BILL ANALYSIS �
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 217
A
AUTHOR: Carter
B
AMENDED: April 7, 2011
HEARING DATE: June 15, 2011
2
REFERRAL: Labor and Industrial Relations
1
CONSULTANT:
7
Trueworthy
SUBJECT
Workplace smoking prohibition: long-term health care
facilities
SUMMARY
Restricts smoking in long-term health care facilities by
only allowing smoking in a designated patient smoking area
that is outdoors, in an area that reasonably prevents smoke
from entering the facility or patient rooms, and that is
not located in a patient's room.
CHANGES TO EXISTING LAW
Existing law:
Prohibits an employer from knowingly or intentionally
permitting the smoking of tobacco products in an enclosed
space at a place of employment.
Exempts the following places of employment from the
prohibition on smoking tobacco products in an enclosed
space:
� Hotel or motel lobbies that meet certain size
requirements;
Continued---
STAFF ANALYSIS OF ASSEMBLY BILL 217 (Carter) Page
2
� Meeting and banquet rooms in hotels or motels;
� Retail or wholesale tobacco shops and private
smokers' lounges, as defined;
� Warehouse facilities, as defined;
� Gaming clubs, bars and taverns;
� Patient smoking areas in long-term health care
facilities;
� Break rooms designated for smoking by an employer;
and
� Employers with five or fewer employees, subject to
specified requirements.
Establishes a $100 fine for the first violation, $200 fine
for the second violation, and a $500 fine for a third and
subsequent violation of the above provisions. Enforcement
of the smoking prohibition is carried out by local law
enforcement agencies, unless an employer has been found
guilty of three or more violations which will require an
investigation by the Division of Occupational Safety and
Health (DOSH).
Defines a long term care health facility to be one of the
following:
1) Skilled nursing facility;
2) Intermediate care facility;
3) Intermediate care facility/developmentally disabled;
4) Intermediate care facility/developmentally disabled
habilitative;
5) Intermediate care facility/developmentally
disabled-nursing;
6) Congregate living health facility;
7) Nursing facility;
8) Intermediate care facility/developmentally
disabled-continuous nursing; or a
9) Pediatric day health and respite care facility
This bill:
Narrows an exemption in current law that authorizes smoking
in "patient smoking areas" in long-term health care
facilities to only have the exemption apply where all of
the following conditions are met:
1) The patient smoking area is not located in a
patient's room;
2) The patient smoking area is located outdoors, in a
STAFF ANALYSIS OF ASSEMBLY BILL 217 (Carter) Page
3
courtyard or patio, or other outdoor space that can be
monitored by facility staff; and,
3) The patient smoking area is located in an area that
reasonably prevents smoke from entering the facility
or patient rooms.
Allows a long-term health care facility to continue or
implement a smoke-free policy inside and outside the
facility.
FISCAL IMPACT
According to the Assembly Appropriations Committee
analysis, this bill imposes a non-state reimbursable
mandated local program by expanding the definition of an
infraction. In addition, the analysis notes the bill will
result in minor enforcement costs to DOSH.
BACKGROUND AND DISCUSSION
Current law generally prohibits smoking in places of
employment. However, the law contains a number of
exemptions, including "patient smoking areas" in long-term
health care facilities. According to the author, AB 217
will prohibit smoking inside long-term health care
facilities and eliminate dangerous secondhand tobacco smoke
exposure to protect non-smoking facility workers,
non-facility workers and patients in the facility. The
author states that the bill will help eliminate the unique
fire risk caused by smoking in proximity to oxygen tanks,
flammable chemicals or other combustible items found in
long-term health care facilities.
According to the 2010 United States Department of Health
and Human Services, Office of the Surgeon General report,
there is no safe level of exposure to tobacco smoke, and
any exposure is harmful. The author further states that
the past twenty-nine Surgeon General's executive reports
have established a long list of health consequences to
tobacco smoke exposure, and have noted that tobacco use
imposes enormous public health and financial cost to this
nation.
STAFF ANALYSIS OF ASSEMBLY BILL 217 (Carter) Page
4
The author contends that this bill will save our state
millions, if not billions, of dollars by taking
"appropriate remedial actions" in eliminating exposure to
secondhand smoke, save lives, and prevent fires by
prohibiting lit tobacco products inside long-term health
care facilities that contain oxygen tanks, flammable
chemicals and/or other combustible items.
Related bills
SB 575 (DeSaulnier) would eliminate most of the exemptions
in the workplace smoking prohibition, including the
exemption for patient smoking areas in long-term health
care facilities. SB 575 is pending before the Assembly.
Prior legislation
AB 1467 (DeSaulnier) of 2007, would have eliminated most of
the exemptions in the workplace smoking prohibition, but
did not propose to eliminate the exemption for patient
smoking areas in long-term health care facilities. AB 1467
was vetoed by Governor Schwarzenegger.
AB 2067 (Oropeza), Chapter 736, Statutes of 2006, prohibits
smoking in covered parking lots, and adds to the definition
of "enclosed spaces" lobbies, lounges, waiting areas,
elevators, stairwells and restrooms that are a structural
part of the building, thereby prohibiting smoking in those
areas.
AB 3037 (Cannella), Chapter 989, Statutes of 1996, extended
the deadline by which bars, taverns and gaming clubs must
be smoke free under the provisions of AB 13 (Friedman) from
January 1, 1997, to January 1, 1998. Smoking in bars,
taverns, and gaming clubs could only continue beyond that
date if regulations were adopted by either the Occupational
Safety and Health Standards Board or the federal
Environmental Protection Agency on an exposure level of
environmental tobacco smoke that carried insignificantly
harmful effects to exposed persons.
AB 13 (T. Friedman), Chapter 310, Statutes of 1994,
prohibits employers from knowingly or intentionally
permitting, or any person from engaging in, the smoking of
tobacco products in enclosed places of employment, with
specific exemptions. AB 13 allowed for the smoking of
STAFF ANALYSIS OF ASSEMBLY BILL 217 (Carter) Page
5
tobacco products in bars, taverns, and gaming clubs until
January 1, 1997, if regulations were adopted by either the
Occupational Safety and Health Standards Board or the
federal Environmental Protection Agency on an exposure
level of environmental tobacco smoke that carried
insignificantly harmful effects to exposed persons.
Arguments in support
Breathe California writes, tobacco is the single greatest
cause of disease and premature death in America today, and
according to the Surgeon General is responsible for more
than 435,000 deaths annually. Supporters contend
secondhand smoke is a known human carcinogen, and a
smoke-free environment helps create a safer, healthier
workplace and living environment. The California Chapter
of the American College of Emergency Physicians writes AB
210 protects non-smoking workers and patients who are
chronically or terminally ill, and who work or reside
inside long-term health care facilities by removing
exposure to secondhand tobacco smoke. The California
Medical Association writes that this measure offers
important protections for those residents and workers who
do not wish to be exposed to harmful smoke.
Arguments in opposition
The California Association of Health Facilities (CAHF) is
opposed to AB 217 unless it is amended expressing concern
that it would place skilled nursing facilities in the
position of violating residents' rights during certain
weather conditions such as extreme heat or cold. CAHF
states that, "smoking can help maintain a sense of
stability while residents transition to life in a long-term
health care facility." CAHF writes that smoking is also a
source of comfort in many residents' lives and federal
regulations recognize smoking as personal comfort items.
CAHF writes that, under federal law a resident has the
right of self-determination, regardless of his or her
residence in a long-term care facility. A resident's
autonomy and self-determination are entitled to respect.
CAHF further argues that federal law does not permit
facilities or the state from deterring and/or undermining
residents' ability to make autonomous decisions.
CAHF is requesting the measure be amended to allow an
STAFF ANALYSIS OF ASSEMBLY BILL 217 (Carter) Page
6
indoor smoking area to be established temporarily, during
inclement weather, to accommodate the needs of smoking
residents indoors rather than risking their health by
making them use an outdoor area during inclement weather
conditions.
PRIOR ACTIONS
Assembly Labor and Employment:5- 1
Assembly Appropriations: 12- 5
Assembly Floor: 50- 26
POSITIONS
Support: Breathe California
California Chapter of the American College of
Emergency Physicians
California Medical Association
Southland Care Center
Two individuals
Oppose:California Association of Health Facilities (unless
amended)
-- END --