BILL ANALYSIS Ó
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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Senate Committee on Labor and Industrial Relations
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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Senate Committee on Labor and Industrial Relations
(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
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Senate Committee on Labor and Industrial Relations