HomeMy WebLinkAboutNB 1 REG OF SMOKING 05-20-85 NEW BUsI~NEss
AGENDA >
5-20-85
Inter- Corn h
DATE May 10, 1985 ~~~
TO:
FROM:
SUBJECT:
Honorable Mayor and City Council
Director of Community and Administrative Services
¥,.~'
PROHIBITION/REGULATION OF SMOKING
RECO~IE#DATION:
Pleasure of the City Council. Should Council request the Attorney to draft an
Ordinance, staff needs direction regarding which restrictions or prohibitions to
include. These are detailed in the report.
S Ut,~,IARY:
This report describes State Legislation already in effect regarding the
prohibition or regulation of smoking; it lists by functional restriction~
different methods which local Ordinances may exceed state law; and it summarizes
Ordinances which have been enacted.
By far, regulation of smoking in the workplace has been the most controversial
aspect of local Ordinances. As Council can see from the report, there are several
ways to accomplish this:
The least restrictive Ordinances simply prohibit smoking in public
workplaces.
More restrictive Ordinances prohibit or regulate smoking in public and private
workplaces. In these Ordinances employers are required to make a "good faith
effort" to accommodate both parties. If the employer can demonstrate such an
effort, then a dissatisfied employee has no recourse other than to tolerate
what he or she finds unacceptable about the policy or to find another job.
e
In the most restrictive Ordinances, a single employee who is unhappy with the
policy developed by the employer can invoke the Ordinance to prohibit smoking
in the office entirely.
Regarding enforcement considerations, most cities who have enacted Ordinances rely
on public-information campaigns and self-enforcement. Most cities report they
have had no problems with enforcement once the Ordinance is passed; however, if
such an ordinance is passed, someone from the city is obligated to respond to
complaints.
In discussing potential Ordinances with Police Chief Thayer, he stated that his
personnel would rely on self enforcement by the involved parties. Chief Thayer
said that if an Ordinance is passed, of course his personnel would respond, but he
would hope they would not have to. As Council is aware, the patrol function could
suffer should an inordinate number of hours be directed towards this problem. The
staff does not anticipate this happening, but it must be noted as a potential
pitfall.
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'Page
The California League of Cities was most helpful in researching this report, and
staff would like to acknowledge the League; an article in Western City was also
most helpful.
SLIMY OF CURRENT STATE LEGISLATION:
The California Legislature enacted the California Indoor Clean Air Act in 1976;
the Act was amended once in 1978. This legislation regulates smoking as follows:
1. Public Meetings in Publicly-Owned Buildings: Where public business is
being conducted which involves the general public as either participants
or observers, at least 50 percent of the meeting area must be designated
a non-smoking area.
2. Health Facilities and Clinics. Every reasonable effort must be made to
assign patients to hospital rooms according to the patient's non-smoking
or smoking preference. In cafeterias where occupied capacity is fifty or
more persons, at least 20 percent of the area must be designated
non-smoking.
3. Performances in Publicly-Owned Buildings. With the exception of lobbies
and 'indoor sporting events, smoking is prohibited. This includes any
motion picture, stage, drama, music recital or any other performance made
available to the general public in a publicly-owned building.
4. Restaurants in Publicly-Owned Buildings. In publicly-owned buildings
only, where occupied capacity is fifty or more persons, at least 20
percent of the area must be designated non-smoking.
5. Retail Fo~ Production and Marketing Establtsl..ents. Except in employee
lounges or other areas not open to the general public, smoking is
prohibited.
The California Indoor Clean Air Act is non-preemptive in nature--that is, the
legislature expressly permits a local governing body to provide additional
supplemental regulation, which could include a complete ban of smoking in a wide
variety of areas.
TWO STATE REFERENDUMS HAVE FAILED TO PASS:
Prior to the current movement in many cities to develop such supplemental
regulation, two attempts have been made via the state's referendum process to add
to existing state law. One measure was on the 1978 general election ballot, and
the other, commonly known as the "Non-Smokers Bill of Eights," was placed on the
1980 ballot. Both initiatives were rejected by the voters. Since that time,
those supporting further smoking restrictions have turned to local officials.
SUHI~ARY OF LOCAL ORDINANCES BY RESTRICTIONS/REGULATIONS:
Based on a review of a number of Ordinances, the primary places smoking is
regulated and how such regulation has been applied are outlined below:
Page 3
1. Public Assembl~ Rooms/Areas. Limited Ordinances usually go beyond state
law by prohibiting smoking altogether in such meetings, whether or not the
meeting is held in a city-owned building (as long as it is being conducted
by a city-elected or appointed person or body). The more extensive
Ordinances further prohibit smoking in any waiting room, lobby, hallway,
or public counter area under the control of the city.
2. Health Facilities/Clinics. Limited Ordinances go beyond state law by
including hospital waiting rooms and public hallways. More extensive
Ordinances include those restrictions and restrict or prohibit smoking
entirely in the public area of doctor and dental offices.
3. Grocer~ Stores. State law already prohibits smoking in grocery stores.
Many cities reinforce this restriction by having it written into their'
Ordinances.
4. Auditoriums/Theatres. This category is usually defined as "any building
not open to they sky which is primarily used for exhibiting any motion
picture, stage drama, musical recital or other similar performances."
State law currently prohibits smoking at such events only if they are
held in publicly-owned buildings. Most city ordinances do not go beyond
this level of restriction, leaving such restrictions to the discretion of
either the private operators of the facilities or the local Fire
Department. Those that do go beyond state law prohibit smoking at all
such events, whether held in publicly or privately owned buildings and
require non-smoking areas in the lobbies.
5. Elevators. Smoking in elevators is permitted by state law. Ordinances
that go beyond state law prohibit smoking in publicly-owned elevators, or
in both publicly or privately owned elevators open to use by the general
public.
6. Musepms~ Libraries~ Galleries. State law does not prohibit smoking in
these facilities, although the operators of such facilities frequently
prohibit smoking in areas open to the general public as a matter of
policy.
7. Restaurants. State law requires 20 percent set aside for non-smokers in
restaurants operating in publicly-owned buildings with an occupied
capacity of fifty or more persons. Many Ordinances do not further
regulate restaurants. Those Ordinances which do go further regulate
restaurants located in private buildings and vary widely in the specifics
of the restrictions. The amount of space that must be designated
non-smoking ranges from a "reasonable amount" to 30 percent. The
occupied capacity threshold which triggers the need for a non-smoking
area ranges from 20 to 100 persons. Some programs are mandatory; others
are voluntary. Drinking establishments are usually exempt.
8. Retail Stores/Service Establishments. Several cities restrict smoking in
retail stores and/or service establishments. A wide range of retail
stores is affected including department stores, pharmacies, and
speciality shops (tobacco stores are always exempt). Service
establishments include banks, savings and loans, and sales and service
offices which are generally open to the public.
Page 4
Places of E~lo)~ent. Place of Employment is ~pically defined as "any
enclosed area under the control of a public or private employer which
employees normally frequent during the course of employment, including
work areas, lounges, conference rooms, and cafeterias." This has proven
to be the most controversial area of the smoking restriction issue. While
some cities have adopted policies that regulate smoking in city offices,
only a few have adopted Ordinances that extended to the private workplace.
Most ordinances restricting smoking in the workplace require the employer
to develop a smoking policy that accommodates the needs of both the smoker
and the non-smoker. Controversy comes into play in determining how far
the rights of each party extend. In some cities for example, employers
are required to make a "good faith" or a "reasonable" effort to
accommodate both parties. The burden of proof in this regard rests with
the employer. If the employer can demonstrate such an effort, then a
dissatisfied employee has no recourse other than to tolerate what the
employee finds unacceptable about the policy or to find another job. In
the most restrictive cities, a single employee who is unhappy with the
policy developed by the employer can invoke the Ordinance to prohibit
smoking in the office entirely.
REVIEW OF ORDINA&ICES CIl~ BY CIl~:
1. NIMLO Model O~tnance. The NIMLO Model Ordinance prohibits smoking in
retail stores (with some exceptions), elevators, public theatres,
projection booths, public conveyances, and dance floors. It does not deal
with smoking in the workplace or public or private buildings.
Ctt~ of Atascmdero. Atascadero regulates and prohibits smoking in certain
public places, but stops short of regulating smoking in the workplace.
Also they require a non-smoking area in restaurants.
Cit~ of Carlsbad. Carlsbad prohibits smoking in certain public areas.
Carlsbad prohibits smoking in a public place of employment, except in
designated smoking areas. The ordinance goes on further to say that
smoking areas may be designated in public places and places of employment
by proprietors or other persons in charge except in retail stores, retail
service establishments, food markets, public conveyances, theatres,
auditoriums, public assembly meeting rooms, restrooms, elevators,
pharmacies, libraries, museums, et cetera.
Cit7 o~ Los Angeles. In addition to the normal provision of theatres,
publi6'meeting and assembly rooms, health care facilities and retail food
establishments, Los Angeles regulates smoking in public and private places
of employment. The Ordinance requires that it shall be the responsibility
of employers to provide smoke-free work areas for non-smokers to the
maximum extent possible, but employers are not required to incur any
expense to make structural or other physical modifications in providing
these areas. An employer who makes reasonable efforts to develop and
promulgate a policy regarding smoking and non-smoking in the workplace
shall be deemed to be in compliance.
Cit7 of San Diego. San Diego prohibits smoking in public places and
places of employment except in designated smoking areas. Smoking is
prohibited in retail stores, retail service establishments, food markets,
public conveyances, theatres, auditoriums, public assembly rooms, meeting
rooms, restrooms, elevators, pharmacies, libraries, and museums.
Regarding the workplace, San Diego's ordinance is similar to Los Angeles'.
Page 5
6. The City of San Francisco. The City of San Francisco, requires private
employers to adopt and maintain a written policy about smoking in the
office workplace. Employers must attempt to accommodate the preferences
of smoking and non-smoking employees. If a satisfactory accommodation
can not be acheived, the preferences of non-smoking employees shall
prevail and smoking shall be prohibited. Read literally, the ordinance
may grant a non-smoking employee in a workplace the right to veto smoking
in that workplace, regardless of whether or not ventilation prevents
smoke from being detected at the non-smokers work station. A more
reasonable interpretation would allow a non-smoker to insist that smoking
be prohibited in a workplace only when the smoking affects the
non-smoker.
7. City of Pasadena. The City of Pasadena prohibits smoking in elevators,
public areas of health care facilities in hospitals, public meeting
rooms, theatres and auditoriums, public restrooms, indoor service lines,
eating establishments (with some exemptions for outdoor areas and set
aside spaces for non-smokers). In addition, the Pasadena ordinance also
requlates smoking in the office workplace. In any dispute arising under
the smoking policy, the right of the non-smoker shall be given
precedence.
8. City of Laguna Beach. Laguna Beach prohibits smoking in elevators,
hospitals and health care facilities, public meeting rooms, theatres and
auditoriums, public restrooms, indoor service lines, and eating
establishments (with some exceptions). Laguna Beach regulates smoking in
the office workplace by prohibiting smoking in employer conference and
meeting rooms, classrooms, auditoriums, restrooms, medical facilities,
hallways and elevators. Contiguous no smoking areas must be maintained
in cafeterias, lunchrooms and employee lounges of at least half the
seating capacity. And further, any employee in the office workplace
shall be given the right to designate his or her immediate work area as a
non-smoking area and to post it with appropriate signs. Laguna Beach has
one of the more strict ordinances; in any dispute arising under the
smoking policy, the rights of the non-smoker shall be given precedence.
Staff requires direction regarding Council's desire for any type of ordinance for
Tustin. Should Council request the Attorney's office to draft such an ordinance,
staff needs to know which provisions should be included.
Royleen A. White, Director
Community and Administrative Services
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