Bill Text: CA ABX27 | 2015-2016 | Regular Session | Chaptered
Bill Title: Smoking in the workplace.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2016-05-04 - Chaptered by Secretary of State. Chapter 4, Statutes of 2015-16 Second Extraordinary Session. [ABX27 Detail]
Download: California-2015-ABX27-Chaptered.html
BILL NUMBER: ABX2 7 CHAPTERED
BILL TEXT
CHAPTER 4
FILED WITH SECRETARY OF STATE MAY 4, 2016
APPROVED BY GOVERNOR MAY 4, 2016
PASSED THE SENATE MARCH 10, 2016
PASSED THE ASSEMBLY MARCH 3, 2016
AMENDED IN ASSEMBLY MARCH 3, 2016
AMENDED IN ASSEMBLY SEPTEMBER 1, 2015
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, 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.
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.
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.
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 an area not defined as a "place of
employment" pursuant to subdivision (e) is 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 nonsmoking employees are not 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 constitutes
a uniform statewide standard for regulating the smoking of tobacco
products in enclosed places of employment and owner-operated
businesses and supersedes and renders 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) This section does not 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, an area not
defined as a "place of employment" or in which smoking is not
regulated pursuant to subdivision (e), is subject to local regulation
of smoking of tobacco products.
(i) A 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 a 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. 1.5. 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 an area not defined as a "place of
employment" pursuant to subdivision (e) is 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 nonsmoking employees are not 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 constitutes
a uniform statewide standard for regulating the smoking of tobacco
products in enclosed places of employment and owner-operated
businesses and supersedes and renders 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) This section does not prohibit an employer or owner-operator
of an owner-operated business from prohibiting smoking of tobacco
products 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, an area not
defined as a "place of employment" or in which smoking is not
regulated pursuant to subdivision (e), is subject to local regulation
of smoking of tobacco products.
(i) A 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 a 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.
(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.
(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.
SEC. 2. 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.
SEC. 3. 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.
