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OfI1C3, OF ~ CITY' ATTORNEY C/T'Y' NIA~LL CAiT LOS ANGIELES. CA'LIFORNIJI' 90012 ' IR A RZIN E R CITYATTiDRNCY. REPO'RT FiE :. REPORT NO,. Fki ? 3 4 9 DEVEZ:OPMENT' OF A COMPREHENSIVE ORDINANCE REGULATING SMOK'I'NG IN' ENCLOSED, PUBLIC PLACES AND PLACES OF EMPLOYMENT The Honorable, Public Health, Human Resources and Senior C'iti!zens Committee of the Council of the City of Los Angeles Room 238, City Hall Los Angeles, CA 9001,2. (Council File No. 8'3-12I07 not transmitted) Honorable Members: By communication dated October 24, 1983, this offilce was requested', to "submit a report by December 7, 1983, outlining for the members of' the Committee the options available that would accomplish the purpose~of forbidding, to the maximuae extent feasible, smoking in enclosed public places and places of employment." Pursuant to your request, this office has reviewed ordinances from Sa'n Diego, San, Francisco, Palo A1to, Simi v'aliley, Carmel, Sacramento, Carlsbad, San Raphael, and Uki'ah, statutes fro:n, Utah, Minnesota, and Nebraska, and California's 1980 Proposition 101Initiative. Based on this review, we have outlined the basic elements of a comprehensive ordinance regulating smokino in enclosed public places and places of e'mployment. We have also, prepared a series o'f options reliating to the formulation of such a -measure. The subject areas to be discussed herein include t}'r.e. C U-i

The Honorable, Public Health, Human Resources and Senior Citizens Committee of the Council of the City of Los Angeles Page 2 following: Places Where Smoking May Be Regulated'., Nature and Degree of Regulation, Administration, Enforcement, and Penalties. This report wi~ll refer to the ordinances, statutes, and rules and regulations of other jlurilsdictions as appropriate in order to provide examples of the option's available to tfiis. Honorable Committee. I PLACES WHERE' SMOKING MAY BE REGULATED A. Public Places. The measures reviewed either define public places very broadly, specifically enumerate which public places are subject to regulation, or both. i C For example, San Diego's Orrinance No. 15865 defines a public place as "any enclosed area to which the public'i's invited or in which the public is per'mitted', included, but not limited to, retail stor'es, retail service establishments, retail food production and marketing establishments, restaurants, theatres, waiting rooms, receptiloni areals, educational facilities, health facilities and'.pur3ic transportation facillities." On the other hand, Palo A1to's Ordinance ho. 3476 does not contain a definition of the term "public place," instead iltt identifies the places which are subject to its provisions. This Ordinance expressly prohibi~ts smoking in public areas of hospitals, and in public meeting rooms. Other examples of •public places regulate& include gyms, galleries, (;San Raphael's Ordinance P7o!. 1344) arenas, commercial kitchens (Uta~a House Bill, 25,1976 Utah~Indoor Clean Ai~r Aet)~, libraries, (Cairmel'sOrdinarnceNo. 76-1),publi~c hallways of private or public health care faci'liity, (,Sac'ramento's Ordinance .No. 316'7)' public restrooms, law offices, pharmacies, banks, savings and loans, insurance offices, hotels and motel!s (Ukiah~.'s Ordinanc'e No. 760)'. Most ordinances exclude fromi coverage "private enclosedi offices occupied exclusively by smokers even tt+ough such offices may be visited by nonsmokers." I U-2 I

The Honorable, Public Health, Human Resources and Senior Citizens Coremittee of the Council of the City of Los Angeles Page 3 B. Places of Employment. The terw "place of employment" is either specifically defined in the measures reviewed'or incl'uded'within the definition of a "public place". For, example, both the San Diego ordinance and the 1980 Proposition 10 I~nitiati've speci~fically'define a place of employment as "any enclosed'area under the control of a public or private employer which employees normal'ly frequent during, the course of employment, including, but not limitedlto workk areas, employee lounges, conference rooms.and employee cafeterias. A private resid'ence is not a place of employment." The Utah Indoor Clear Air Act includes "place of employment" in its defi'nilti'lon of "public place," i. e. "any enclosed i'rndoor area used by the general public or serving as a place of work . . . ." Palo Alto uses the term "office work p1ace" instead of "place of employment". The term'"office work place" is defined to: mean "any enclosed area of a structure or a portion thereoff intendedifor occupancy by business entities which will provide primarily clerical, professional or business services of'the business entity or which will provi'de pri~marily clerical, professional or business services to other business entities or to tthe public, at that location. . ." It should be noted that this definition would exclude factories. San Francisco's Ordinance No. 2918-83 is similar to the. Palo Alto ordinance in this regard.. II NATL1T'E~ AND DEGREE 0'F" REGULATION Within the measures reviewed there are several mearns': utilized to regvlate scrrokiing in, public places and/or places off employment. They, iinclude (1) outriCht prohibition, except in designated areas; (2) designation of the areas in which smokino is pro?oibited; (3) sign posting; and'. ('4) varilous combinations of' the above. r i I U-1

The Honorable, Public Health, Human Resources . and Senior Citizens Committee of'the Council of the City of Los Angeles Page 4 A. Publiic Places. The Sani Diego! ordinance is an example of the combination approach. The ordinance ha& a general prohibition section that states "no person shall smoke in a public pla~ce or pla~ce of employment except in, designated smoking areas." Itt then, identifies the places in, which smoking areas may and may not be established. It also requires the posting of signs designating,smoking, or non-smoking areas. These signs mus.t be "clearly, sufficiently, and conspicuously posted in every room, building or, other place covered by this article." Other sign posting requirements can be found in the rules and regulations adopted by the Minnesota State Commissioner of Health to implement the.provisions of the Minnesota Clean Indoor Air Act (Minn!. Stat S§1441.4I11 - 144.417). These requirements are very specific and relate to~ sign location, size of pri'ntingi, andl wordingi.. B. Places of Employment. The outright prohibition, des1g,nation of smoking areas, and sign requiremenit provisions in the San Diego ordinance relate both to public places~ andi places of' employment. On the other hand', the Minnesota rules and regulations have a different sign! requirement for pliaces~ off work not customarily frequented by the general publi1c. i I C Some of'the ordinances reviewe&, like the San F+aphael measure, establish, thresholds for regulation. For exareple, San, Raphael prohibits sanokingi within restaurants serving food to the general public. However, this prohi!bitioni dbes not apply within such establishments maintaining a contiguous "no smoking"'area of not less than 20% ofl the seating capacity and of'the floor space in which, customers are served or where the occupied'capacity of the restaurant is less than 20'persons. Palo Alto's ordinance contai'ns similar provi'silons. The San Francisco, ordinance deals exclusively with the regulation of smoking in the office work place. This ordinance requires each employer who operates an office in the city to adopt, implement andl maintain a, wri,tten smoking policy with a number of minimum requireme,nts. First, if a nonsmoking employee objects to the employer about smoking in the work. U "4.

.. ~ The Honorable, Public Health, Human Resources and Senior Citizens Committee of the Council Qf the Ci ty of Los AngeSes Page 5 place, the employer must attempt to reach a reasonable accommodation between the preferences of nonsmoking and, smoking employees using already available means of ventilation. Second, if'the employer is not able to reach an accommodation between smokers and nonsmokers, th!e preferences of the nonsmoking employees must prevail. Third, the area in which smoking isprohibited must be clearly marked'lwith signs. Palo Alto also regulates smoking in the work environment. Its ordinance requires the employer to adopt, implement and maintain a written smokingi policy. Such a policy must prohibit smoking in employer conference and meeting rooms, classrooms, aud'itoriums, restrooms, medical facilities, hallways and elevators. Further, there must be "no siroking areas" in cafeterias, lunchrooms and employee lounges. Finaily,, employees may designate their immediate areas: "nonsmokil ng" areas and post it with appropri'ate signs. As in the San Francisco ordinance, in any dispute arising under the smoking policy, the rights of the nonsmoker must be given precedence. Admi'niistration Many of the measures considered delegate responsibility for administering the law to a specific Department or public official. Under the San Diego ordinance, when facilities which are owned, operated or leased'by the City of San Diego are involved, the City Managier has the responsibility for obtaining compliance with its provisi'on. The ordinance also requires the City Manager, through an off'ice of Citizens Assistance and Information, to "engage in a continuing program to ilnformi ancl clarify the purposes~of the (ordinanceJl to citizens affected by it and to guidle owners, operators and'managers in their compliance." The Minnesota statute places the burde.n on, th~e persor in charge of a public place to prevent smoking in the public place by.-pa) posting appropriate signs, (b) arranging seating to provide a smoke free area, and (c) asking smokers to ref'ralin from smoking upon request of someone suffering discomfort from the smoke. 1'he sttatute also mandates the State Commissi'oner of Health to adopt rules and regulations necessary and reasonahle to implement the provisions of the statute. N' ~ N ~ C~7 ~ ~ wPk f

The Honorable, Public Health, Human Resources and Senior Citizens Committee of the Council of'the City of Los Angeles Page 6 As discussed'in the previous section, both the San Francisco and Palo Alto ordinances require employers to adopt implement and monitor writteninonsmoking policies. Some measures give identified officials the authority to grant exemptions or modification from their provisions. For example, the San Diego ordinance provi'des that "'any owner or manager of a business or other establishment subject to this article may apply to the City Council for an exemption or modification of the provisions of this article due to unique or unusual circumstances or conditions." San Raphae3,has a provision that states that "smoking shall be permitted in any room in which it is otherwise prohibited herein if the owmer, operator, manager or other persons having control of such room files with the City Manager a written statement from a mechancial engineer registered in the State of California, certifying that such, room is ventilatedi with a mechanical ventilation system, ...." The Minnesota statute sl'lows the Commissioner of Health to waive the provisions of its sections if the. Commissioner determines there are compelling reasons to do so and waiver would not significant~lyaffect the health aind~ comfort of nonsmokers. The Utah, statute allows~the local board of health to waive the provisions of the act if it d'etermi'ness there are compelling reasons to do so. IV ENFORCEMENT The measures considered generally assign!enforcement responsibilities to either the respensible person in charge of the public place or a public off'icial. The San Diego ordinance requires owners, operators, managers and employees to orally inform persons violating, the ordinance of the provisions thereof. The duty to inform such violator arises when they become aware of such violation. Sirni Valley's Ordinance No. 229 C.O./197'5 allows any owner, operator or manager of the regulated establishment to refuse service to any person who smokes in a poGted "no smoking" area, and also states "no person shall! remaini on any U ~-6

c The Hbnorable, Public Health, Hbman Pesources and Senior Citizens Committee of the Coun~cil! of' the City of Los Angeles Paige 7' private property or business premises after being notified by the owner or lessee or other person in charge to leave for violating, the provisions of thiis ordinance." On the other hand, the Minnesota statute allows the State Commissioner of Health, a local board'of health, or any party affected, to insti'tute an action in any court to enjoiin certain violations of'its statute. The Utah statute also allows local boards: health to institute injunctive actions. The 1980 Proposition 10 Initiative required the sign posting provisions to be enforced' by the State Department of Health Services, local health departments and local law enforcement departments. The Sani Francisco ordinance requires the Director of Public Health tolenforce its provisions. The Ukiah Ordinance (No. 750J utilizes both approaches. It makes it unlawful for any person who owns, manages or controls a regulated public place to! fail to properly post signs. It also allows any citizen who wishes to register a complaint to initiate such enforcement by filing a complaint at City Hall. The ordinance specifically states that "enforcement shall be impl'ementedi by the City Manager or through a City staff person designated by hir.!1. Suchiperson shall' have discretion to issue persuasive letters or infraction citations based upon reasonable cause in & manner most suitable to the.particular incid'ent." V PENALTTES' Violations of the various provi'lsions of an ordlinance can be made either an infraction:, a misdemeanor, or a civil offense subject to injuinction and/or civill penalties. The San Diego ordinance provides that any person who violates various poztions of its provisions is guilty of an infra~cti~on punishable by' a fine of not less than $10.00 nor more than, $1010.00. Proposition 1'0 made its violation an infraction with a fine of $15.00 per violation. U-7

The ftnorable, Publi~c Health, Human Resources and Senior' Citizens Committee of the Council of the City of Los Angeles Page 8' c The~ Ci ty of Carlsbad (Ordinance No. 5065) provides for an escaliating penalty as follows, "any person, corporation or association who violates any of the provisions of this chapter is guilty of' an infraction, except for the fourth or each additional violation of a provision within, a year which i& a m:isdemeanor. "' The Minnesota statute makes it a milsdemeanor for a person to smoke in nonsmoking, areas, and allows the State Commissioner of Health, local board of'health or any affected party to institute injunctive actions to compel the proprietor or other person in charge of a public place to make reasonable eflforts to prevent smoking. The San Francisco ordinance states "any employer who violates Section 1003 (adapt, implement and maintain a written smoke policy . . . ) may be liable for a.civil penalty, not to exceed $500.00 which penalty shall be assessed and recovered imi a civil action, brought in the name of' the people of the City and County of San Francisco in: any court of competent jurisdiction." The Utah statute utilizes all three approaches. Ilt makes it an infraction for any person to smoke in a public place or at a, public meeting except in designated smoking areas. It makes it a misd~emeanor for the person in charge to fail to either designate appropriate smoking areas and post appropriate sig,ns, or to, arrange seating and'ventilation. This statute further allows local' boards of health to institute injunctive actions for repeated, violations of the sections that gave rise to a misdemeanor. VI. CP'TIC2hS CHECK LIST Before presenting a series of options relative to the formulation of the ordinanee, a review of'the current provisions of the L.A M.C. that regulate smoking is provided. L.A.M.C. Sections 41.50! through 4111.52 prohibit smoking in, the City of Los Angeles in (1) buses, (2) elevators, (3) enclosed facilities open to the general public, for the primary purpose of' exhibiting any motion picture, stage prodluction,. ID-8~

The Honorable, Public Health, Hiuman Resources and Senior Citizens Committee of the Council of the City of Los Angeles Page 99 musical reci~tal, or similiar performance exclusive of'sports events, other than, in an, area whilch~serves as a lobby, (4) any room,, chamber, place of' meeting or public assembly wherein public business is being conducted and which is open to meirbers of the general public either as participants or as spectators, (5) those areas wi~thin the buildings or structures of any health care facility which are open to vi'siltors-to the preznises except that in such areas there may be enclosed, areas designated and set aside in each floor thereof where the prohibitions of this section shall not apply, and (6) any retail marketing establishments including grocery stores and super markets except those a'reas of such establ'ishments set aside for the serving of food and' drink, restrooms, andi offices and areas thereof not open to the public. The options regarding places where smoking may be ' regulated referred to below, are in: addition to, the places where smoking is currently regulated under the L.A.M.C. VII. OP'T'IONS~REGARDING PLACES WHERE SriOKING MAY BE REGU'L.ATED A. Public places. 1. Should "public place" be defined broadly, i.e., " any enclosed area to which the public is invitedr or in1which the publir is permitted." 2. Should there be a specific enumeration of the public places.regulated? For ex3mple,, a,. Retail Stores. b. Service Establi'shme.rots (banks, savingss and loans, beauty sialons). c. Restaurants. d. Theaters (includ'.ing lobbies).. e. Office Waiting,Rooms or Reception Areas. f. Arcades. g. Sch~ools. h. Health Facilities hospitals, dentists offices, doctors offices, sanitariums,, convalescent hiospitals)'. i. Gyms. j. Galleries.

The honorable,. Public E9ealthi, Human Resources and Senior Citizens Committee of the Council of the City of Los Anigeles Pag,e 10 k. Arenas. 1. LibrarieW. m. Public Restrooms. n. Pharmacies. 0. Hotels and Motels. p. Miuseums. q. Bars. r. Auditcriums s. TaMis (uindier the authority or subsidized by the City while within the boundaries of the City). B. Places of'EmploYme.nt. 1. Should! "pl'ace of employment" be incliuded in the defilnition of' "public place"? 2. Should' "place of employment" be def i~ned to include: a. Employee Lounges b. Conference Rooms c. Employee Cafeterias di. Factori':es e. All enclQsedlareas under the control of a private or public employer which employees normally frequent during the course of'employment V I I'II OPTIONS REGARDING THE NATURE AND DE'CREE' CF RE6UI.AT'I ON A. Public Places. 1. In what manner should public places and/or places of' employment be regulated? a. Outright prohibition, except in designated areas. b. Designation of' non-smoking or srr.ok ing , areas. c. Sign postir,gireauirement. 2'. Shouldithreshold points be established with regard to certain provisions? a. P'rohi!tri't smoking~ in only those establishments withimore than a specified occupant load. b. Require a certain percentage of the I U=1&