Tobacco Documents Online

G**r9*Aqnosl; Clty AtUtarn.lr, November 1, 1i982~ OPINI~dIN~ 8~~2'~ -~ 55~ SLIBJECT: Regulation of Smoking in the Workplace in the City and County ,of Sam Francisco. REQUESTED~ BY:. John L. Taylor Clerk, Board of Supervisors • P'RERARED~ BY:; Burk E~. Delventhal~ Deputy City Attorney Rose Miksovsky Law Clerk QUESTION PR'ES'ENTx'D May the city, and county of San Francisco enact an ordinance reg~ulatingsmoki*:g in the public areaworkpSace? ANSW'ER . Yes, insofar as the city and county does not orohiat't orr authorize~ any~ aspect~ o~f~ the regulation o~f~ smoking~ ahr~ealy~~ forbidden by the~. stat~~e~., INTRODUCTION At the di!rection, of Supervisor WendyNeldez, wou have requested this office to draft legislation to regmlAtp sn,nkina in the public area workplace in the city and county o€'San Francisco. The proposed legislation requires that both Qub1'ic and private employers provide for smokina and nonsmoking sections in public area workplaces. This request raises t':e f'ollowi~ng' questions: (1) Is the subject matter of' the procosed ordinance within the police powers of the city and county of San Francisco? (2) Is this subject preempted by state laws? (1) Would thepropos~ed ordinance conflict w+_th, state lawl and, ('4)Wou1,d the, proposedi ordinanice, deny the equal protection anddueprocess of the law to any individual or entity? ANI4LYSI~S The 1973 ~~ repor~t~ of the PubSic~~ Health Service, u.'S. Department of Health, Educatio~m and Welfare on, "The~~ 4ea?:t~h~ Cbnsequences~ ofi' Smok~ing* ~ c.oncludiedl that, c~igaret~te~~ smok:i~ng:~~ . , was not only a major cause of lunq cancer and chronic bronchitis, but was associated with illness and death from chronic bronc!:opulmonasv disease, cardiovascular dlisease, and other diseases.. '+ 13) 538-3315 Rsaw 206 GM Hall San F.vrncisco 94102 U-24

John, L. TayIor 2 November 1, 149? Studies in recent years have confirmed the heal'th hazarrls~ of smoking. The 1982 report on cancer and smoking by the nf f ice on Smoking and Health of' the Department of ReaUth and 4uman Services cited ci~garette smoking as the largest sinqle cause of cancer, deaths th,i's year. While the health hazards of smoking to smokers have bee.n well' known for some ti'me, more recent studies show that *_hee health, hazards associated with smokinq exist also for nonsmokers who are exposed to, sidestrtam (smoke not iMalel bv tha snoker1l tobacco smoke (involuntary smoking)'. Tni 1972 a reoort bv the U.S. Department of ~1~ea1'thi, rducation and Welfare nota~l t'in~*_ 'sidestream smoke contain!s signif icantly higher levels of ' tar anA nicotine than, mainstream smoke. The T?'.G. rnevartment of *real th and Welfare's 1975 report (1975 Report) stated that the involuntary smoker is exposed to a: siqnificant amount nf carhon monoxide causing slow, reaction time, decreased' oerinheral vision,, decreased alertness to auditory stimuli, and decreased manuel dexterity. Ih Shimp v. New Jerse. Bell Tele. Co!., (19761 145 *1.-T. Super. 516, , i t e court refierl on, the Iq''S Deonrtt and, o her evidence as the basis for granting plaintiff an injunction which restricted the smoking of emplovees of vPw Jersey Be11! Telephone to the nonwork area of the lunchroom. As part of the basis for its decisiion, the court noteA: C_ The REt4 report for 1975, The Realth Consequences of Smoking, and the Surqeon General's report of the same title for 197'7 reveal distressfnq new evidence in the contilnu;.nq investigation of' the toxic nature of' ciqarette smoke. The report indicates that the mere presence.of cigarette~smoke in the air pollutes it, changing carbon monoxide levels antd effectively making involuntary smokers of all who breathe the air.. . . The (1972'] report of the S.brgeon r:eneral indiicates that a burniina ciqarette contaminates the air with "sidestream" smoke which comes from the burning cone and!mouthoiece.of the cimarette . between puffs as well as the smoke exhaLetibv the smoker. These substances [in the +nainstrea-n anA sidestream smoke] are harmful to the health of an exposed person particularLv those who have chronic coronary'heart or bronchonulmonary disease. . . . Dr. S'teinfeldl [iProfessor of Medicine at the University of California and a member of'tHe.

John L. Taylor 3 yhvember 1, 1981 ' American Association of' Cancer Atesparch) states "While . theor Primary toxef f'ects of' tobacco smoking occur in the indi'vidiual. who iinhales the mainstream smoke, it is quite clear that sidestream smoke contains a considerabl- amount of'material which is toxic to the passive smokerr who is near others who smoke." ... The opinionithat tobacco smoke should be eliminated fromi the work environment is sMared `iv specialists in the field of industri'al medicine. ... Based on her (iDr. Susan Dau•nl exnerie~nce she states: In the absence of'such data or longterm scientific studies dealinq with a known noxiouss agent, it is a sound and acceptediproce9ure in the practice of preventive medicine to eliminate the hazardous substance whenever possibl.e until . fi'rmi scientific guidelines can he established. TIr. Donald Sews, a specialist in! occupational medicine certified by the American Roard of Preventive Medicine, ... states (that11i it is his professional judgment that the work environment should! be free of tobacco smoke, one of the major sources of' air nollutilon. The evidence is clear and overwhelming. Cigarette smoke contaminates ancl ooltu*_es the ailr, creatir:g, a health hazard not merPlv to the smoker but to all those aro!und her who +vust re~v on the same air supply. The riqht of an individual to risk his or her own health, dbes not include the right to jeopardize the health off those who must remain arounA him or her in~ orAer to properly perform the duties of their iiobs. The portion of' the oonulation -which is esoeci al l'v T: sensitive to cigarette smoke is solsignificant O that it is reasonable to exoect an emolover to foresee health, consequences and to imomse uoon ~. him a duty to abate the hazarA. ... ~. Tn February, 198'2, the California Department of ''onsu+ner ~ Affairs issued "Clean Your Rpom:! A Comoendium of TnAoor Ai.r Pollution"' which' reports the increasing health hazarAs of indoor G3 air pollution. The report states on paqe v: ~

J~ohn~ L. Ta'y,l~or~~ 4! November 1, t~~a82 ~ There isincreasinq evidence that~ manv mnAern, buildings are damaging thehealthaf thepeovle who live and work~ in the+n. Niuildlfnq diesiqn changes intended to conserve energy, new materials used in construction, anA the flresence indoors of numerous hazardous substances are combining to make the indoor environment, where most Aanericans spenid 90% of their time, an unhealthy place. The report continues on p., VI: Pu~blicpfl~licyon ind+oorr+olluti'on wi1L have. to be comprehens,eive. Industryresvonsi'lbiii'tv must be coupled wit?oiscientific research anA government regulation if we are to .., protect public health. . . . The report states on p. I'I.li: C Since indoor pollution may be contributi*aq anywhere from $15 billion to $100 billion . annu~ally~ to~ o,ur~ national he~altfi~~ car~e~ cos~~ts,~ the~ judgment cannot be deferred in a!nti'cipation of the~ ni~ce~ s~ecur~i'ty,of' exh~austive scientif fic~~ analysis. . . . Tobacco smok~e~ was i'~dentified by~~ th~~i~& reoort as one of' th~e~ major, indoor pollutants, p. FS 17: Smoke was probably, the first "indooz pollutant". Smoke fr=tobacco ooses amai'ar. health hazard. . . . I~n, reporting~~ on t~obacco~ smoke ~ as a ma?j'~or source of~~ qa~seoius and particulate i~nd~oo~r~ air pollution the~ reoort, 0. t'T~t~~.~r.~1., states: Numerous studies have shown involuntarv smoking,to be a significant health hazar3 for several population groups. . . t'0}ocumentation is appearing which shows that orolrnnqel'' exDosuree to, sidestream t~obaccosmoke[Involuntarv smokinqil significantly increases the risk of disease in otherwisehealthyindividiuals,. . . . in discussing, the exnosuxe levels of sidestrean smcke amT the threshold of respirable suspendied--`oarticulates, the reoort, on p. III.E.2., states:. C U-27

johin L. Taylor 5 Novemfie r 1, 19,8 2 . The potential hazardl to health appears to be even.greatez for indoor pollution than for outdbor pollution. ... As energy conservation has become a major priority in this countrv, there has been a s.ignificant decrease in indoor ventilation,rates. Ai'r is recirculated ... resulting in a:higher concentration of resoirable particles and greater exposure to tobacco smoke. ItaiParodi' v. Merit Systems Protection Board and nff'ice -f Personnel Management, Oct. 21, -, t Crrcuit Court o' Aopeai., No. 0-1, the court held that Parodi''s inability to work in a 'smoke-f'illed environment, because of;her hypersensitivity to cig,arette~ smoke, was an environmental limitation and not exctuAed by,5 U.S.C. Section 8331(6) from forming the basis of an employee's total disability. Parodi' claimeei,that when she was~ transferred to a new~ smoke-fi'11'ed workplace she began suFferinqq from pulmonary complications including continual Dhleqm production,,cthestpains~,,congestion,and difficulitybreathing ain'l speaking. A pulmonary specialist diagnosed!hMr as sufferiinq from "asthmatic bronchitis with hypex-Irritable airways," anA' concluded her condition stemmed from hec reaction to cigarette smoke. Parodi was unable to continuwworking in this environment and to~ do so wouldt subj,ect her to the risk of permanent lunq impairment. Parodi filed for dizability retirement benefits, but the Merit Syatems Protection Board and Office of Personnel Management f;)und that under 5 U.S.C. Section, 8331(61 she was not "totally" disabled and therefore ineligible for disabilitv benefits. P'arodi appealed this rulingl and the court heLi that t'*t had jurisdiction to hear the appeal and'hetd that unless parodi'ss environmental limitation was accomodated within 60 rJavs bv an offer of suitable employment in a safe environment, that macoli was eligible for disability benefits. Recognizing that tobacco smoke is a hazardi to the hea~lth of the general public, (see Health and Safety Code Section 2!59401.5), the California Legislature enacted the California indioor Clean Air Act of'1976'. This act regulates smoki'ng in designated oublic areas of'publicly owned'~build'ings. Government Code Section 1024,1 (Chapter 756, Statutes of 1982) was recently enactQd and regulates smoking in state departments, including~the wo.rkolacp. To our knowledge there is no current state or local law which regulates smoking in all public area workpla.es of public an'i private employers. I U-28 f

Jo'hn L,. Taylor 6 Tlovember 1, lg8?' part: CIDNSTITUTI ONALI'TY' Californiai Constitution Article XI, section 7' provides: A covnty or city may make.and enforce within its limits all local, police, sani-tar'y, anA other ordinances and regulations not in conflict with general laws.. San Francisco Charter section, 1.101 provides in relevant ... The c3ty and county may make and enforce aLl laws, ordinances and regulations necessary, convenient or incidental to the exercise of all rights andipowers in resoe'ct to its affairs. . . . OddlFellows" Cem. Assn. v. San Francisco (1903) 140 ~al. 226, 230, 73 P. , iscusses the sco_De o i loca]. ooliica Powerr All the legislative power of' t'he city is by the charter vested in the board of supervisors. 13y virtue of' this clause the constitutional grant of ' police powers of the state to the city goes directly to and vests in the board, which there'bv becomes possessed of the right to exercise within, the city limits •the eritirr police power of' the state, subject only, to the control of qeneral laws. ... The power conferred by the Constitution in thi's respect, . . . is as broad as that of the legislature itself. ... The power to regulate or prohibit conferred uno*: the board of' supervisors extends to everything expedient for the preservatin: of the public health. ...Whenever a thing or act is of such a.nature that it ... may be-injurious to the public health, if not suppressed or regu'lated, the legilslative body may, in the exercise of' police powers, make and enforce ordinances to regulate or prohibit such a~ct or thing, althouqh, it may never have been offe'nsive or injurious in the past. i In Chishol!m v. California Jockey Club, (19S'$), ls;4 rii!al.4pa. on 2d1367, 36, 330 P. t e court state :

John L. TayLor 7 Novemb,er 1, jqS?' Thete,r:m"publ,iche,alth"i,snot susceptible to accuratedefinition since it takes on, new definitions when new conditions arise, tiut generally speaking, it means the wholesome conditions of the community at large. In Huron Portland' Cement Co. v. Uetroit, (19501 '35'2 U'.S. 4410, 442,, L. Ed. 852, . t. 813 La, resooense to a challenge of a local ordinance in applying a local smoke abatement cod'ethw&upreme Court sta°ted: The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city's inhabitants. Legislation designed to free f rompollution the very air that oeool'ee breathwclearlyfal1swi~thin the traditional concept of what is compendiously known as the poliicepowe~r. The purpose oftheproposedordinarnce is to:protect the general public from the health hazards of smoking in the workplace created as a result of indoor aiz pollution.. As discussed supr&, the harmful effects of'smoking are not limitell to the i~ndividual who smokes, but extend to anvone withi'n the range of the sidestream smoke who breathes the air. The hazardous ef'fects are exacerbatedl when smoking occurs within a confined place with little or no air circuUation,and the s*aoke ~ combines with other pollutants, such as asbestos and lead, which may be in theind'oor atmosphere. i~ndoor air nollutioncauseA bvsmoking is a matter which affects the general public health and not merely that of the individual smoker. As a measure which promotes and protects the health and welfare of the general public, the regulation of smoking in the workplace is a val'ic]' exercise of the police powers of' the city and county of San Francisco. PFLEEMPTION' BY OR CONF'LICT' WIT13 ST'A'"E LA'gq We next examine the question of whether the state has manife~stedan, intent, tooccupyf'ully thefieldl of' the requla*_iono" smoking as, i'~ndoorairpollution and thezebypre~empt anvlocal regulation on the subject matter and whether there is any conflict wilth any general state laws. The questions of' ' preemption and conflict are add'zessed together in the cases anA will be so dealt with in this opinion The basic law is set forth in Article XI', section 7 of the Const,itution.which proviAes:. A county or, city may make and!en,force within its limitsa11local,, police, sanitary, and otherr ordinances ands regulation,s not in conflict with general laws.

John L. Taylor 8 November t., t4g! A local ordinance will be deemed invalid if it tmrxoges additional requirements in a field preemoted by general state law, In Ate Lane (1962) 58 Cal. 2#1 99~, 109, 22 ^.a!..*totr. 857, '47'7. P.2d 8'97. The test for preemption is set forth in In Re RiubbarA(1964) 62 Cal.2d 119, 128, 41 Cal. Rptr. 393, 3!eG P-.74'Iff!mr: ~"- (1) the subject matter, has been so ful'lv anti completely covered by general law as to clearly indicate that it has become exclusivelv amatter of state concern; (2) the sublect matter has b"n parti'ally coverediby general law couched In terms as to indicate clearly that a naramount state concern will not tolerate further or additional local acti'on= or (3) the subject matter, ha4 been partially covered by general law, and the subiect is of'such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefi'ts to the municipality. The Legislature enacted the California trndoor Clear Afir Act of 1976, Health and Safety Code 215940 et sea., which reaulates smoking in designated areas of certaira pubLiclv owned buildincs. Health and Safety Code 525940.5' provides: The Legislature finds and declares that tobacco smoke is a hazard to the health of the aenerat public. Areas in whicli' smoking is prohibited bv this Ikct incluAe but are not limited to indoor rooms or fllaces off ouhlic aiaMmblv, health facilities or clini'cs, publicly owned bui'tAinqs which are open to the general publ'ic for the arimarv puroose c+F exhibiti"a any motion picture, state drama, music, or restaurants in publicly owned buildings. Health and Safety Code section 25'94'6 arovides: The Legislature declares its ia.tent not to preempt the field'i of regulation of the smoking of tobacco. A local governinq botiv +nav bani completely the smoking of tobacco, or Inav regulate such smokinq in any manner not inconsistent with this chapter or any other provision of state law. Health andiSafety Code section, 25946 exoresslv mrovi4es that the field of regulation of the smokinq of tohac^o is innt preempted by the California lndoor Clean Air A'ct. '*he go C C

,]onm L. Taylor 91 November 1, 1q4 7 Legislature expressly permits a local governinq bocw to orovide additional supplemental regulations. The scooe of the supplemental regulation may inlcude a, complete ban of' svnokinq. In 1973' the Legislature enacted the r:aliforni'a ^ccuoatilonali Safety and Health Act (Ca1-0SHA), which, establishes a comprehensive scheme for the.,requlation of health anrl safetv tn the workplace. In accordance with 29 U.S.C.A. sectfon667'(b) , the California Occuqat3onal 'Rafetv and qeatth Ike.t is controll.i'nq over Federal standards in California. part: California Labor Code section 6300 oroviAps in relevant The California Occupat3onal Safety and Real'th, Act of 1973 is hereby enacted for the nurooRe of assuring safe and'healthful working condittons for all California, workinq men and women by authorizing the enforcement of effectivew standard's. . . . . Labor Code section 63016 (a) provi'des: "Safe," "safety," and "'health" as aDOti'eA to 3n employment or a olace of employment mean such freedom from danqer to the life, safetv, or health of employees as the nature of'the employment reasonably vermlts~. Labor Code section 6316 provides: Except as limited by Chapter 6(commencincv with Section 1!4'0) of Division 1, nothing in this nart shall deprive the governi'nq bonly of anv coun!v, ci'ty, or public coropraton, board, or department, of any, ppower or iurisdicti'on over or re?at{ve to any place of employment. . Cal-OSHA does not provide for the •.reaut.aticn o,P ' synoki na in the workplace. The express legislative intent in Ca1-!)q'RA in Labor Code section 6316 is that a citv may imoose aAAitiona,l. or supplementary regulation of'any place of emplovment. AMitinnat local regulation of smoking in the workDlace is consi stent wi*.h the policy of Cal-OSHA to provide a safe and healthful work environment and is not preemoted by t7a1-r)e-qav. As discus'sed supra, the Legislature has escheweA an intent to preempt this f iel'd eilther by full occuoation aF th,,? f iPl!A or by a comprehensive statutory scheme. Mor does the prooosed' U-32'

John L. Taylor 10i *ToveTber 1, t'Q'R2 ordinance conflict with any language either, in.the California Celan Indoor Air Act of 1977 or the Cali'fornia Occuvationat Health and'Safety Act of 1973. We next turn our attention to anv other state laws which seek to regulate smoking. A local ordinance may not conflict with a general state law. If there is a conflict with a state law the state law preempts the local ordinance. In Baron v. City of Los Anqeles (1970Y 2 Cal.3d 535, 541, 86' Cal.Rp tr. b, F.7e court stated: c As diefinedi by the cases the constitutional Phrase. "conflict with general' laws (art. XI, section 11) may arise in several different ways. It may grow out of the exact language of the state anci municipal laws or from a local attempt to impose additional requirements in a field that is preempted by the general laM or from the state's adopti'on ofl a general scheme for the reaul'ation of a particular subject. ®ut if the state's preemption of'the field or subiect is not complete, local supplemental tegis'kation is not deemed confli'cting to the extent that it cover.s phases of the subject' which have not been covered by state law. Smoking is regulated by Public Vtilities Code secti'on 561(',a)' which provides: Zvery railroad corporation, passenger stage corporation, passenger air carrier, anA streett railroad corporation providing departures originating in this state shall orovide contiguous designated space of not less t an S0 percent of the seats for their nons+noking passengers. The regulation of smoking is ailmed at the orotecti'on of passengers utilizing public tra!nsportati'orn. '*he oronosed ordinance does not conflict with this state law, as it seeks to protect the employees in a manner similar to that of oassenaers. The proposed ordinance supplements the general state Iaw.. In 1980 the Legislature enacted chavter 191 which amenAs sections 1235, 1290, and 25942 and ar]ds gc12'34 and i2'66 to the Health and Safety Code. The bill regulates smoking in a tieatth facility or clinic. Section I of that article provides: IV N C I I U-33