BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 575
                                                                  Page  1

          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