BILL ANALYSIS                                                                                                                                                                                                    






                 Senate Committee on Labor and Industrial Relations
                                 Ted W. Lieu, Chair

          Date of Hearing: April 13, 2011              20011-2012 Regular 
          Session                              
          Consultant: Alma Perez                       Fiscal:Yes
                                                       Urgency: No
          
                                   Bill No: SB 575
                                 Author: DeSaulnier
                          Version: As amended April 6, 2011
          

                                       SUBJECT
          
                              Smoking in the workplace 


                                      KEY ISSUE

          Should exemptions in current law allowing the smoking of tobacco 
          products in certain indoor workplaces be removed?
                                          

                                       PURPOSE
          
          To remove specified exemptions in existing law that allow 
          tobacco smoking in certain indoor workplaces as well as restrict 
          indoor tobacco smoking in owner-operated businesses.


                                      ANALYSIS
          
           Existing law  prohibits employers from knowingly or intentionally 
          permitting the smoking of tobacco products in an enclosed space 
          at a place of employment.  Existing law exempts certain places 
          of employment from the prohibition on smoking tobacco products 
          in an enclosed space, among those include are:

                 Hotel or motel lobbies that meet certain size 
               requirements;  
                  Meeting and banquet rooms in hotels or motels;  
                  Retail or wholesale tobacco shops and private smokers' 
               lounges, as defined;  
                  Warehouse facilities, as defined;  
                  Gaming clubs, bars and taverns;  









                  Patient smoking areas in long-term health care 
               facilities;  
                  Break rooms designated for smoking by an employer; and  
                  Employers with five or fewer employees, among others.  
           
           Under existing law  , any violation of the prohibition results in 
          an infraction punishable by fines of $100 for a first violation, 
          $200 for a second violation within one year, and $500 for a 
          third and for each subsequent violation within one year.  
          Enforcement of the smoking prohibition is carried out by local 
          law enforcement agencies, unless an employer has been found 
          guilty of three or more violations which will require an 
          investigation by the Division of Occupational Safety and Health 
          (DOSH).   


          This Bill  would expand the prohibition on smoking in the 
          workplace by requiring that an owner-operated business, in 
          addition to employers with employees, prohibit the smoking of 
          tobacco products in an enclosed space at a place of employment 
          or owner-operated business, unless otherwise exempted.  

          Specifically, this bill would:

                 Define "owner-operated business" as a business having no 
               employees, independent contractors, or volunteers, in which 
               the owner-operator of the business is the only worker. 

                 Modify the exemption that currently allows smoking in 
               sixty-five percent (65%) of the guestroom accommodations in 
               a hotel, motel, or similar transient lodging establishment 
               by reducing that amount to twenty percent (20%). 

                 Modify the exemption on private residences licensed as a 
               family day care home to specify that smoking is prohibited 
               at all times, rather than current law which allows smoking 
               during non-work hours or when there are no children 
               present. 

                 Eliminate several exemptions in law which currently 
               allows the smoking of tobacco products in certain work 
               environments, thereby prohibiting the smoking of tobacco 
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               products indoors at the following locations:

                     Hotel or motel lobbies;
                     Meeting and banquet rooms in a hotel or motel;
                     Retail or wholesale tobacco shops and private 
                 smokers' lounges;
                     Warehouse facilities;
                     Gaming clubs;
                     Bars and taverns;
                     Patient smoking areas in long-term health care 
                 facilities;
                     Employee break rooms; 
                     Owner -operated businesses; and
                     Employers with a total of five or fewer employees.


                                      COMMENTS

          
          1.  Need for this bill?

            Current law generally prohibits smoking in places of 
            employment; however, the law contains a number of exemptions.  
            Since 1994, when the first bill to prohibit smoking tobacco in 
            enclosed spaces was passed, the research and evidence arguing 
            that secondhand smoke has a significant negative impact on a 
            person's health has grown considerably.  In 2006, both the 
            U.S. Department of Health and Human Services (DHH) and the 
            Center for Disease Control (CDC) released a study that stated 
            there was no safe level of environmental tobacco smoke, and 
            that it had "immediate adverse effects on the cardiovascular 
            system" in adults.  This study also said that conventional air 
            cleaning systems cannot remove the smaller particles or gases 
            associated with environmental tobacco smoke.  The report 
            concluded that establishing smoke-free workplaces was the only 
            effective way to ensure that secondhand smoke exposure does 
            not occur in the workplace.  

            Enforcement of the law has also been an issue of concern. 
            According to the California Department of Public Health (CDPH) 
            -- California Tobacco Control Program, while smoking inside 
            restaurants and bars has been banned since 1998,  concerns 
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            regarding the lack of clarity on what makes for a "retail or 
            wholesale tobacco shop" has led to some establishments (like 
            hookah bars) being able to allow for indoor smoking.  
            According to the CDPH, the definition, as is currently 
            written, lacks specificity on what does or does not make for a 
            retail or wholesale tobacco shop, and since tobacco shops are 
            exempted from the prohibition on indoor smoking, this lack of 
            clarity leaves the door open to abuse.  

            In addition, some establishments claim to be owner-operated, 
            rather than employers, by either claiming no employees or by 
            claiming that their employees are actually share-holders or 
            part owners.  This allows the establishment to allow the 
            smoking of tobacco products on their premises, creating many 
            of the same issues found with hookah bars.  According to the 
            CDPH, the ambiguity and contradictions in state law make 
            enforcement by cities and counties throughout California 
            difficult especially since investigating these cases can be 
            time-consuming and challenging because of these seemingly 
            contradictory interpretations.  

            The author believes that this bill would even the playing 
            field by requiring that all businesses abide by the same rules 
            when it comes to protecting California's workers from 
            secondhand smoke exposure.  This bill would eliminate most of 
            the exemptions in the workplace smoking prohibition and would 
            include any establishment, even if it is an owner-operated 
            business.  The penalties for violating the prohibition, and 
            the process for investigating the penalties would remain the 
            same.
               
          2. Bullets on the health impacts of secondhand smoke:  
            
                       According to the U.S. Department of Health and 
                  Human Services, secondhand smoke exposure can cause 
                  harmful health effects that include heart disease, heart 
                  attacks, lung cancer, asthma and chronic respiratory 
                  problems, among others. 

                       The U.S. Environmental Protection Agency 
                  classifies secondhand smoke as a Class "A" human 
                  carcinogen (cancer causing agent), the same class as 
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                  asbestos.  The California Air Resources Board has 
                  declared secondhand smoke to be a toxic air contaminant, 
                  in the same category as diesel exhaust.  

                       According to the California Department of Public 
                  Health, nonsmokers who are frequently exposed to high 
                  levels of secondhand smoke increase their risk of 
                  developing heart disease by 25-30%, and lung cancer by 
                  20-30%. 


                       The U.S. Surgeon General has concluded that there 
                  is no risk-free level of exposure to secondhand smoke, 
                  ventilation cannot eliminate exposure of nonsmokers to 
                  secondhand smoke, and establishing smoke-free 
                  environments is the only proven way to prevent exposure. 
                   (The Health Consequences of Involuntary Exposure to 
                  Tobacco Smoke: A Report of the Surgeon General, 2006)

                       According to the California Department of Public 
                  Health, smoking hookah for 45-60 minutes can be 
                  equivalent to smoking 100 or more cigarettes.   

                       On June 22, 2009, President Obama signed the 
                  Family Smoking Prevention and Tobacco Control Act giving 
                  the U.S. Food & Drug Administration (FDA) authority over 
                  tobacco products.  Among other things, this Act bans 
                  tobacco advertising within a thousand feet of schools 
                  and playgrounds; forces companies to more clearly and 
                  publicly acknowledge the harmful and deadly effects of 
                  the products they sell; and allows the scientists at the 
                  FDA to take other common-sense steps to reduce the 
                  harmful effects of smoking. 

          3.  Proponent Arguments  :
            
            According to the author, in 1994, California led the nation 
            when it passed a smoke free workplace law that helped protect 
            millions of workers and business patrons from the health 
            dangers associated with secondhand smoke. The author argues 
            that, unfortunately, California now lags behind other states' 
            smoke free workplace laws because of its exemptions which 
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            allow for indoor work environments where people may be exposed 
            to secondhand smoke.

            According to proponents, there is simply no safe level of 
            exposure to secondhand smoke.  Proponents content that almost 
            14 percent of indoor workers reported being exposed to 
            secondhand smoke at work in the previous two weeks in the 
            California Tobacco Survey. Proponents argue that this 
            workplace exposure is not spread equitably across all workers 
            as low-income workers, young adults, and Latinos are 
            disproportionately exposed.  According to proponents, 
            employees who work in the settings currently exempted deserve 
            as much protection as the rest of us.  This bill proposes to 
            eliminate some of the current exemptions to strengthen the 
            state's smoke free workplace law and meet the Centers for 
            Disease Control's 100% smoke free designation level which will 
            help protect employees from secondhand smoke.  According to 
            proponents, twenty-four other states have already received 
            this distinction and they believe it is time that California, 
            the state that paved the way for 100% smoke free, joins them.  


            In addition, proponents argue that eliminating the exemptions 
            will also help aid enforcement of the law by clarifying 
            ambiguities that some of the exemptions create. Proponents 
            contend that one of the most problematic exemptions has been 
            used by businesses that serve food and drink while trying to 
            use the exemption for retail tobacco shops that allows indoor 
            smoking. Proponents argue that, unfortunately, this exposes 
            workers and patrons to toxic secondhand smoke and also creates 
            an environment that has been especially appealing to young 
            adults who are then introduced to smoking.  

          4.  Opponent Arguments  :

            The California Association of Health Facilities (CAHF) opposes 
            this bill contending that it would prohibit a resident from 
            smoking in a long term care facility.  CAHF argues that 
            smoking is an activity that many residents enjoy and one that 
            can help maintain a sense of stability while residents 
            transition to life in a long-term health care facility.  
            According to CAHF, federal law does not permit facilities or 
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            the state to deter and/or undermine a resident's ability to 
            make autonomous decisions.  CAHF argues that residents have a 
            right to self-determination, regardless of his or her 
            residence in a long-term health care facility. 

            According to CAHF, most facilities have designated smoking 
            areas that are outside (on a patio) which help ensure that 
            employees and residents are not exposed to any substantial 
            amount of secondhand smoke.  However, CAHF argues that there 
            may be certain weather conditions (extreme heat or extreme 
            cold) that cause facilities to try to accommodate the needs of 
            smoking residents indoors, rather than risking their health by 
            making them go outside.  For this reason CAHF opposes the bill 
            unless it is amended to restore the exemption to the 
            definition of "place of employment" for long-term care 
            facilities. 

            Opponents also argue that tobacco shops have become the 
            modern-day barbers or general store - a safe, 
            publicly-accessible business where cigar smokers may meet and 
            enjoy each other's company. According to opponents, to ban 
            smoking in such destination-only locations, where a non-smoker 
            will not go into knowing the nature of the business, would 
            prove financially devastating to these small businesses.  In 
            addition, opponents argue that lost sales translate into less 
            excise and sales tax revenues for the state, employees losing 
            their jobs due to declining business, and even businesses 
            closing.  For this reason, the Premium Cigar & Pipe Retailers 
            Association opposes the bill unless it is amended to restore 
            the exemption for retail tobacco shops. 

          5.  Related and Prior Legislation  :

            AB 217 (Carter) of 2011: Currently in Assembly Appropriations 
            Committee
            AB 217 would modify an exemption in current law authorizing 
            smoking in "patient smoking areas" in long-term health care 
            facilities.  As recently amended, the bill would allow for 
            patient smoking areas that meet specified conditions.  AB 217 
            passed the Assembly Committee on Labor and Employment. 

            AB 1467 (DeSaulnier) of 2007: Vetoed by the Governor
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            AB 1467 would have removed the exemptions that permit smoking 
            in specified bars, warehouses, hotel lobbies, employee break 
            rooms, and meeting and banquet rooms, while retaining 
            exemptions for other types of businesses. In addition, this 
            bill would have prohibited smoking in specified owner-operated 
            businesses regardless of whether or not they have employees.  

            AB 2067 (Oropeza) of 2006: Chapter 736, Statutes of 2006
            AB 2067 prohibits smoking in covered parking lots and adds to 
            the definition of "enclosed spaces" lobbies, lounges, waiting 
            areas, elevators, stairwells and restrooms that are a 
            structural part of the building, thereby prohibiting smoking 
            in those areas.

            AB 3037 (Cannella) of 1996: Chapter 989, Statutes of 1996
            AB 3037 extended exemptions to the prohibition of smoking in 
            bars, taverns, and gaming clubs to January 1, 1998.  Smoking 
            in bars, taverns, and gaming clubs could only continue beyond 
            that date if regulations were adopted by either the 
            Occupational Safety and Health Standards Board or the federal 
            Environmental Protection Agency on an exposure level of 
            environmental tobacco smoke that carried insignificantly 
            harmful effects to exposed persons.

            AB 13 (Friedman) of 1994: Chapter 310, Statutes of 1994
            AB 13 prohibited employers from knowingly or intentionally 
            permitting, or any person from engaging in, the smoking of 
            tobacco products in enclosed places of employment, with 
            specific exemptions.  AB 13 allowed for the smoking of tobacco 
            products in bars, taverns, and gaming clubs until January 1, 
            1997 if regulations were adopted by either the Occupational 
            Safety and Health Standards Board or the federal Environmental 
            Protection Agency on an exposure level of environmental 
            tobacco smoke that carried insignificantly harmful effects to 
            exposed persons.

                                       SUPPORT
          
          American Cancer Society - (Co-Sponsor)
          American Heart Association - (Co-Sponsor)
          American Lung Association - (Co-Sponsor) 
          American Federation of State, County and Municipal Employees 
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          (AFSCME) 
          California Conference Board of the Amalgamated Transit Union 
          California Conference of Machinists 
          California Official Court Reporters Association 
          California Teamsters Public Affairs Council 
          Coalition of Lavender-Americans on Smoking & Health (CLASH) 
          Engineers and Scientists of California 
          Health Officers Association of California (HOAC)
          Humboldt County Department of Health and Human Services 
          International Longshore and Warehouse Union 
          Professional and Technical Engineers, Local 21 
          San Francisco Tobacco Free Coalition 
          Tobacco Free Coalition of Kern County 
          UNITE HERE!
          United Food and Commercial Workers - Western States Conference 
          Utility Workers Union of America, Local 132 
          
                                     OPPOSITION
          
          California Association of Health Facilities (CAHF) - (Oppose 
            Unless Amended) 
          Cigar Association of America 
          International Premium Cigar & Pipe Retailers Association (IPCPR) 
            - (Oppose Unless Amended) 
          Small Business Commission, City and County of San Francisco 
          1 Constituent 















          Hearing Date:  April 13, 2011                            SB 575  
          Consultant: Alma Perez                                   Page 9

          Senate Committee on Labor and Industrial Relations