Tobacco Documents Online

C'iTY €7r Ss1;C'Z.AN7}:'N'T+Oi t) t± f" A It Ik1 F N 1' O F l. AW p~..^,~it~.:. f r. SACMA4E"*i0 CA 95304 ;,- nE;r • *ELEPMONE 1f'S464t1naf L.:: and Legislation Committee City ' Hall 915 I Street Sacramento, CA 95814 December 19, 1984 JAME5 P. JACKSON City Att9rnay, THEODORE H: KOBEY: JR: ASSiStAnt Ciiy AttOrn+ry. SAAtUt:il L JA(yKS'O'N WIt.L'IA'fA'P. CARNA120 LAWRENCE /A I LUNA'R07M1 OIA'NE 8.BALTER RICHARD f.AfrTp1VE' Oeputy,C-ty nttornays Ft'erRWGIt1LAiTION OF S:v10XIIvG ' IN PUBLIC FLACES'AND, THEia10RFCPLACEI.-nara5lie Members in, Session: Eacke4round At the cocn:nittee meeting on December 13, 1984, the co.zuaittee requested that it be given copies of the Sani Francisco and L•)s. Aageles legal opinions regarding non-smoking ordinances e:r.ztited in those cities. Further information was also requested - regarcd'icag any li'ti,giation over San Francisco's ordinance. i(Attachments 1 an& 2' are the San Francisco and Los Pmgieles. ~- opiaions. The Los Angeles opinion is mainly a discussion of viable options. The San Francisco opinion contains a: detailed C'i ,c,ission of raos t of the legal issues presented by the d'raf t ordinance. While the!draft ordinance is considerably broader thati, the San Francisco ordinance, in that the latter does not regalate "public places", the issues are the same. In conversations with the San Francisco City Attorney, we learned that there has been no litigation directly testing their ord :nance. However, there has been private litigation icnvolvin3 the "nondiscrimination" clause in that ordinance. The case is entitled'. Cl.audia Marshall v. Landsberg, Associates, San Francisco Su :erior Co!:rt No. 823711. A copy of a letter from the pl,intiff's attorney in that case to a, Los Angeles councilmenbzr reg,arding that case is attachment 3. An-l y sis' 1 , .~ nnmt~-, oE logal issnrn:, wzre pre,cnited at the com:nittee h_..i.-zng hy ^ttorn?y Grossfeld. These sz;ae issues and arguments wo ~,rey_;~!.e3 to the Boacd of Suipervisors at its hearings and, fL- tfi:: no1;t part, are aJiswered by the San Francisco City At.;_r:rtany's ]_•sga1 opinion. These issues and their rcsolution are nn Fullo:v:,. U-14

L--:: and Legislation Committee P. 2 DQce:1Tb•_r 19~, 1984 . Is regulation of smoking within the City's police power? Yes. The record contains ample evidence that secondary smoke c3n, in certain circum3tances, constitute a health hazard. In RuYon, Portland CRment Co. v. Detroit (19.60) 362 U.S. 440, 442, u`:ere a local ordinance which regulated environmental smoke was challenged, the United States Supreme Court held that: The ordinance was enacted for the manifest purpose of' proa:oting the health and welfare of the city"s inhabitants. hegi'slation designed to free fromipollution the very air that people breathe clearly falls within the traditional concept of what is compendiously known as the police power. Tlrrt synergistic efEecta of indoor smoke in coambination with other aos lutants clearly affects the public health and' safety and is aa propar subjiect for exercise.of the local police power. The San Prancisco opinion, pages 6-7, also disicusses thi's issue. 2. Is the field of indoor smoking repulation preempted by state or federal law? No. The SaniFrancisco opinion, pp. 7-12, discusses this rssu:- in detail. Nevertheless, a general discussion of preemg- tion, will help to clarify the issue. There are two general categories of' "preempti~on":e:,pr=ss and' impl ied. Nnere the State. Legislature has expressly Frea.it ted an area which is in fact a matter of "state~~:aide r_oncarn"', local government may not enact any regulation in that area even if,the proposed regulation dbes not conflict with state law. Galvan. v. Superior Court (1969) 70 C.2!d'. S'51; Doe v. City n_re -ounty ' of San Francisco (198'2) 1316 C.A.3d 509. Conversely, ~.c a ratter is a"municipal affair"', "a chartpr city may regulate t'ip subject even if its regulation conflilcts~with state law."' 1'De v. Citv ancl Count:y, of San Francisco, supra, 136' C.A.3d at p. 512; ; Bishop v'. Cit'Y+' of Sam Jose (1969) 1 C.3d 56, 61-63. '.cticle XI, Section 5, California Constitwtion. 11ssu:;ri'ng for t_he ran:iient that regulatiorn of indoor smoking is. . r.,;at:ter of "'statwide concern", there is no express preemption. t'rr f.3ct, the le3i:,lal-uT:--. has expressly declarcil its intent not to _e Tnt. Health and 5n`ety Co:?c $ 25946 reads as follows : . < U115

I•z~•: anc3' Legislation Cornmittee p. 3 1]ec;:t"or 19, 1984 The Legislature declaces its intent not to preesrot the f'ield of regulation of the smoking ot tobacco. A local g'overning body may ban completely the smoking of tobacco, or may regulate such smoking in any' manner not inconsistent wath this chapter or any other prov'ision of srate law. (Emphasis added) S Setween the two extre.~es set forth above lies the con- capt of "implied"' preemptio'n. If a matter is in' fact one of "stewide concern"',, but the L_gislatur2 has not exaressly preempted the fiel!3, local regulation in that field is subjected to' a three-prong analysis to determine whether the local regula- tion conflicts with state law. Galvan'v. Superior Court, su ra, at pp. 659-660. tDnder this analysis', there is n_o prez,uption Lflltiss : . (1)' the sub.ject matter has been so fully ar.d co:apletely coverzd by general 1!aw as to clearly indicate that it has beco:ne exclusi'vely a matter of state concern; (2) the sub jiect matter has been partially covered by general law couched'in such terms as to indicate clearly that a paracaount state co'ncern will no't tolerate further or addition,l local action; or (3) the subject matter has 3?en partially covered by giener'a1 law, and the subj'ect is of such a nature that the adverse effect of a local oxdlinance on the transient citizens of the state outwoighs the poss'ible benef'it to the m.;nici pa l,i ty . . Applying these prinaiples to the draf't ordinance, it iss clear that there is no impLied preemption. First, Flealth and Sa.ety Co3e § 25946, quot'ed abowe, expressly indicates that ind'oo: smo'king is not a matter, exclusively of statewid _ concern. For estiample, a l'ocal governing body is' express2y permit'ted to totally ban smo)ting. Second', the state la:a is not couched in term ,: .rhich' indicate p.ceclusion of locali r~gulation. As set fort:-t abovm, 5 25943 e~pressly allows exkan ;ive local regulation.. F nall!y, no un<iue i's pla`ec3 on transi•~, t citi- e~s. Tne draf.N, ordlicnance c'alls for extensive sig,n inc~ ting;, 9"'i,rg ci~^,r not.~.c~ to tr3nsient ci'tizens who' are sma' .-cs. N N ~ CT~ ~ ~ N cI U-16'

5,:::1 and! Legiz;Uation Committee p. 4 UcceTber 19, 1934. Tha only ramaining point related to preemption is the n_~~zing of the term "not inconsistent with, this chapter or any other provisions of state la:+"', as utilized~ in § 25946. The term "i^con'aiste!nt" i5 similar to the term "conflict" as used in r`.-*ticle XI, Section 7 oE the California Constitution, which pro- vi~?as that: A county or city may ma7ce and enforce within its limits all local, police, sanitary, and other ordinances and regulation& not in conflictwitta,general laws. (Emphasis added), The emphasiz;ediworCs were considered in Baron v. City of Lcs: Angeles (1970) 2 C.314 335, where the Court held that: As defined by the cases the constitutional phrase "conflict with general laws' (art. XI, sectiom 11)~ mayariseinseveral! different ways. It may grow out of the exact language of the s*_ate and msnicipal laws or from a local atte.mpt to impose additional require- ments in a field that is preesnpted! by the general law or from the state's adoption ofa general scheme for ttierequlation o~fa par- ticular subject. But if the state's preemp- tion of the field or subject is not complete, localsupplea-ental legislation is not disemed conflicting, to, the extent that it covers pha- ses of the subjectw.hi.chhave not beencoueredby state law. 2C.3d at p. 541. Applying the aboNe quote from the Baron case to the draft ordinance, the State Legialaturehasexpresslyprovided that its regulation of smoking is not intended'l to be "complete". Thex.fore,, a local ordinance: which imposesrequirementsi'rn areas n~.~t coie_ed by state la,a is cle~arZy, not "incons~stent" or "in co~iflict" with state law. To crinptete the analysis, however, the various relevant st.tte law; cl23ling with srno'.ti,n% nust be exa:nimad. In 1976, the le:;is.lature e,aacter3 Health £: Safety Code §,t'i 2590, et. knc•:n as the California indoor Cle.n Air Act. Sc^rtion 25.,:5, a5o;re, ?::-~ p.rt oZ the Nct. This Act prohibits s,ic':i.ng in, pu~ti:tY erwn!e3 1,^litdin-js., in certain h-~a?th facilic.ies, _. ~ in fooA ;, :or es. tir. Gro:ss Eield anpzr:~ntly co_ntends th•t U~-17'

L3:+ and! LEg.islation Comnmittee p'. 5 Dece-n'oer 19, 1984 h which expressly states that the Legislature is not preempting the field of smokingregulation, authorizes regulation only in those facilities covered by the act. That unreasonably restrictive i'n*_erpretation renders the section virtually meaningless, and imnos!e3 undue restraint on exercise of local police powers. ho*_hing in the draft ordinance is inconsistent with, the Indoor Cleaz, Air Act. The ordinance regulates in areas other than the Act and, under the holding of the B_aron case, is not "inconsistent" with state la:v.. Secondly, in ::y73, the Legislature enacted the California Occupational Safety and Health Act (Cal-OSHiA) which establishes aa compr_hensive scheme for the regulation of health and! safety in the workplace. In accordance with 29 U.S.C.A. Section 6'67'(b), the California Occupational Safety and Health Act is controlling over Federal standards in Cali'fornia. This disposes of Mr. G'rossfeld's apparent contention that federal law may preempt this area. California Labor Code Section 6300 provides in relevant - The California Occupaitional Safety and Health ~ Act of 1973 is hereby enacted for the purpose of assuring sa~fe and healthful working con- ditions for all California working men and' women by authorizing, the enforcement of effec- tive standards. . . . Labor Code Section 63I06(a) provides: ' Safe,' "safety,' and~ ' he:alth' as, applied to an employment or a place of' employment meann such freedom from danger to the life, safety, or health of employees as the nature of the employment reasonabSy, permits. L3bor Cod2 Section 6315 provides: E::cept as limited'by Chapter, 66 (commencing with Section 140) of Division 1, nothing in t:his part shal.l depriv.2 the governing, body of ..>,ay cnunty, city, or pablic cpcporation, 1,oard, or departmeint, of any power or' juris- c:irtior: over or relativn to any p1acz of. : .~toY7 en;:.

r 7.?w 3u:a'. l.ngisl ztion Conu:iitt:ea F' - C> 19, 1934 C C31-OSaM does not provide for the regulation of smoking in the workplace. The express legislative intent in Cal-OSHA in La'j.or Code Section 6316 is that a city may impose additional or _:~a-)lementary regulation of any plaice of employment. Additional lr:_ 1 regiulation of smoking in the workplace is consistent with t::e palicy of Cal-O'SHiA to provide a safe and healthful work E:nvironment and is not preempted by Cal-OSHA. Third, smoking is reg!ulated by Public Utilities Code S:.:c ic.:. 551 (a), which provides: Eyaery railroadi corporation, passenger stage corporation, passenger air carrier, and stree:, railroa3 corporation providing departures originating in this state shall provide con- tiguous designated space of not less than 50 percent of the seats for their nonsmoking pass- engers. (Emphasis added) . draft ordinance bans smoking on buses and'other public con- c?,:~ ac~s in the city. Section 561(a) provides for not less than 5,i~-j.noasmoking area. Thus, a total b3n, is not inconsistent with S'_c:: ill 561(a). - Fourth, Government Code Section 19262 provides: E~Lch state department shall either adopt the existing poicy of the St•ate Personnel Board on s:nokir.gi, or, adopt their own policy on, smoking which addresses the rights of nonsmokers to a smoke-free environment in formal rneetings, informal meetings, and work stations, and which allows for administration of the policy and for the resolution of conflicts regarding the policy. Nothing in this section shall require the building of partiltions be2•:.l smokers and non s:~~oCc ~?.rs . This se;.tion deals only with state d'epartmen!_s and faci- 1~ wtiich the draft ordinance do~.z not purport to regulate in ~-. -:3nzer. There is ttous no inconsi.-.:tency with thiz law. Silnci~ no incansistency with °•iy applicablc: zL-,te la:a there .is no preemption. C e1 U-19

?.-z • and' I.^ciiW'la.ion Co'mm~'tttee a p+,. .~7 19, 1931 3. Does the draft ordinance violate the E~qua1 Protection Clause of the Fourteenth P^sndment to the in'. S. Constitution, or' oE the California Constitution? No. The eq,ua1 protection issue requires analysis of the va=i~o;a "'classifications" (i.e., differences in t'reatment) cre_tedl by an o:dinance. Ordinances adopted pursuant' to the local police pc•.qer are exanined under the "rational basis"' tcst unI.ss they imaos'e significant restrictions.on a specially- p_ctacted group of persons ('called a"suspect'class"')'. Since smo':ers are clearly not-a, specially-protected class, the rational b._sis tPst' :nust be applied to the "classificatio'ns" created by t:: crdinance. The essence of this low'level of scrutiny was set focth clearly in, Lin_dsley v. Natural Carbonic Gas Co. ('191d) 220 U.S. 61, at p. 73: l. The equal protection clause of'the L4'th A.r:endimenit does not take from the state the . po:+zr to classify in, the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and'avoids what i's done only when it is without any' reasonable basis, an& therefore is purely arbitrary. 1 2. A classification having some reasonable basis does not of f endi agains :. that clause merely bzcausA it is not m3d,:? with mathematical nicety, or because in practice it results in some inequality. 3. t~~ :ern the classifi!cati-i in such a law is' called in question, if'anv state of facts rc_;-Asonably can bP conc,i'ved that' would sustain it, the exist,_:ice of that state of facts at the time the 13w was enactad i,ist t-:4 asaumed. 4'. Oz.i who assails the c'..:assification in, such a lawmust carry the r., :rden of showing that it does not' rest upon :~n'y reaso'nable.basis, b;t ils essen`.ialTy ar;.•Itrary. (Enphasis n: : •3 ad ) . A ren:;~,.lahle basis exists ")rr c~:ch classification, d!r,::•n ::..' tl'ic ordinnnc-. For e°:znpl.e, smr)' 1n7 is totally banned in L facilitz ~:, while a bowlingi .,' 1e.,'Y ' is permitted to set. U-20

J._ : na:1 L.:tgislia tion Co~nnlttc..•a P. r.. 19, 1934 s-t asi de a nonsmoking area and allow smoking elsewhere. This cis_inction can be justified sii-ziply by the differtnce in the ac` ijity ccithin the business. The same rationale coul& justify tl:-~ 6i t terential treat:aen t of bars and res taurants . t7;:i1e a detailed e:ra:min:3tion of all classifrications, by the or3ir.ance is beyond the scope of this r..Qmorarndum,, t.".s oi:~ponz,nts have not demonstrated that any provisior: of the is, in the words of' the Lin3islev court, "'essentially arb?':.::tt'ry". 4. noes the inclusion of criminal sanction3 4'n the ordi- nanc?, to be enforced! bi county officials, render it inval id? t+~o. The draft ordinance provides that violation of the );ul,lic— placro smoking ban, and the posting, requirements, constitu- tas an infraction with fines in the amounts speci~fied, in Go~•~:~.a=mt Code 5 25132. It also provides for criminal enfor- c;--M_ t L•:, county offirials:. Civil remedies are also provided in tlie or3i_na!nce. C The City counterpart of Gov. Code 5 25132 is $' 3'6900, whi;.:i re;ids as follows: y 36900. Violation as misdemeanor or infraction: Prosecution or redress: P,enalties (a) Violation of a city ordinance is a mis- demeanor unless by ordinance it is made an infraction. Such a violatiommay be prose- cuted by city authorities in the name of the people of the State of California, or redressed by civil action. (b) Every violation determined to be an infraction is punishable by (1) a fine not exceeding one hiiin:3'r~d dollars (ST010) for a first vialzrtion; (2) e fine not exceeding t~:o itiundl*_-ed do_1lars(S2'00) for as~econd violation of' the same ordinance within one y.ear; ('3') a fine not e:.ceeding five.hun3red dollars (SS"~) for each cadi~tiiornat vinlation of the same ardinarncr withi:n one y4ar. "01 is al;a relievarot, ar.i rcsds as follows: U-21

L:^a aarl llieg,islmr-icrn Coatmittec. p. 9 Dcc.-:r 19. 198'•i S 3'69'J1. Fin?s, wenalties, an:J forfeiturNs The c:ity legislati've body m3y impose fines,, penaltie3, and forfeitur:es for violations of: ordinazces.: It may' fi:x: the pemalty by fr:ine or imprisOnw.snt, or both. A fi:ne shall not exczed' o:e thousand dollars ($1, OOiO ). Inp= isonmen t shall not e.cceed s ix mon ths . Ii, numoer ofl points can be dist:illed from these statutes: ('a) Tha c'ity can 2nforce its ordinances crim:inally or in a civil action. (b) Violations can be made i:nfractions. (c) Civil penalties may be imposed. (d) There i's nothing prteuenti:ng, the city from ente:ri'ng into a c,~op2r3t:ive znforce:ne:.t agreement with county ofricials.* Cities re;ular:ly exercise their power to enforce their ordi:nances by a:combization of crim'i:naL and civil sanctions,, includi:ng, injuncti"re rzlief. Blr. Gr:ossfeld appa:rently takes is:5ie with this basi'c precept, with somewhat unclear argume:ntss b=~md ' o:n the Pena1 Code. Fiowever, closer analysis reveals no ccn•`_lict w:hatsoever with the Penal Co3le. Conci!usions 1!. Tlze C'itw Courncil has the power to enact a smoki:ng caztrol ordinance under its pol:ice po•~er. 2. The draft or:d:i:nance is not preempted', expressiy or iT.plie:3ly, by' stat~ law. N 3'. There is :.o viol'ztion of the: state of fedierai equzl p°~- Q tection' clause:s. N C!'1 C+~. -- • - r~ :' ' cUilm1~ Considerilnn., ina.`.ion ot cCl-iinc7n s: ncti©n wit:fri n i'ts o r ':nan:c~~ .~.~ oo~ th:F: pot2:nriaI ar;~nd'~ient:s in ~: :.J Ibc'u.~ry 1~$~;. ~. U-22 {

C I + : ani! Lagislatioz Co=mittr_e P.10 u-,; -^5er 19, 1934 4. Inclusion of' cri:ainal and civil sanctions in the draft o.Ji:zance is lawful. Very truly yours, JAMES P. JACRSpN' City A + ney cac At t 3chm2nts rrrr J 93.rrr .1..» ~ Deputy City F,t brney LLIAZ%f P. CABt ' 0 . C