Amended in Assembly September 1, 2015

California Legislature—2015–16 Second Extraordinary Session

Assembly Bill No. 7

Introduced by Assembly Member Mark Stone

July 16, 2015

An act to amend Section 6404.5 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 7, as amended, Mark Stone. Smoking in the workplace.

Existing law prohibits smoking of tobacco products inside an enclosed space, as defined, at a place of employment. The violation of the prohibition against smoking in enclosed spaces of places of employment is an infraction punishable by a specified fine.

This bill would expand the prohibition on smoking in a place of employment to include an owner-operated business, as defined.

This bill would also eliminate most of the specified exemptions that permit smoking in certain work environments, such as hotel lobbies, bars and taverns, begin delete tobacco shops, end delete banquet rooms, warehouse facilities, and employee break rooms.

By expanding the scope of an infraction, this bill would impose a state-mandated local program.

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 6404.5 of the Labor Code is amended to
read:

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 (e) shall be subject to local
regulation of smoking of tobacco products.

(b) For purposes of this section, an “owner-operated business”
shall mean a business having no employees, independent
contractors, or volunteers, in which the owner-operator of the
business is the only worker. “Enclosed space” includes covered
parking lots, lobbies, lounges, waiting areas, elevators, stairwells,
and restrooms that are a structural part of the building and not
specifically defined in subdivision (e).

(c)  begin delete No end delete begin insert An end insert employer or begin insert owner-operator of an end insert owner-operated
business shall begin insert not end insert knowingly or intentionally permit, and begin delete no end delete begin insert a end insert
person shall begin insert not end insert engage in, the smoking of tobacco products at a
place of employment or in an enclosed space.

(d) For purposes of this section, an employer or begin insert owner-operator
of an end insert owner-operated business who permits any nonemployee
access to his or her place of employment or owner-operated
business 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 or
owner-operated business.

For purposes of this subdivision, “reasonable steps” does not
include (A) the physical ejection of a nonemployee from the place
of employment or begin insert owner-operated business or end insert (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 or owner-operator.

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

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

begin insert

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

end insert begin insert

(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.

end insert begin insert

(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.

end insert begin delete

(2)

end delete

begin insert (3) end insert  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.

begin delete

(3)

end delete

begin insert (4) end insert  Theatrical production sites, if smoking is an integral part of
the story in the theatrical production.

begin delete

(4)

end delete

begin insert (5) end insert  Medical research or treatment sites, if smoking is integral
to the research and treatment being conducted.

begin delete

(5)

end delete

begin insert (6) end insert  Private residences, except for private residences licensed as
family day care homes, where smoking is prohibited pursuant to
Section 1596.795 of the Health and Safety Code.

begin delete

(6)

end delete

begin insert (7) end insert  Patient smoking areas in long-term health care facilities, as
defined in Section 1418 of the Health and Safety Code.

(f) 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
owner-operated businesses 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 and owner-operated businesses. Insofar as the smoking
prohibition set forth in this section is applicable to all (100-percent)
places of employment and owner-operated businesses 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.

(g) Nothing in this section shall prohibit an employer or
begin insert owner-operator of an end insert owner-operated business from prohibiting
smoking in an enclosed place of employment or owner-operated
business for any reason.

(h) The enactment of local regulation of smoking of tobacco
products in enclosed places of employment or owner-operated
businesses 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 and
owner-operated businesses 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 and owner-operated
businesses 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 (e), shall
be subject to local regulation of smoking of tobacco products.

(i) Any violation of the prohibition set forth in subdivision (c)
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.

(j) Notwithstanding Section 6309, the division is not 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 (i) of
a third violation of subdivision (c) within the previous year.

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

SEC. 2.  

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.