BILL ANALYSIS �
SB 575
Page 1
Date of Hearing: June 22, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
SB 575 (DeSaulnier) - As Amended: May 31, 2011
SENATE VOTE : 25-14
SUBJECT : Workplace smoking.
SUMMARY : Expands the prohibition of smoking in a place of
employment to include an owner-operated business, and eliminates
most of the specified exemptions that permit smoking in certain
work environments, as specified. Specifically, this bill :
1)Prohibits smoking in an owner-operated business and defines
for this measure, "owner-operated business" to mean a business
having no employees, independent contractors, or volunteers,
as specified.
2)Deletes the current exemptions in law that permits smoking in
certain work environments such as hotel lobbies, bars and
taverns, banquet rooms, warehouse facilities, employee break
rooms, employers with five or fewer employees, and also
deletes the exemption for patient smoking areas in long-term
health care facilities, as defined in the Health and Safety
Code Section 1418.
EXISTING LAW
1)Requires that all employers prohibit the smoking of tobacco
products in any enclosed space at a place of employment,
unless otherwise exempted. Violation of the prohibition
results in fines of $100 for the first violation, $200 for a
second violation within one year, and $500 for a third and
subsequent violations within one year. 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 of the
Division of Occupational Safety and Health (DOSH).
2)Exempts certain places of employment from the prohibition on
smoking tobacco products in an enclosed space, including hotel
or motel lobbies that meet certain size requirements; meeting
and banquet rooms in hotels or motels, retail or wholesale
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tobacco shops, warehouse facilities, break rooms designated
for smoking by an employer, and employers with five or fewer
employees.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author, in 1994, California led the
nation when it passed a smoke free workplace law that helped
protect millions of workers and business patrons from the health
dangers associated with secondhand smoke. The author argues
that, unfortunately, California now lags behind other states'
smoke free workplace laws because of its exemptions which allow
for indoor work environments where people may be exposed to
secondhand smoke.
In 2006, both the U.S. Department of Health and Human Services
(DHH) and the Center for Disease Control (CDC) released a study
that stated there was no safe level of environmental tobacco
smoke, and that it had "immediate adverse effects on the
cardiovascular system" in adults. This study also said that
conventional air cleaning systems cannot remove the smaller
particles or gases associated with environmental tobacco smoke.
The report concluded that establishing smoke-free workplaces was
the only effective way to ensure that secondhand smoke exposure
does not occur in the workplace.
Enforcement of the law has also been an issue of concern. Some
establishments claim to be owner-operated, rather than
employers, by either claiming no employees or by claiming that
their employees are actually share-holders or part owners. This
allows the establishment to allow the smoking of tobacco
products on their premises, creating many of the same issues
found with hookah bars. According to the California Department
of Public Health (CDPH), the ambiguity and contradictions in
state law make enforcement by cities and counties throughout
California difficult especially since investigating these cases
can be time-consuming and challenging because of these seemingly
contradictory interpretations.
The author believes that this bill would even the playing field
by requiring that all businesses abide by the same rules when it
comes to protecting California's workers from secondhand smoke
exposure.
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PRIOR AND RELATED LEGISLATION :
AB 217 (Carter) of 2011, 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.
AB 1467 (DeSaulnier) of 2007, similar to this bill, would have
removed the exemptions that permit smoking in specified bars,
warehouses, hotel lobbies, employee break rooms, and meeting and
banquet rooms, while retaining exemptions for other types of
businesses. In addition, the bill would have prohibited smoking
in specified owner-operated businesses regardless of whether or
not they have employees. The bill was vetoed by Governor
Schwarzenegger.
AB 2067 (Oropeza), Chapter 736, Statutes of 2006, prohibited
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 846 (Vargas), Chapter 342, Statutes of 2003, prohibited
smoking inside public buildings and within 20 feet of a main
exit, entrance, or operable window of a public building.
AB 3037 (Cannella), Chapter 989, Statutes of 1996, extended
exemptions to the prohibition of smoking in bars, taverns, and
gaming clubs 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 (Friedman), Chapter 310, Statutes of 1994, prohibited
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 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
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insignificantly harmful effects to exposed persons.
ARGUMENTS IN SUPPORT :
According to proponents, there is simply no safe level of
exposure to secondhand smoke. Proponents contend that almost 14
percent of indoor workers reported being exposed to secondhand
smoke at work in the previous two weeks in the California
Tobacco Survey. Proponents argue that this workplace exposure
is not spread equitably across all workers as low-income
workers, young adults, and Latinos are disproportionately
exposed. According to proponents, employees who work in the
settings currently exempted deserve as much protection as the
rest of us. This bill proposes to eliminate some of the current
exemptions to strengthen the state's smoke free workplace law
and meet the Centers for Disease Control's 100 percent smoke
free designation level which will help protect employees from
secondhand smoke. According to proponents, twenty-four other
states have already received this distinction and they believe
it is time that California, the state that paved the way for
smoke free work environments, joins them.
ARGUMENTS IN OPPOSITION :
The California Association of Health Facilities (CAHF) opposes
this bill contending that it prohibits a resident from smoking
in a long term care facility. CAHF argues that smoking is an
activity that many residents enjoy and one that can help
maintain a sense of stability while residents transition to life
in a long-term health care facility. According to CAHF, federal
law does not permit facilities or the state to deter and/or
undermine a resident's ability to make autonomous decisions.
CAHF argues that residents have a right to self-determination,
regardless of his or her residence in a long-term health care
facility.
According to CAHF, most facilities have designated smoking areas
that are outside (on a patio) which help ensure that employees
and residents are not exposed to any substantial amount of
secondhand smoke. However, CAHF argues that there may be
certain weather conditions (extreme heat or extreme cold) that
cause facilities to try to accommodate the needs of smoking
residents indoors, rather than risking their health by making
them go outside. For this reason CAHF opposes the bill unless
it is amended to restore the exemption to the definition of
SB 575
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"place of employment" for long-term care facilities.
REGISTERED SUPPORT / OPPOSITION :
Support
American Cancer Society (co-sponsor)
American Heart Association (co-sponsor)
American Lung Association (co-sponsor)
Health Officers Association of California (co-sponsor)
Alameda County Board of Supervisors
Americans for Nonsmokers' Rights
Asthma Coalition of Los Angeles County
Breathe California
California Conference Board of Amalgamated Transit Union
California Conference of Machinists
California Labor Federation, AFL-CIO
California Medical Association
California Official Court Reporters Association
California Pan-Ethnic Health Network
California Teamsters Public Affairs Council
Coalition of Lavender-Americans on Smoking and Health
County Health Executives Association of California
County of Los Angeles Board of Supervisors
Engineers and Scientists of California
Humboldt County Department of Health and Human Services
International Longshore and Warehouse Union
Kaiser Permanente
Los Angeles County Board of Supervisors
Mayor Stephen Cassidy, City of San Leandro
National Latino Tobacco Control Network
National Lawyers Guild Labor and Employment Committee
Professional and Technical Engineers, Local 21
Public Health Law & Policy
San Francisco Tobacco Free Coalition
San Mateo County Board of Supervisors
Santa Clara County Board of Supervisors
Tobacco Education and Research Oversight Committee
Tobacco Free Coalition of Kern County
UNITE HERE!
United Food and Commercial Workers - Western States Conference
Utility Workers Union of America, Local 132
Valley Community Clinic
Opposition
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California Association of Health Facilities (unless amended)
Cigar Association of America
San Francisco Small Business Commission
Opposition withdrawn
International Premium Cigar & Pipe Retailers Association
Southern California Cigar Alliance
Analysis Prepared by : Lorie Erickson / L. & E. / (916)
319-2091