BILL ANALYSIS Ó
SB 575
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Date of Hearing: July 6, 2011
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Isadore Hall, Chair
SB 575 (DeSaulnier) - As Amended: May 31, 2011
SENATE VOTE : 25-14
SUBJECT : Smoking in the workplace
SUMMARY : Expands the prohibition on smoking in a place of
employment to include an owner-operated business, and also
eliminates most of the specified exemptions that permit smoking
in certain work environments. Specifically, this bill :
1)Prohibits smoking in an "owner-operated business."
2)Defines "owner-operated business" to mean a business having no
employees, independent contractors, or volunteers, in which
the owner-operator of the business is the only worker.
3)Eliminates most of the current exemptions in law that permits
smoking in certain work environments, such as hotel lobbies,
bars and taverns, banquet rooms, warehouse facilities,
employee break rooms, employers with five or fewer employees,
and long term health care facilities, as defined.
EXISTING LAW :
1)Prohibits the smoking of tobacco products in an enclosed space
at a place of employment, unless otherwise exempted.
Violation of the prohibition results in fines of $100 for the
first violations, $200 for a second violation within one year,
and $500 for a third and 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 of the Division of Occupational Safety and
Health (DOSH).
2)Exempts certain places of employment from the prohibition on
smoking tobacco products in an enclosed space, including:
(1) Hotel or motel lobbies that meet certain size
requirements
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(2) Meeting and banquet rooms in hotels or motels.
(3) Retail or whole tobacco shops and private
smokers' lounge, as defined.
(4) Warehouse facilities, as define.
(5) Gaming clubs, bars and taverns.
(6) Break rooms designated for smoking by an
employer.
(7) Employers with five or fewer employees.
FISCAL EFFECT : Unknown.
COMMENTS :
Background : California was the first state to initiate any sort
of state-wide ban or regulation of smoking. This Smoking Law
was passed in 1994 and became fully effective in 1998. The
reason for this smoking law becoming state-wide was to eliminate
local governments from passing and enforcing their own smoking
laws and therefore creating confusion among smokers. As a
result, a uniform, state-wide regulation or ban on smoking
became law. The law was also established to protect workers who
had to work in enclosed workplaces.
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. 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
permits the establishment to allow the smoking of tobacco
products on their premises. According to the California
Department of Public Health (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.
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Trends in Tobacco use in California: According to a December,
2010 report by the California Department of Public titled, "Two
Decades of the California Tobacco Control Program: California
Tobacco Survey, 1990-2008," California continues to do better
than the rest of the U.S. in tobacco control. The report found
that the reported smoking prevalence among adults in California
continues to decline and is consistently lower that in the rest
of the nation. Furthermore, the report also found that the
decline in adult smoking is prevalent across all demographic
groups.
Even though the report found that 14 percent of nonsmokers still
reported exposure to secondhand smoke at their workplace, the
same report also found that 95 percent of smokers and 97 percent
of nonsmokers report working in a completely smoke-free
workplace. In fact the report found that most secondhand smoke
exposure was outside of the work and home environments.
Local smokefree laws : California law does not preempt local
governments from adopting smokefree air laws. Despite some
initial confusion after the passage of AB 13 in 1994, subsequent
interpretation of the law and legal opinions demonstrate that
California communities do have the right to enact smokefree air
laws, including areas addressed in this bill.
Numerous California communities have adopted local 100%
smokefree laws that are stronger than the state law, providing
workers and the public 100% smokefree protection in enclosed
workplaces and public places. Additionally, many California
communities are expanding smokefree protections to outdoor
workplaces and outdoor public places where people gather, such
as near building entrances, in service lines, on patio dining
areas, and at parks, beaches, community events, and recreation
facilities.
Purpose of the bill : The bill would eliminate most of the
exemptions that currently permit smoking in certain work
environments.
According to the author : In 1994, California led the nation
when it passed a smokefree workplace law. This groundbreaking
law helped protect millions of workers and business patrons from
the health dangers associated with secondhand smoke, including
cancer, heart disease and stroke, and respiratory diseases.
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However, that law, which included a handful of exemptions, now
lags behind other states' smokefree workplace laws because of
those exemptions.
This bill proposes to eliminate some of the current exemptions
to strengthen the state's smokefree workplace law and meet the
Centers for Disease Control and Prevention's 100 percent
smokefree designation levels, which will help protect employees
from secondhand smoke.
Eliminating the exemptions will also help aid enforcement of the
law by clarifying ambiguities that some of the exemptions
create.
Arguments in support : According to supporters of the bill,
there is no safe level of exposure to secondhand smoke. They
argue 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 places 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 percent smoke free designation
level which will help protect employees from secondhand smoke.
They further argue that twenty-four other states have already
received this distinction and they believe it is time that
California, the state that paved the way for smoke free work
environments, joins them.
Arguments in opposition : The California Association of Health
Facilities (CAHF) writes in opposition stating that unlike
businesses, skilled nursing facilities are regulated under both
state and federal law. Federal law establishes that skilled
nursing facilities are supposed to provide a "home like"
environment for patients. Unless the facility has gone through
specified steps to become a completely non-smoking facility
(which requires grand-fathering in those patients who currently
smoke), the facility is prohibited from banning a resident from
smoking altogether.
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CAHF further argues that most facilities have designated smoking
areas that are outside. As a result, employees and residents are
not exposed to any substantial amount of secondhand smoke. The
open-air environment ensures residents and employees do not have
a significant risk for cancer or reproductive harm.
CAHF is requesting the measure be amended to allow an indoor
smoking area to be established temporarily, during inclement
weather, to accommodate the needs of smoking residents indoors
rather than risking their health by making them use an outdoor
area during inclement weather conditions.
The Cigar Association of American (CAA) also writes in
opposition to the bill stating that while CAA does not object to
the removal of the current exemption for all warehouse
facilities in California, they must regretfully oppose unless
the bill specifically protects tobacco manufacturers, leaf
dealers, importers, wholesalers and distributor warehouses or
facilities from California's workplace band. CAA states that
the burning of tobacco is an absolutely integral process in the
manufacture and distribution of cigars and tobacco as
manufacturers and distributors must burn tobacco for a variety
of quality control reasons.
CAA would also like to see the bill amended to retain the
current exemptions for meeting and banquet rooms in a hotel,
motel, or other transient lodging establishment. CAA claims
that "the inclusion of this ban in SB 575 would mean that
California hotels and convention centers could no longer host
trade shows, conferences, exhibitions or industry events related
to cigar manufacturers, importers distributors or suppliers."
Related Legislation : AB 217 (Carter) of 2011. Restricts
smoking in long-term health care facilities by only allowing
smoking in a designated patient smoking area that is outdoors,
in an area that reasonably prevents smoke from entering the
facility or patient rooms, and that is not located in a
patient's room. Pending in Senate Health Committee.
Prior Legislation : AB 1467 (DeSaulnier), 2007-2008 Legislative
Session. Similar to this bill, this bill 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 businesses. In
addition, the bill would have prohibited smoking in specified
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owner-operated businesses. The bill was vetoed by the Governor.
AB 2067 (Oropeza), Chapter 736, Statutes of 2006. The bill
prohibited 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 846 (Vargas), Chapter 342, Statutes of 2003. The bill
prohibited smoking inside public buildings and within 20 feet of
a main exit, entrance, or operable window of a public building.
AB 3037 (Cannella), Chapter 989, Statutes of 1996. The bill
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 of exposed
persons.
AB 13 (Friedman), Chapter 310, Statutes of 1994. The bill
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.
REGISTERED SUPPORT / OPPOSITION :
Support
American Cancer Society (co-sponsor)
American Heart Association (co-sponsor)
American Lung Association (co-sponsor)
Health Officers Association of California (co-sponsor)
Alameda County Board of Supervisors
American Stroke Association
California Academy of Family Physicians
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Labor Federation
CA Official Court Reporters Association
California Optometric Association
California Teamsters Public Affairs Council
County Health Executives Association of California
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County of Santa Clara
Engineers and Scientists of California
International Longshore and Warehouse Union
Latino Coalition for a Healthy California
Los Angeles County Board of Supervisors
Professional and Technical Engineers, Local 21
Tobacco Education and Research Oversight Committee
United Food and Commercial Workers - Western States Conference
Unite Here!
Utility Workers Union of America, Local 132
Opposition
Cigar Association of America (unless amended)
California Association of Health Facilities (unless amended)
Analysis Prepared by : Felipe Lopez / G. O. / (916) 319-2531