced by local law enforcement agencies,
including, but not limited to, local health departments, as
determined by the local governing body.
(k) Notwithstanding Section 6309, the division shall not be
required to respond to any complaint regarding the smoking of tobacco
products in an enclosed space at a place of employment, unless the
employer has been found guilty pursuant to subdivision (j) of a third
violation of subdivision (b) within the previous year.
( l ) If any provision of this act or the application
thereof to any person or circumstances is held invalid, that
invalidity shall not affect other provisions or applications of the
act that can be given effect without the invalid provision or
application, and to this end the provisions of this act are
severable.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.