Amended in Senate May 15, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1819

Introduced by Assembly Member Hall

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(Coauthors: Assembly Members Garcia and Ting)

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February 18, 2014

An act to amend Section 1596.795 of the Health and Safety Code, begin insert and to amend Section 6404.5 of the Labor Code, end insert relating to public health.

LEGISLATIVE COUNSEL’S DIGEST

AB 1819, as amended, Hall. Family day care home: smoking prohibition.

Existing law, the California Child Day Care Facilities Act, governs the licensing and operation of family day care homes and requires the State Department of Social Services to administer these provisions. Among other things, the act prohibits the smoking of tobacco in a private residence that is licensed as a family day care home during the hours of operation as a family day care home. A person who willfully or repeatedly violates a provision of the act is guilty of a misdemeanor.

This bill would prohibit the smoking of tobacco in a private residence that is licensed as a family day care home without regard to whether the act occurs during the hours of operation of the home. By expanding the scope of a crime, the bill would impose a state-mandated local program. begin insert The bill would also make a conforming change. end insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1596.795 of the Health and Safety Code
is amended to read:

1596.795.  

(a) The smoking of tobacco in a private residence
that is licensed as a family day care home shall be prohibited in
the home and in those areas of the family day care home where
children are present. Nothing in this section shall prohibit a city
or county from enacting or enforcing an ordinance relating to
smoking in a family day care home if the ordinance is more
stringent than this section.

(b)  The smoking of tobacco on the premises of a licensed day
care center shall be prohibited.

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begin insert SEC. 2. end insert   

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begin insert Section 6404.5 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

6404.5.  

(a) The Legislature finds and declares that regulation
of smoking in the workplace is a matter of statewide interest and
concern. It is the intent of the Legislature in enacting this section
to prohibit the smoking of tobacco products in all (100 percent of)
enclosed places of employment in this state, as covered by this
section, thereby eliminating the need of local governments to enact
workplace smoking restrictions within their respective jurisdictions.
It is further the intent of the Legislature to create a uniform
statewide standard to restrict and prohibit the smoking of tobacco
products in enclosed places of employment, as specified in this
section, in order to reduce employee exposure to environmental
tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees, and also to
eliminate the confusion and hardship that can result from enactment
or enforcement of disparate local workplace smoking restrictions.
Notwithstanding any other provision of this section, it is the intent
of the Legislature that any area not defined as a “place of
employment” pursuant to subdivision (d) or in which the smoking
of tobacco products is not regulated pursuant to subdivision (e)
shall be subject to local regulation of smoking of tobacco products.

(b) No employer shall knowingly or intentionally permit, and
no person shall engage in, the smoking of tobacco products in an
enclosed space at a place of employment. “Enclosed space”
includes lobbies, lounges, waiting areas, elevators, stairwells, and
restrooms that are a structural part of the building and not
specifically defined in subdivision (d).

(c) For purposes of this section, an employer who permits any
nonemployee access to his or her place of employment on a regular
basis has not acted knowingly or intentionally in violation of this
section if he or she has taken the following reasonable steps to
prevent smoking by a nonemployee:

(1) Posted clear and prominent signs, as follows:

(A) Where smoking is prohibited throughout the building or
structure, a sign stating “No smoking” shall be posted at each
entrance to the building or structure.

(B) Where smoking is permitted in designated areas of the
building or structure, a sign stating “Smoking is prohibited except
in designated areas” shall be posted at each entrance to the building
or structure.

(2) Has requested, when appropriate, that a nonemployee who
is smoking refrain from smoking in the enclosed workplace.

For purposes of this subdivision, “reasonable steps” does not
include (A) the physical ejection of a nonemployee from the place
of employment or (B) any requirement for making a request to a
nonemployee to refrain from smoking, under circumstances
involving a risk of physical harm to the employer or any employee.

(d) For purposes of this section, “place of employment” does
not include any of the following:

(1) Sixty-five percent of the guestroom accommodations in a
hotel, motel, or similar transient lodging establishment.

(2) Areas of the lobby in a hotel, motel, or other similar transient
lodging establishment designated for smoking by the establishment.
An establishment may permit smoking in a designated lobby area
that does not exceed 25 percent of the total floor area of the lobby
or, if the total area of the lobby is 2,000 square feet or less, that
does not exceed 50 percent of the total floor area of the lobby. For
purposes of this paragraph, “lobby” means the common public
area of an establishment in which registration and other similar or
related transactions, or both, are conducted and in which the
establishment’s guests and members of the public typically
congregate.

(3) Meeting and banquet rooms in a hotel, motel, other transient
lodging establishment similar to a hotel or motel, restaurant, or
public convention center, except while food or beverage functions
are taking place, including setup, service, and cleanup activities,
or when the room is being used for exhibit purposes. At times
when smoking is not permitted in a meeting or banquet room
pursuant to this paragraph, the establishment may permit smoking
in corridors and prefunction areas adjacent to and serving the
meeting or banquet room if no employee is stationed in that
corridor or area on other than a passing basis.

(4) Retail or wholesale tobacco shops and private smokers’
lounges. For purposes of this paragraph:

(A) “Private smokers’ lounge” means any enclosed area in or
attached to a retail or wholesale tobacco shop that is dedicated to
the use of tobacco products, including, but not limited to, cigars
and pipes.

(B) “Retail or wholesale tobacco shop” means any business
establishment the main purpose of which is the sale of tobacco
products, including, but not limited to, cigars, pipe tobacco, and
smoking accessories.

(5) Cabs of motortrucks, as defined in Section 410 of the Vehicle
Code, or truck tractors, as defined in Section 655 of the Vehicle
Code, if no nonsmoking employees are present.

(6) Warehouse facilities. For purposes of this paragraph,
“warehouse facility” means a warehouse facility with more than
100,000 square feet of total floorspace, and 20 or fewer full-time
employees working at the facility, but does not include any area
within a facility that is utilized as office space.

(7) Gaming clubs, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, “gaming club” means any
gaming club, as defined in Section 19802 of the Business and
Professions Code, or bingo facility, as defined in Section 326.5 of
the Penal Code, that restricts access to minors under 18 years of
age.

(8) Bars and taverns, in which smoking is permitted by
subdivision (f). For purposes of this paragraph, “bar” or “tavern”
means a facility primarily devoted to the serving of alcoholic
beverages for consumption by guests on the premises, in which
the serving of food is incidental. “Bar or tavern” includes those
facilities located within a hotel, motel, or other similar transient
occupancy establishment. However, when located within a building
in conjunction with another use, including a restaurant, “bar” or
“tavern” includes only those areas used primarily for the sale and
service of alcoholic beverages. “Bar” or “tavern” does not include
the dining areas of a restaurant, regardless of whether alcoholic
beverages are served therein.

(9) Theatrical production sites, if smoking is an integral part of
the story in the theatrical production.

(10) Medical research or treatment sites, if smoking is integral
to the research and treatment being conducted.

(11) Private residences, except for private residences licensed
as family day care homes, begin delete during the hours of operation as family
day care homes and in those areas where children are present. end delete
begin insert where smoking is prohibited pursuant to Section 1596.795 of the
Health and Safety Code. end insert

(12) Patient smoking areas in long-term health care facilities,
as defined in Section 1418 of the Health and Safety Code.

(13) Breakrooms designated by employers for smoking, provided
that all of the following conditions are met:

(A) Air from the smoking room shall be exhausted directly to
the outside by an exhaust fan. Air from the smoking room shall
not be recirculated to other parts of the building.

(B) The employer shall comply with any ventilation standard
or other standard utilizing appropriate technology, including, but
not limited to, mechanical, electronic, and biotechnical systems,
adopted by the Occupational Safety and Health Standards Board
or the federal Environmental Protection Agency. If both adopt
inconsistent standards, the ventilation standards of the Occupational
Safety and Health Standards Board shall be no less stringent than
the standards adopted by the federal Environmental Protection
Agency.

(C) The smoking room shall be located in a nonwork area where
no one, as part of his or her work responsibilities, is required to
enter. For purposes of this subparagraph, “work responsibilities”
does not include any custodial or maintenance work carried out in
the breakroom when it is unoccupied.

(D) There are sufficient nonsmoking breakrooms to
accommodate nonsmokers.

(14) Employers with a total of five or fewer employees, either
full time or part time, may permit smoking where all of the
following conditions are met:

(A) The smoking area is not accessible to minors.

(B) All employees who enter the smoking area consent to permit
smoking. No one, as part of his or her work responsibilities, shall
be required to work in an area where smoking is permitted. An
employer who is determined by the division to have used coercion
to obtain consent or who has required an employee to work in the
smoking area shall be subject to the penalty provisions of Section
6427.

(C) Air from the smoking area shall be exhausted directly to
the outside by an exhaust fan. Air from the smoking area shall not
be recirculated to other parts of the building.

(D) The employer shall comply with any ventilation standard
or other standard utilizing appropriate technology, including, but
not limited to, mechanical, electronic, and biotechnical systems,
adopted by the Occupational Safety and Health Standards Board
or the federal Environmental Protection Agency. If both adopt
inconsistent standards, the ventilation standards of the Occupational
Safety and Health Standards Board shall be no less stringent than
the standards adopted by the federal Environmental Protection
Agency.

This paragraph shall not be construed to (i) supersede or render
inapplicable any condition or limitation on smoking areas made
applicable to specific types of business establishments by any other
paragraph of this subdivision or (ii) apply in lieu of any otherwise
applicable paragraph of this subdivision that has become
inoperative.

(e) Paragraphs (13) and (14) of subdivision (d) shall not be
construed to require employers to provide reasonable
accommodation to smokers, or to provide breakrooms for smokers
or nonsmokers.

(f) (1) Except as otherwise provided in this subdivision,
smoking may be permitted in gaming clubs, as defined in paragraph
(7) of subdivision (d), and in bars and taverns, as defined in
paragraph (8) of subdivision (d), until the earlier of the following:

(A) January 1, 1998.

(B) The date of adoption of a regulation (i) by the Occupational
Safety and Health Standards Board reducing the permissible
employee exposure level to environmental tobacco smoke to a
level that will prevent anything other than insignificantly harmful
effects to exposed employees or (ii) by the federal Environmental
Protection Agency establishing a standard for reduction of
permissible exposure to environmental tobacco smoke to an
exposure level that will prevent anything other than insignificantly
harmful effects to exposed persons.

(2) If a regulation specified in subparagraph (B) of paragraph
(1) is adopted on or before January 1, 1998, smoking may thereafter
be permitted in gaming clubs and in bars and taverns, subject to
full compliance with, or conformity to, the standard in the
regulation within two years following the date of adoption of the
regulation. An employer failing to achieve compliance with, or
conformity to, the regulation within this two-year period shall
prohibit smoking in the gaming club, bar, or tavern until
compliance or conformity is achieved. If the Occupational Safety
and Health Standards Board and the federal Environmental
Protection Agency both adopt regulations specified in subparagraph
(B) of paragraph (1) that are inconsistent, the regulations of the
Occupational Safety and Health Standards Board shall be no less
stringent than the regulations of the federal Environmental
Protection Agency.

(3) If a regulation specified in subparagraph (B) of paragraph
(1) is not adopted on or before January 1, 1998, the exemptions
specified in paragraphs (7) and (8) of subdivision (d) shall become
inoperative on and after January 1, 1998, until a regulation is
adopted. Upon adoption of such a regulation on or after January
1, 1998, smoking may thereafter be permitted in gaming clubs and
in bars and taverns, subject to full compliance with, or conformity
to, the standard in the regulation within two years following the
date of adoption of the regulation. An employer failing to achieve
compliance with, or conformity to, the regulation within this
two-year period shall prohibit smoking in the gaming club, bar,
or tavern until compliance or conformity is achieved. If the
Occupational Safety and Health Standards Board and the federal
Environmental Protection Agency both adopt regulations specified
in subparagraph (B) of paragraph (1) that are inconsistent, the
regulations of the Occupational Safety and Health Standards Board
shall be no less stringent than the regulations of the federal
Environmental Protection Agency.

(4) From January 1, 1997, to December 31, 1997, inclusive,
smoking may be permitted in gaming clubs, as defined in paragraph
(7) of subdivision (d), and in bars and taverns, as defined in
paragraph (8) of subdivision (d), subject to both of the following
conditions:

(A) If practicable, the gaming club or bar or tavern shall
establish a designated nonsmoking area.

(B) If feasible, no employee shall be required, in the
performance of ordinary work responsibilities, to enter any area
in which smoking is permitted.

(g) The smoking prohibition set forth in this section shall
constitute a uniform statewide standard for regulating the smoking
of tobacco products in enclosed places of employment and shall
supersede and render unnecessary the local enactment or
enforcement of local ordinances regulating the smoking of tobacco
products in enclosed places of employment. Insofar as the smoking
prohibition set forth in this section is applicable to all (100-percent)
places of employment within this state and, therefore, provides
the maximum degree of coverage, the practical effect of this section
is to eliminate the need of local governments to enact enclosed
workplace smoking restrictions within their respective jurisdictions.

(h) Nothing in this section shall prohibit an employer from
prohibiting smoking in an enclosed place of employment for any
reason.

(i) The enactment of local regulation of smoking of tobacco
products in enclosed places of employment by local governments
shall be suspended only for as long as, and to the extent that, the
(100-percent) smoking prohibition provided for in this section
remains in effect. In the event this section is repealed or modified
by subsequent legislative or judicial action so that the (100-percent)
smoking prohibition is no longer applicable to all enclosed places
of employment in California, local governments shall have the full
right and authority to enforce previously enacted, and to enact and
enforce new, restrictions on the smoking of tobacco products in
enclosed places of employment within their jurisdictions, including
a complete prohibition of smoking. Notwithstanding any other
provision of this section, any area not defined as a “place of
employment” or in which smoking is not regulated pursuant to
subdivision (d) or (e), shall be subject to local regulation of
smoking of tobacco products.

(j) Any violation of the prohibition set forth in subdivision (b)
is an infraction, punishable by a fine not to exceed one hundred
dollars ($100) for a first violation, two hundred dollars ($200) for
a second violation within one year, and five hundred dollars ($500)
for a third and for each subsequent violation within one year. This
subdivision shall be enforced by local law enforcement agencies,
including, but not limited to, local health departments, as
determined by the local governing body.

(k) Notwithstanding Section 6309, the division shall not be
required to respond to any complaint regarding the smoking of
tobacco products in an enclosed space at a place of employment,
unless the employer has been found guilty pursuant to subdivision
(j) of a third violation of subdivision (b) within the previous year.

(l) If any provision of this act or the application thereof to any
person or circumstances is held invalid, that invalidity shall not
affect other provisions or applications of the act that can be given
effect without the invalid provision or application, and to this end
the provisions of this act are severable.

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.