BILL NUMBER: AB 3037 CHAPTERED
BILL TEXT
CHAPTER 989
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 1996
APPROVED BY GOVERNOR SEPTEMBER 27, 1996
PASSED THE ASSEMBLY AUGUST 30, 1996
PASSED THE SENATE AUGUST 19, 1996
AMENDED IN SENATE AUGUST 6, 1996
AMENDED IN SENATE JUNE 27, 1996
INTRODUCED BY Assembly Member Cannella
FEBRUARY 23, 1996
An act to amend Section 6404.5 of the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 3037, Cannella. Places of employment: smoking.
Existing law, with delineated exceptions, prohibits smoking of
tobacco products in enclosed spaces at places of employment. Among
the exceptions in existing law are specified bars and taverns and
gaming clubs, but these exceptions are suspended on January 1, 1997,
unless and until the Occupational Safety and Health Standards Board
or the Environmental Protection Agency adopts prescribed standards
for reducing employee exposure to environmental tobacco smoke. Under
existing law, once those standards have been adopted, a condition to
continuance of the exemption is conformity with the standards within
2 years following their adoption.
This bill would extend from January 1, 1997, to January 1, 1998,
the date by which the standards board or Environmental Protection
Agency must adopt those standards for employee exposure to
environmental tobacco smoke in order to permit continuance of the
exemption for bars and taverns and gaming clubs. However, in order
to qualify for this exemption in 1997, the bill would require that,
if practicable, the gaming club, bar, or tavern establish a
designated nonsmoking area and that, if feasible, not require any
employee, in the performance of ordinary work responsibilities, to
enter any area in which smoking is permitted.
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 (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.
(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 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 guest room 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. Such 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 such 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 such 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 floor space, and 20 or fewer full-time
employees working at the facility, but does not include any area
within such 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, during the hours of operation as family day
care homes and in those areas where children are present.
(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 paragraph, "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 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 be
inoperative on and after January 1, 1998, until such 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 of)
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 the 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 subject to subdivision (d) of Section 17 of the
Penal Code and, notwithstanding Section 19.8 of the Penal Code, is
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 of application, and to this end
the provisions of this act are severable.