BILL ANALYSIS Ó 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 SB 575 Page 2 (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. SB 575 Page 3 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. SB 575 Page 4 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. SB 575 Page 5 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 SB 575 Page 6 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 SB 575 Page 7 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