Tobacco Documents Online

LAw.Orr,cet of~ B'Iz,on0%•si(V, I3noDO.,sicy c• GuoSsFsx.r) {/f TE!MTN/~~.tTill~tC~T~ 11iqCkH~M1:N-TOi CR!LITON1i~lA,Y3Ml14 . w1LUA~r 0~. 8MOOiDaARW AV,M A. GROOOVs/i'1. •s,L~LpOM M.,6wO8fIOLO~ •utrw«c w. «I«csrlraV liov ember 20, 1984 •rr-9Dd@ ARCA CIOot !1• Mr . Ja ck KeI ley Tobacco Ins titu te 1225: - 8th Street, Suite 33'0 Sacramento, California 95,814 Re.: Smok in,e Qr d inance Dear Mr. Kelley: You have: asked this office to review the proposed 'ordiniance currently pend'.ing before the: Sacramento County Board' of Supervisors regulating, the smoking of tobacco in, public places and render an opinion concerning its constitutionality. SUMMARY OF ORDINANCE The, ordinance, entitled "Smoking Pollution Control'1,, would operate to repeal all former county regulations in this area, and imsti'tute a comprehensive and complex body, of law governing the activity of smoking tobacco. The proposed ordirnance would render it unalwful for any person to smoke in . an enclosed area in virtually every location,, publ'ic or pr ivate, where members of the general public are permixted' to be admitted. Under the ordinance, smoking would be wholly banned i~ banks,, stores, terminals, buses and taxis, county meeting, N; rooms„ places of exhibi'tion, schools, and hotels and motels. N (See generally, Secti'ons, 6'.84.05'5-6.84.125) 0'ther locations, ~ such as restaurants, theaters, hospitals and private offices ~ would eithier be subject to a percentage limi'tati'en, where only~, ~ a certain percentage of the enclosed area woul'd be accessible to people who wish to smoke, or only allowed to permit smok ing C;j in prescribed areas. (See Sections 6.84.105„ 6.84.090, ~. 6.84.120', 6.84.140(a).) An owner, manager or operator of a pr ivate' off ice may,. by pos t ing, "'Smok ing P ermi t ted" s i'gns in the mann er pr es cr ibed by the ordinance, authorize smoking withlin an office occupi'ed as a place of work exclusively by smokers. An owner, manager, or operator o# a theater, meeting hal l or aluditor ium may permil t v-1

Mr. Jack Kelley Tobacco Institute November 2'0, 1984 Page -2- smoking in not more than 5'0x of the floor space of the lobby of the builiding, by posting "Smoking Permitted" sigrns in the prescr ibied manner . An owner, manager or operator of a hotel or mo tel may al low smok i'ng w ith in rooms r en ted to g.ues ts i f "Smok ing Permi tte.d" s igns are pos ted in the prescr ibed' manner. An owner, manager or operator of a restaurant may permit smokin~g within dining areas of restaurants iin separate rooms orr locations which are adjacent to the primary dii'ning area andl which contain, no more than fifty percent of the total seaxing capacity of the dining area by posing "Snoking P'ermitted" signs in the prescribed manner. (See, Sections 6.84.075, 6.84.100). The proposed ord inance permi ts smok ing in the following places i f "Smok ing Permitted" s igns ar e pos ted' in the manner prescribed: offices fully enclosed by walls from floor to ceiling occupied exclusively by smokers; confereniceLmeetiing rooms, public and private- assembly rooms within, restaurants,, hotels and motels while these places are occupied for pr ivate functions which exclude members of' the general public; rooms in places where smoking is generally prohibited which are fully enclosed by walls from, floor to, ceiling and are made available for the use and convenience of smokers, so long, as such rooms do not include more! than ten percent of the total floor space coztmi tted to the pr imary activity or function of thie facil ity .. Certa!in other locations are wholly excepted from the ordinance including private residences; bars;, tobacco stores or tobacco departments physically separated from but within retail- orr d~epar tment sotres; colunitry clubs or cliubhiouses, except dur ing events where members ofl the general public are invited; por t'ions of, places where smokAng is generally permi tted not open to members of the public; facilities operatedl by other governmental entities for the performance of governmental orr other public functions. (See Section 6.84.140) The proposed ordinance provides that persons who violate the provisions relatiing to the prohibitioni of smoking iin locations other than the workplace will be guilxy of an infraction. Persons who fail to post "Smoklng Permitted'"' signs or to take other steps mamdated by thie ordinance relative to the posting of signs shall also be guilty of an infraction. The penalty for a violati'on of these infractions is a fine in the amounm prescr ibedi in Section, 2'S132 of the Government Code!. Violati'ons of the sections relating to smoking in, the mst workplace and the prohibition against discrimination agaii non-smokers may be prosecuted by civil actions seek ing injunctive or other relief. ~ ,

Mr . Jack Kelley Tobacco Institute November 201„ 19'84 page -3- The County Director of Health is given the . responsibility of enforcing the provislons of the proposed ordinance. At the request of' the Director,, the County Cbunsel shall prosecute workplace violations in the name of the Counity. Additionally„ any member of the general publiir may individually commence a civil action for money damages, i'njwncxi~ve or other relief agaiinst an individual or entity who violates the anti-discrimination provisions of' the ordinance. A member of the general public is also author ized to coamence a civil action for any other violation of' the proposed ordinance. ANALYS IS I The County relies on the provisions of Health & Safety Code , Section 25946, as i ts au thor ixy for the proposed ordinance. That statute provides as follows: "The Le,g,islatwre declares its intent not to preempt the field of regulation of the smok ing of tobacco. A local governing b~ody may ban completely the smoking of tobacco, or may regulate such smoking in~ any manner not incons is tent wi th thiis cha pter or any o ther pr ov is f on o f s ta te law. (Emphas is added)" Since the above statute specifically declares that it. is non-preemptive, local regulation of' smoking would iniltially appear, to be valid so long as the ordinances that are enacted N' are "consistent'"' with State law. The question them becomes O' when are such ordi'nances' deeanedl consistent, and when are they N deemed inconsistent? ~ A review of the sections contained in Chapter 10..8', ~' referred to: in the statute quoted, ~su ra, reveal's that the ~ State law concerns itself with regu aT tion of smoking in public G~ plaices. More specifically, with the exception of, sections d'i'rected' towards smoking in health facilities and clinics, and': N in retail food establishments, the entire body of legislaition concerns smok ing in Qu~bl~iel'y owned bui'ldin~gs. The proposed County ordinance i~s mucF more far reaching, regulat4ng smoking, in a var iety of publicly and pr ivately owned buildings.

Mr. Jack F:el ley Tobacco Ins~ta tute November 20, 1984 Page -4- There is no case authority which interprets' the use of the words "not inconsistent" as set forth in Health and Safetv Code Section 259=+6. Therefore, other areas of decision must be reviewed to determine whether the proposed ordinance is deficient in this regard. iJnder Art3cle XI,, Section 7' of the California Cons ti tution , local agencies are empowered to make laws not in conflict with general laws. If an examination of the local ordinance does not reveal a direct conflict with State law (which iis the situation in the present case), a three way test has been employed by the cour ts to determine whe ther an impl ied com fl i'ct exis ts. In Spor ts Commi ttee Di's t. 37 A.M.A. , In1c V. Count x of San Bernard rno C'. A. ,, 16Ca . ptr. . 652 the cour t escr r.ea the three tests as: 1. Si1he ther the sub jlect matter has been so fully and completely covered by general law as to indicate clearly that a paramount state concern will not tolerate further or.additional . local acti'on 0 i 2. ' Whether the sub~ect matter has been partilally covered by general law couche In such terms as to indicate clearly that a paramount state concern will not tolerate fut ther or ad'idli ti'onal local actilon. 3. Whether the: sub ject matter has been par tially covered by general law andi the subject is of such a na~ture that the adverse effect of a local ordinance on the trans ient citizens of the state ou.tweighs the possible benefit to the commun i ty. In the S or ts C'ommi ttee case, the cour t''s decis ion to uphold the challenge statute (a permit requirement for off highway vehicle use in the desert region) turnedi on its use off the third test, since the local community's interest in preserving the delicate ecological balance of the desert ou tweighed the adverse ef fect of the permit reqwi'rement. N N 00 Obviously, the Only bas i's for challenging the pr oposed op1 ordinance under the above referenced test is by employing the CA third' prong. With Sacramemto attempting to promote itself as a CTI '''convention eapi tal" and a tour ist attraction, it is clear that W untold numbers of individuals who are not county ciltizens will be adversely af fected by this statute. . V-4

rYr. . Jack Ke11'ey Tobacco Institute Novembet 20!, 1984 Pa ge - S- Section 6.84.18'0 of the proposed- ordinanice• states in per t inent par t:. "'Aili l pe r s on s a r e pr es ume d t o k n ow t h e law in general, and to be aware of the prohibitions contained& in, this Chapterr respecting smoking, in particular. Therefore the absence of any "Smoking Prohibited' sign or alternative symbol required by this Chapter shall not excuse a violation of this Chapter perpetuated' by smoking or otherwise constitute a. defense to any criminal or other proceeding commencedl for the purpose of enforcing the provisions of this Chapter a~gainst prohibited smok ing,. ,° Based onthe fozegoing provision, a person is subject to prosecution for violatiom of the ordinance when he i~s smoking while travelling, through the county on a, cross country bus route, or wh ile tak iiag & taxi from Yolo, County into Sacramento County, or while staying in a hotel or motel room that i~s not posted with appropriate "Smoking, Permittedl" sigins. The proposed ordinance provides that all persons are presumed to know the intricacies of the law, prohibiting smoking, yet ignores the fact that smoking of tobacco is an aict which is legal in this state. The potential for confusion and inaidvertent violations of the ordinance is limitless. Other cases have held that a conflict exists where a municipal ordinance unjustly discriminates against certain in4ividuals. The: criterion used to determine whether a ~ municipal ordinance is unreasomable in this manner is to be de termined'. whe ther any class i f i ca tion a t tempted is basedl on 0 some "constitutional, or natural, or intrinsic dlistinction"' (Martin v. Superior C'ourt ('1924) 194 C 93, 100, 227 P. 762). ~ qi) In the case of In re L ons (1938) 27 C.A. 26 182, 1'8'b~ 80 P. 2d 745, the court edi that where a municipal ordinance ~ places disparate burdens on ciitizens~, such an ordinance is unreasonable and unenforceable absent a rational basis for the,5, dis par ity. Bas i'ng their decis ion in, par t on the Four teenth Amendment, the court cited' the case of Barbi'er v. Connollv V-5

Nft. Jack Kelley Tobacco Institute Nowember 20, 1984 Page -6- (188'w) 113' U.S. 27,~ 31. 5 S. Ct. 357', 359, 28 L. Edi 921 which hie1 dl: " . the fourteenth amendment requires "that equal protection, and security should be given to all under like c ir curcn.s tances in the en joyment of the ir personal and civil rights; that all persons should be equally entitled to pursue their happiness and en joy property ; . . . that no impedi'ment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid& upon others In the same calling and condition." 1 UsAng the above cited cases, the proposed ordinance could be challenged not only as. be ing incons is tent wi th s ta te law, but also as an unreasonable and unenforceable exercise of' the police power of the County, by pointing, out the arbitrary exemptions and percentage limitations set forth in the proposed ordinance. the smok ing of tobacco wi th in the types of' public places UZ1 covered by State law, then the argument of a conflict between the proposed' ordinance and State law wouldi be applicable. {A (,r!l C'our ts in other jur isdictions , when faced wi th a similar challenge, have held' that the police power of a governmental entity may not be used to regqlate property interests unless the means employed are reasonably suited to the achievement of t}bat~ goal (See, e. _, Alford' v. City of taewpor t News (1979)' va. 260 SI. E. 2d-2~+L, 242). A ques tion ar ises as to whether the above ar gumen ts would survive challen ge, given the~ fact that Health and Safety Code, Section 25946' allows a, local government to ban, completelyN the smoking, of tobacco. If this provision is interpretedl to 0 mean the banning of the use of tobacco for all purposes and N within all places, then it would appear that~ the ord!iinance ~ represents a less restrictive alternati've, and would be upheld ~ on tha t bas is . 0n! the o th er h and , i'f' the s ta tu te mer e1y ~ provides the local government with the power to ban completelly „;~b v-6

Mr. Jack Kelley Tobacco Insti tute November 20. 1984 Page -7- It would appear that the latter .imterpretation of a local Rovernment's power to ban smokiing altogether is the accurate one, particularly in view of the fact that an outri€htt ban of' smoking involves a substantial area of statewi'de interest as opposed to regulation of a municipal subject under the local governmental entity's police power (See, e.s., Baron v. Cit of' Los Angeles (1970) 2 C' 3d 535, 86 CT Rptr. 67', P 353). 11 In, seeking to regulaxe smoking in public places - and irn the workplace, the proposed ordinance violates the Equal Protection Clause of the Fourteenth Amendment of the U. S'. Consti~tution. It is a well established principal that the Equal Protection Clause prohibi'ts state and local g©verning bodies from enacting laws which contain classificati-ons thalt are arbitrary and without rational relation to the interest sought to be advanced by the law. As stated by the Supreme Cour t in Reed v. Reed ('1971) 404 U. S. 71, 76: Ac assi f'icatilon 'must be reasonable, not arbi'trary,, and must rest upon some ground of diflference having a fair and' substantial relation to the ob j'ect of the legislat.ion, so that all persons similarly c ir cums tan ced sh al l be tr ea ted alike'." (Citations omi,tted.) An exami'nation, of the proposed ordinance reveals several arbitrary classificati'ons, as well as disparate burdens. Vione of' the classi'ftcations appear to have a reasonable basis for their inclusion. or exclusion under the proposed ordinance. For example, certain businesses are faced wi th a total prohibition against smok ing, such as stores , banks, terminals and busses and taxis. Others, such as offices, theatres, arenas, recreati'on halls and restaurarcats, have a partial smoking, prohibition. Stil.l others, such as country clubs,, bars, and the county courthouse,, are exe^pt froW the ordinance. InteTestimgl'~y, the branch courts are not mentioned in the exemptions, which would appear to render then N " "' included in the total ban af feeting, county meeting rooms . 91 0) ~. ~ ~ , . ~

Mr. Jack Ke11ey Tobacco Institute November 20~, 19844 paga -8- For those places which~ are subject to: a par'tial prohibition against smoking,, percentage limitations have generally been imposed to~ define the portion of the building where smoking is allowed. Generally,, fifty percent of the floor space in places where a partial prohibition is in effect would have to be reserved for non-smokers. These percentage limitations do not take into account such factors as the numbez of smokers versus non-smokers utilizing the premises, the size of the premises and" the type and quality of ventilation in use. If the concern is that smoke not permeate the air space of n*n-smokers, clearly the percentage limitaitiions are of little use, since the volume of smoke and the effe.ctiveness~ of the ventilation system~ would determine whether the smoke tr av els in to a'"r es tr i'c te d" ar ea . Moreover, the 50% figure is completely arbi't:ary, since the concentration of smokers versus non,-smokers would be peculiar to, the par ticular bus iness or es tabliishment involved',, the time involved and the nature of the establishment and its clientele. Food service establishasents in particular, would undoubtedly suf fer a large loss in business as ar-esult of the proposed ordinance . IIT Even if we assume that the ordinance is a, valid exercise of the police power of the county, it may still be uniconsti'tuti'onal and/or violativef of state! law due to itss enif or cement pr ov is i ons . Pro posed Sec tion 6. 84 . 20i0 ves ts responsibi'lity in the County Dir ector of Health "to enforce, in behalf of' the County the provisions of the Chapter'" [The Smok ing, o-d'inance]', and' authorizes the Coun ty Director ot Heal th "to prosecute In, the name of' the County, pursuant to the prov is ions of Section 2'5132 of the Gover nmen t Code, civ il actions for the recovery of fines for vi'olations of this chapter made infractions by Section 6.84.190". Government Code Secti'on~ 2'5'13'2 provides: "(a ) Vt'iola tion o f a county ordinance. i~s, a~ misdemeanor unl es~s~ by or d in~ance i~~t~t is made an infraction. Such a violation may be prosecuted by county authior ities in the name of the peopl~e of' the State of California, or redzese& by civil action. (b) Every violation determiined' to be V-8

C Mr. Jack Kelley Tobacco Institute November 20, 1'9'84 Pa ge - 9- an infrac.tioni is punishable by (1) a f iine not exceed ing one hundred d~ollars (~1Oi0) for a first vro ation; (2) a fine not exceeding two hundred dollars (120'0) for a secondvvi©lation of' thee same ordinance within one year; (3) a fine not exceeding, five hundred'' dollars C$'500) foc each ad ditional vro ation of t~~ie: same ordinance wi thin one year." Analysis of Section 25132(a) indicates that the secti'on author izes the County: 1. To, declar e v iola tions of an ordinance to be an infraction in li~eu of a m~isd~emeanor;, 2. To prosecute violations of an ordinance by County au thior i ti es in the name of the People of the Sta te of' California; 3. To seek redress by civil action. In reviewing proposed section 6.84.200, it is apparent that Section 25132 is being interpreted'l to author ize the Coun ty Director of H'ealth to enforce, on behalf of the County, the provi'sions of' the chapter. Specifically. Section, 6'.84.200 provides: '". . The County Director of Health shalll be authiorizedl to prosecute, in the name of the Count , pursuant to the pr ov is ions o Sertxon 25132 of the Government Codie civil actions for the recovery of fines for violations of th isCha p~te~r asadein fr~8c~tions~~ b~y. Secti~on 6'.84.1'90. At the request off the County Director of Health, the County Counsel sha11, in, the name of the County, prosecute cilvil actions pursuant to the provisi'ons of' Sections 6.84.195 for viol'ations of Sections 6 .84.1510 through 6 .84.16'5." (Emphas is. aidded.) Section 6.84'.190 provides:

Mr . Jack Keiley Tobacco Instituze November 20 , 1'9'84 Pa ge -10- C "'t#ny per son who v iola tes the - prohibiti'ions contained in Sections 61.84.055: through 6.8!+.13'9' shall be guilty of an infraction, punishable in the manner prescr ibed hereinafter. Any person who violates Section 6'.84.180 by failing to post the signs or take the other actions required by said Section shall be guilty of an infraction, punishable in the manner hereinafter prescribed." In reviewing the propo'sedl ordinance, it is not cliear, if the diraftees contemplate the prosecution of a violator through the criminal process or, ssimply through a, civil actior. to recover the fine provided for in, the ord'inance. Rega:dless of' what is contemplate4, the proposed enforcemenit prov i'~s ions create concern. Penal Code Section 681 provides: "'Iao person can, be punished for a public offense„ except upon a legal conviction in a court having jurisdicti'on thereof." Penal Code Section 683 prov i'des: "The proceedings by which: a, party charged& with a public offense is accused and brought to tr ia'l and punishment, is known as a criminal action." Penal Code Section 684 provides: ~ "A criminal action is prosecuted in the C~ name of' the People of the State of N Cali formia. "' ~ Hence, a violation of the provisi!ons of the proposed ~ ordirance which violation is declared to be an infraction is 04 subject to the above quoted Penal Code provisions. Gbvernment (A Code Section 25132' enables a county to prosecute violations of ~'. its ordinances by Counity author iti'es in the name of the People . V~-1o