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 Hearing Date: April 13, 2011 SB 575 Consultant: Alma Perez Page 2 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 Hearing Date: April 13, 2011 SB 575 Consultant: Alma Perez Page 3 Senate Committee on Labor and Industrial Relations 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 Hearing Date: April 13, 2011 SB 575 Consultant: Alma Perez Page 4 Senate Committee on Labor and Industrial Relations 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 Hearing Date: April 13, 2011 SB 575 Consultant: Alma Perez Page 5 Senate Committee on Labor and Industrial Relations 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 Hearing Date: April 13, 2011 SB 575 Consultant: Alma Perez Page 6 Senate Committee on Labor and Industrial Relations 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 Hearing Date: April 13, 2011 SB 575 Consultant: Alma Perez Page 7 Senate Committee on Labor and Industrial Relations 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 Hearing Date: April 13, 2011 SB 575 Consultant: Alma Perez Page 8 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 Hearing Date: April 13, 2011 SB 575 Consultant: Alma Perez Page 9 Senate Committee on Labor and Industrial Relations