Amended in Assembly March 3, 2016

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, banquet rooms, warehouse facilities, and employee break rooms.

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

begin insert

This bill would incorporate additional changes to Section 6404.5 of the Labor Code proposed by certain bills in the Second Extraordinary Session of the 2015-16 Legislative Session that would become operative if this bill and those bills are enacted, as specified, and this bill is enacted last.

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:

begin delete

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) An employer or owner-operator of an owner-operated
business shall not knowingly or intentionally permit, and a person
shall not 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 owner-operator
of an 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 owner-operated business 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 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.

(2) 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.

(3) 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.

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

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

(6) 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.

(7) 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
owner-operator of an 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.

end delete

begin insert

begin insert SECTION 1. end insert   

end insert

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 an area not defined as a “place of
employment” pursuant to subdivision begin delete (d) or in which the smoking
of tobacco products is not regulated pursuant to subdivision end delete (e) is
subject to local regulation of smoking of tobacco products.

(b)  begin delete An employer shall not knowingly or intentionally permit,
and a person shall not engage in, the smoking of tobacco products
in an enclosed space at a place of employment. end delete begin insert 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. end insert
“Enclosed space” includes begin insert covered parking lots, end insert lobbies, lounges,
waiting areas, elevators, stairwells, and restrooms that are a
structural part of the building and not specifically defined in
subdivision begin delete (d). end delete begin insert (e). end insert

begin insert

(c) An employer or owner-operator of an owner-operated
business shall not knowingly or intentionally permit, and a person
shall not engage in, the smoking of tobacco products at a place of
employment or in an enclosed space.

end insert begin delete

(c)

end delete

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

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 begin delete employee. end delete begin insert employee or owner-operator. end insert

begin delete

(d)

end delete

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

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

begin delete

(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)

end delete

begin insert (2) end insert  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
begin delete establishment end delete begin insert establishment, end insert the main purpose of which is the sale
of tobacco products, including, but not limited to, cigars, pipe
tobacco, and smoking accessories.

begin delete

(5)

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 nonsmoking employees are not present.

begin delete

(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)

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

(10)

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

(11)

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

(12)

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.

begin delete

(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, an employee shall not be required, in the
performance of ordinary work responsibilities, to enter any area
in which smoking is permitted.

(g)

end delete

begin insert (f) end insert  The smoking prohibition set forth in this section constitutes
a uniform statewide standard for regulating the smoking of tobacco
products in enclosed places of employment and begin insert owner-operated
businesses and end insert supersedes and begin delete render end delete begin insert renders end insert unnecessary the
local enactment or enforcement of local ordinances regulating the
smoking of tobacco products in enclosed places of begin delete employment. end delete
begin insert employment and owner-operated businesses. end insert Insofar as the smoking
prohibition set forth in this section is applicable to all (100-percent)
places of employment begin insert and owner-operated businesses end insert 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.

begin delete

(h)

end delete

begin insert (g) end insert  This section does not prohibit an employer begin insert or
owner-operator of an owner-operated business end insert from prohibiting
smoking in an enclosed place of employment begin insert or owner-operated
business end insert for any reason.

begin delete

(i)

end delete

begin insert (h) end insert  The enactment of local regulation of smoking of tobacco
products in enclosed places of employment begin insert or owner-operated
businesses end insert 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 begin insert and
owner-operated businesses end insert 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 begin insert and owner-operated
businesses end insert within their jurisdictions, including a complete
prohibition of smoking. Notwithstanding any other provision of
this section, an area not defined as a “place of employment” or in
which smoking is not regulated pursuant to subdivision begin delete (d) or end delete (e),
is subject to local regulation of smoking of tobacco products.

begin delete

(j)

end delete

begin insert (i) end insert  A violation of the prohibition set forth in subdivision begin delete (b) end delete begin insert (c) end insert
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.

begin delete

(k)

end delete

begin insert (j) end insert  Notwithstanding Section 6309, the division begin delete shall end delete begin insert is end insert not begin delete be end delete
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
begin delete (j) end delete begin insert (i) end insert of a third violation of subdivision begin delete (b) end delete begin insert (c) end insert within the previous
year.

begin delete

(l) 

end delete

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

begin insert

begin insert SEC. 1.5. end insert   

end insert

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 an area not defined as a “place of
employment” pursuant to subdivision begin delete (d) or in which the smoking
of tobacco products is not regulated pursuant to subdivision end delete (e) is
subject to local regulation of smoking of tobacco products.

(b)  begin delete An employer shall not knowingly or intentionally permit,
and a person shall not engage in, the smoking of tobacco products
in an enclosed space at a place of employment. end delete begin insert 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. end insert
“Enclosed space” includes begin insert covered parking lots, end insert lobbies, lounges,
waiting areas, elevators, stairwells, and restrooms that are a
structural part of the building and not specifically defined in
subdivision begin delete (d). end delete begin insert (e). end insert

begin insert

(c) An employer or owner-operator of an owner-operated
business shall not knowingly or intentionally permit, and a person
shall not engage in, the smoking of tobacco products at a place of
employment or in an enclosed space.

end insert begin delete

(c)

end delete

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

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 begin delete employee. end delete begin insert employee or owner-operator. end insert

begin delete

(d)

end delete

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

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

begin delete

(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)

end delete

begin insert (2) end insert  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
begin delete establishment end delete begin insert establishment, end insert the main purpose of which is the sale
of tobacco products, including, but not limited to, cigars, pipe
tobacco, and smoking accessories.

begin delete

(5)

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 nonsmoking employees are not present.

begin delete

(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)

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

(10)

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

(11)

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

(12)

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.

begin delete

(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, an employee shall not be required, in the
performance of ordinary work responsibilities, to enter any area
in which smoking is permitted.

(g)

end delete

begin insert (f) end insert  The smoking prohibition set forth in this section constitutes
a uniform statewide standard for regulating the smoking of tobacco
products in enclosed places of employment and begin insert owner-operated
businesses and end insert supersedes and begin delete render end delete begin insert renders end insert unnecessary the
local enactment or enforcement of local ordinances regulating the
smoking of tobacco products in enclosed places of begin delete employment. end delete
begin insert employment and owner-operated businesses. end insert Insofar as the smoking
prohibition set forth in this section is applicable to all begin delete (100-percent) end delete
begin insert (100 percent) end insert places of employment begin insert and owner-operated
businesses end insert 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.

begin delete

(h)

end delete

begin insert (g) end insert  This section does not prohibit an employer begin insert or
owner-operator of an owner-operated business end insert from prohibiting
smoking begin insert of tobacco products end insert in an enclosed place of employment
begin insert or owner-operated business end insert for any reason.

begin delete

(i)

end delete

begin insert (h) end insert  The enactment of local regulation of smoking of tobacco
products in enclosed places of employment begin insert or owner-operated
businesses end insert by local governments shall be suspended only for as
long as, and to the extent that, the begin delete (100-percent) end delete begin insert (100 percent) end insert
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 begin delete (100-percent) end delete begin insert (100 percent) end insert
smoking prohibition is no longer applicable to all enclosed places
of employment begin insert and owner-operated businesses end insert 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
begin insert and owner-operated businesses end insert within their jurisdictions, including
a complete prohibition of smoking. Notwithstanding any other
provision of this section, an area not defined as a “place of
employment” or in which smoking is not regulated pursuant to
subdivision begin delete (d) or end delete (e), is subject to local regulation of smoking of
tobacco products.

begin delete

(j)

end delete

begin insert (i) end insert  A violation of the prohibition set forth in subdivision begin delete (b) end delete begin insert (c) end insert
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.

begin delete

(k)

end delete

begin insert (j) end insert  Notwithstanding Section 6309, the division begin delete shall end delete begin insert is end insert not begin delete be end delete
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
begin delete (j) end delete begin insert (i) end insert of a third violation of subdivision begin delete (b) end delete begin insert (c) end insert within the previous
year.

begin delete

(l) 

end delete

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

begin insert

(l) For purposes of this section, “smoking” has the same
meaning as in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin insert

(m) For purposes of this section, “tobacco product” means a
product or device as defined in subdivision (d) of Section 22950.5
of the Business and Professions Code.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1.5 of this bill incorporates amendments to
Section 6404.5 of the Labor Code proposed by both this bill and
Senate Bill 6 of the Second Extraordinary Session, Senate Bill 5
of the Second Extraordinary Session, and Assembly Bill 6 of the
Second Extraordinary Session. It shall only become operative if
(1) all bills are enacted, or just this bill and either or both Senate
Bill 5 of the Second Extraordinary Session and Assembly Bill 6 of
the Second Extraordinary Session are enacted, and become
effective on or before January 1, 2017, (2) each bill amends Section
6404.5 of the Labor Code, and (3) this bill is enacted after Senate
Bill 6 of the Second Extraordinary Session, Senate Bill 5 of the
Second Extraordinary Session, and Assembly Bill 6 of the Second
Extraordinary Session, in which case Section 1 of this bill shall
not become operative. end insert

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.