HomeMy WebLinkAbout1994-10-11 - AGENDA REPORTS - PROPOSITION 188 TOBACCO (2)Cit, a a er pproval
em to be presented by:
Michael P. Murphy"y
CONSENT CALENDAR
DATE: October 11, 1994
SUBJECT: Proposition 188: Local Preemption: Tobacco Control
DEPARTMENT: Management Services
Proposition 188, the California Uniform Tobacco Control Act, will appear on the November 8,
1994, California general election ballot. The initiative measure, sponsored in large part by
the Philip Morris Tobacco Company, seeks to establish a statewide tobacco regulation policy.
Under current law, local governments have the authority to regulate smoking and sale of
tobacco products within specified parameters. Proposition 188, among other provisions,
would repeal existing tobacco control ordinances, such as Santa Clarita Municipal Ordinance
94-8, and prohibit local governments from enacting ordinances in this subject area.
Proponents argue that local government authority to enact tobacco control measures creates
a patchwork of tobacco regulations which vary from community to community. Even with
the passage of Assembly Bill 13 earlier this year, local governments still retain legislative
authority in the area of tobacco control.
Opponents argue that the initiative seeks to weaken existing tobacco control laws and
strikes at the heart of local governments' ability to respond to local concerns.
The nearly year long process which the City of Santa Clarita undertook to enact a tobacco
control measure is a good example of local government responsiveness to unique local
concerns. Furthermore, Proposition 188 places enforcement of non -workplace aspects of the
statewide smoking restrictions on local governments with no enforcement funds other than
fine revenues.
The issue before the City Council is not the specific provisions of the initiative as they relate
APPROWED Agenda Item—Lo.
to designated smoking areas, but rather the issues of local preemption and a local
enforcement mandate. Therefore, it is appropriate that the City Council oppose Proposition
188.
Oppose Proposition 188.
ATTACHMENT
Text of Proposition 188
[ MPM.tc 188 ]
Smoking and Tobacco Products. Local Preemption.
Statewide Regulation. Initiative Statute.
Official Title and Summary Prepared by the Attorney General
SMOKING AND TOBACCO PRODUCTS. LOCAL PREEMPTION.
STATEWIDE REGULATION. INITIATIVE STATUTE.
• Repeals and preempts local smoking and tobacco regulations. Repeals and replaces existing
statewide smoking and tobacco regulations_ Permits amendment of tobacco regulations by
two-thirds vote of Legislature.
• Bans public smoking with significant exceptions. Permits smoking sections in restaurants and
employee cafeterias with conditions. Bars not regulated. Permits smoking in private offices, and
business conference rooms with occupants' consent. Exempts from smoking regulations gaming
clubs, bingo establishments, racetracks, sports facility private boxes and smoking lounges.
• Regulates location of tobacco vending machines and billboards- Increases penalties for tobacco
purchases by minors.
Summary of Legislative Analyst's
Estimate of Net State and Local Government Fiscal Impact:
• Likely, but unknown, annual increase in state and local government health care costs and state
tobacco tax revenues.
• State enforcement costs of less than $1 million annually.
,Proposition 188: Text of Proposed Law
This initiative measure is submitted to the people in accordance. with the
provisions of Article 11, Section 8 of the Constitution.
This initiative measure amends, repeals, and adds sections to various codes;
therefore, existing provisions proposed to be deleted are printed in striheovt-lgpe
and new provisions proposed to be added are printed in italic type to indicate tlh�at
they are new..
PROPOSED LAW
SECTION L The People of the State of California find and declare that:
(a) The current regulation of smoking in public in California is inadequate in
that there are insufficient statewide standards for regulating smoking in
restaurants, office buildings, and other public places.
(b) There is a wide variance in the local regulation of smoking. Some localities
provide little or no protection to those who wish to avoid secondhand smoke in
such places, while others overregulate to the extent that in at least one city a
person may be fined for smoking on the sidewalk or in the street.
(c) There is a clear need for uniform statewide regulation of smoking in public.
to assure those interested in avoiding secondhand tobacco smoke have the same
protections wherever they go in the state and that those who do smoke have fair
notice of where smoking is prohibited.
(d) There must be stricter statewide controls to curb the illegal sale of tobacco
products to minors, including the regulation of tobacco products vending
machines. Further, the advertisement of tobacco products near schools must be
restricted.
SEC. 2. To accomplish the goals act forth in Section 1, the People enact this
measure to provide for the statewide regulation of smoking in restaurants, other
public places and the workplace, and for statewide restrictions on the marketing
and distribution of tobacco products through the regulation of sales to minors,
tobacco products vending machines, and billboard advertising near school
grounds.
SEC. 3.. This act shall be known and may be cited as the California Uniform
Tobacco Control Act.
SEC. 4.; Division 10 (commencing with Section 25800) is added to the
Business and Professions Code, to read:
DIVISION 10. REGULATION OFSMOKING
CHA ER 1. GFNEI PROVISIONS
25800. For purposes of this division, the following definitions shall apply:.
(a) "ASHRAE Standard 62-1989" means the standard approved by the
.American Society of Ileating, Refrigerating and Air -Conditioning Engineers, Inc.
in 1989 as ASHRAE Standard 62-1989, "Ventilation for Acceptable Indoor Air
Quality"and approved by the American National Standards Institute in 1991. The
standard is also designated "ANSI/ASHRAE 621989."
(b) "Bar' means an area that is devoted to the service of alcoholic beverages for
consumption on the premises and in which the serving oflood, if any, is incidental
to the consumption of alcoholic beverages. When a bar is located within a building
in conjunction with another use, including, but not limited to, a restaurant, only
the area used primarily for the consumption of alcoholic beverages shall constitute
a bar. The dining area shall not constitute a bar, even though alcoholic beverages
may be served therein.
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(c) "Private office"means a room within a building in which no more than one
person works that is enclosed by floor to ceiling walls and an operable door.
- (d) `Public place" means any enclosed indoor area open to the general public,
including, but not limited to, a theater, educational facility, health facility, retail
services establishment, retail food production and market establishment,
gymnasium, health spa,library, museum, and gallery. "Public place" does not.
include a workplace, restaurant, or bar.
(e) "Restaurant" means any roffeeshop, cafeteria, short-order cafe, luncheonette,.
diner, sandwich shop, soda fountain, and any other eating establishment which.
gives, sells, or offers for sale food to the general public for consumption on the
premises. "Restaurant"does not include a'Dar"as defined in this section
to "Workplace" means any enclosed indoor area in which oneor more
individuals are employed on a full-time basis and to which thegeneral public does:
not have access, except by .specific invitation. Notwithstanding the preceding
sentence, "workplan"does not include a prison, jail or other correctional facility
and does not include a work area in a private residence other than a licensed
family day care home during its hours of operation and in those areas where
children are present,.
CHAPTER 2. RESTAURAN(5
25806. Smoking is prohibited in any restaurant, except as otherwise provided
in this chapter.
25808. (a) The prohibition of Section 25806 shall not apply to any restaurant.
to which both of the following apply;
(1) Smoking is confined to designated areas not exceeding 25 percent of the
seating capacity.
(2) Ventilation is provided in accordance with the recommended ventilation
rates specified for dining rooms and cafeterias in Table 2 of ASHRAE Standard
62.1989 or in accordance with the requirements of the indoor air quality procedure
described in ASHRAE Standard. 62 1989.. If a restaurant elects to prouide
ventilation. in accordance with this paragraph, the restaurant shall keep anthe
premises a written certification, provided at least once a year by the contractor who
maintains the ventilation system, that the system meets the applicable provisions
of ASHRAE Standard 62-1989.
(b) Any restaurant permitting smoking shall post a sign on the exterior of the
building at each point of public entrance stating that smoking and non-smoking
sections are available.
25810. The prohibition of Section 25806 shall not apply to rooms in
restaurants being used for private functions.
25812. Nothing in this chapter shall be construed to prevent the owner of any
restaurant from prohibiting smoking entirely on any premises under his or her
control.
CHAPTER 3. WORKPLACES
.25814. Smoking. is prohibited in any workplace, except as othermise provided
in this chapter.
25816_ (a) The prohibition of Section 25814 shall not apply to any workplace
(1) Any private office or, with the consent of all occupants, any conference room
if ventilation is provided to that office or. room in accordance with the
recommended ventilation rates specified for offices in Table 2. of ASHRAE
Standard 62.1989 or in accordance with the requirements of the indoor air quality
procedure described in ASHRAE Standard 62-1989.
(2) Any employee cafeteria where smoking is confined to a single area not
.exceeding 25 percent of the seating capacity of the cafeteria, and ventilation is
provided in accordance with the recommended ventilation rates specified for
dining rooms and cafeterias in Table 2 of ASHRAE Standard 62-1989 or in
accordance with the requirements of the indoor air quality procedure described in
,ASHRAE Standard 621989.
(3) Designated smoking lounges if ventilation is provided in accordance with
the recommended ventilation rates specified for smoking lounges in Table 2 of
ASHRAE Standard 62-1989 or in accordance with the requirements of the indoor
air quality procedure described in ASHRAE Standard 62-1989.
(b) If an employer elects to. provide ventilation in accordance with subdivision
(a), the employer shall keep on the premises a written certification, provided at
least once a year by the contractor who maintains the ventilation system, that the
system meets the applicable provisions of ASHRAE Standard 62.1989.
25818. Smoking is prohibited in any company vehicle unless all those present.
in the vehicle consent..
25820. Nothing in this chapter shall be construed to prevent an employer from
prohibiting smoking entirely on any premises under his or her control
Cau reR 4. Pusue Puces
25822.. Smoking is prohibited in any public place, except as otherwise prouided
in this chapter.
25824. Smoking may be permitted in no mare than 25 percent of the concourse.
area of any bowling alley and the lobby areas of any hotel, motel or other lodging
facility. -
25826.. The prohibition of Section 25822 shall not apply to any of the following
places:
(a) Hotel and motel rooms rented to guests, unless they are: designated
non-smoking rooms by management.
(b) Establishments devoted primarily to the retail sale of tobacco products or to
the operations of a manufacturer of tobacco products.
(c) Hotel and motelconference or meeting rooms, and public and private
assembly rooms, while these places are being used for private functions..
(d) Gaming clubs registered pursuant to Chapter 5 (commencing with Section
19800) of Division 8, facilities used to conduct bingo games pursuant to Section
326.5 of the Penal Code, racetracks, and private boxes and separate smoking
lounges in indoor and outdoor sports arenas.
25828. Nothing in this chapter shall be construed to prevent the owner or
lessee of any public place from prohibiting smoking entirely on any premises under
his or her controt..
CHAPTER 5. SIGNS
25836. Smoking and non-smoking areas designated pursuant to this division
shall be clearly indicated by the posting of signs.
CHAPTER 6. VENDING MACHINES
25840. It is unlawful to sell tobacco products at retail through a vending
machine unless the vending machine is located in one of the following areas:
(a) In an area of a factory, business, office, or other place that is not open to the
general public.
(b) On any public premises, as defined in Section 23039, to which persons under
the age of 21 years are denied access pursuant to Section 25665.
(c) On other premises to which persons under the age of 18 years are not
permitted access:
(d) In any other place, but only if the machine is operated by the activation of an
electronic switch by the licensee, or by an employee of the licensee, prior to each
purchase..
25842. The person liable for a violation of Section 25840 is the person
authorizing the installation or placement of the tobacco products vending machine
upon premises he or she manages or otherwise controls and under circumstances
in which he or she has knowledge, or otherwise should have grounds for
knowledge, of the violation. -
CHAPTER 7. Bru wueos -
25844.. No person shall advertise or muse to be advertised tobacco products on
any outdoor billboard located within 500 feet of any public or private elementary
school, junior high school, or high school- This prohibition. shall not apply to
advertisements erected or maintained at street level and affixed to .business
establishments selling tobacco products at retail.:
CHAPTER 8. EsFmCEMENT
25850. Thepromsions of Chapter 3shall be considered occupational safety and
health standards under the California Occupational Safety and Health Act of 1973
as amended and shall be enforced as standards under that act.
25852. Except as provided in Section 25850, everypperson who smokes in
violation of this division, every person in charge of a ploce where. smoking is
prohibited by this division who knowingly permits smoking in violation of this
division,. every persars who fails to post a sign required by this division and every
person who violalesany other prohibition in'his division, shell be guilty of an
infr¢clion ppunishable by a fuic not to exceed Otte hundred dollars ($100) for n first
violation, by ¢fine not to exceed two hundred dollars ($200) far a second violation
within arse year, or by a fine not to exceed flue hundred dollars ($500) for o Third
violation and for each subsequent violation within one year.
SEC. 5. Article 1 of Chapter 10.8 (commencing with Section 25940). or
Division 20ofthe Health and Safety Cade is repealed
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SEC. 6. Section 25949.6 of the Hea1tN and Safety Code is repealed
SEC- 7. Section 308 of the Penal Code is amended to read:
308. (a) (1) Every person, Firm , or corporation which that knowingly sells,
gives, or in any way furnishes to another person who is under the age of 18 years
anytobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or
any other instrument or paraphernalia that is designed for the smoking or
ingestion of tobacco, products prepared from tobacco, or any a controlled
substance, is subject to either a criminal action for a misdemeanor or to a civil
sction brought by a city attorney, a county counsel, or a district attorney,
for�- five hundred dollars ($500) for a first violation, ane thousand
dollars ($1,000) for a second violation within two years of the first violation, two
thousand dollars ($2,000) for a third violation within two years of the second
violation, and two thousand dollars ($2,000) for any violation within two years of
-a violation subsequent to the third violation. '
(2) A fine imposed on a person, firm, or corporation for a violation of this
subdivision that is a first violation or that occurs more than two years after any
other violation of this subdivision shall be waived and any subsequent violation of
this subdivision shall be deemed a first violation if the person, firm, or corporation
clearly establishes that he, she, or it acted in good faith to prevent the violation and
that the violation occurred despite the exercise of due diligence by the person, firm,
or corporation. For purposes of this paragraph, a person, firm, or corporation shall
be deemed to have exercised due diligence if the person, firm, or corporation
complies with subdivisions (d) and (e).
(3) Notwithstanding Section 1464 or any other provisionbf law, 25 percent of
each civil and criminal penalty collected pursuant to this subdivision shall he paid
to the office of the city attorney, county counsel, or district attorney, whoever is
responsible for bringing the successful action, and 25 percent of each civil and
criminal penalty collected pursuant to this subdivision shall be paid to the city or
county for the administration and cost of the community service work component
provided in subdivision (b) (c) .
(4) Proof that a defendant, or his or her employee or agent, demanded, was
shown, and reasonably relied upon evidence of majority shall be a defense to any
action brought pursuant to this subdivision. Evidence of majority of a person is a
facsimile of or a reasonable likeness of a document issued by a federal, state,
county, or municipal government, or subdivision or agency thereof, including, but
not limited to, a motor vehicle operator's license, a registration certificate issued
under the Federal federal Selective Service Act, or an identification card issued to
a member of the armed forces.
(b) For purposes of this section, the person liable for selling or furnishing
tobacco products to minors by a tobacco products vending machine shall be the
person authorizing the installation or placement of the tobacco vending machine
upon premises be or she manages or otherwise controls and under circumstances
in which he or she has knowledge, or should otherwise have grounds for
knowledge, that the tobacco products vending machine will be utilized by minors..
(i9 (c) Every person under the age of 18 years who purchases or receives any
tobacco, cigarette, or cigarette pappeers, or any other preparation of tobacco, or any
other instrument or paraphernalia that is designed for the smoking of tobacco,
products prepared from tobacco, or any controlled substance shall, upon
conviction, be punished by a fine of fifty -dall-a($50) five hundred dollars ($500)
or 25 100 hours of community service work,
W (d) Every person, firm, or corporation which that sells-, or deals in tobacco
or any preparation thereof, shall post conspicuously and keep so posted in his, her,
or their place of business �, at each point of purchase
within the premises, a sign, no smaller than 8'/2 by II inches, staling the following
in no smaller than 28 point type:
NOTICE—SECTION 308 OF THE PENAL CODE PROHIBITS THE SALE OF
TOBACCO PRODUCTS TO PERSONS UNDER 18 YEARS OF AGE AND THE
PURCHASE OF TOBACCO PRODUCTS BY PERSONS UNDER 18 YEARS OF
AGE.
Any such person failing to do so shall upon conviction be punished by fine of
ten dollar one hundred dollars ($100) for the first offense and fifty-doHara
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(" two hundred dollars ($200) for each succeeding violation of this provision, or
by imprisonment for not more than 30 days.
The Secretary of State is hereby authorized to have printed sufficient copies of
this act to enable him or her to furnish dealers in tobacco with copies thereof upon
their request for the same.
(e) Every person, firm, or corporation that sells, or deals in tobacco or any
preparation thereof, shall notify each individual employed by the person, firm, or
corporation as a retail sales clerk that state law prohibits the sale of tobacco
ro
pducts to any person under 18 years of age and the purchase of tobacco products
by any person under 18 years of age. This notice shall be provided before the
individual commences work as a retail sales clerk or, in the case of an individual
employed as a retail sales clerk on the datewhen this subdivision becomes
operative, within 30 days of that date. The individual shall signify that he or she
has received the notice required by this subdivision by signing a form stating as.
follows: "I understand that state law prohibits the sale of tobacco products to
persons under the age of 18 and the purchase of tobacco products by persons under
the age of 18. I promise, as a condition of my employment, to observe this law."
Each form signed by an individual shall indicate the date of signature. The
employer shall retain the form signed by each individual employed as a retail sales
clerk until 120 days after the individual has left the employer's employ. Any
employer failing to comply with the requirements of this subdivision with respect to
any employee shall upon conviction be punished by a fine of ane hundred dollars
($100) for the first offense and two hundred dollars ($200) for each succeeding
violation of this subdivision, or by imprisonment for not more than 30 days.
(d) (f) For purposes of determining the liability of persons, firms, or
corporations controlling franchises or business operations in multiple locations for
the second and subsequent violations of this section, each individual franchise or
business location shall be deemed a separate entity.
(g) In addition to other efforts to ensure compliance with this section, every
county sheriff, city police chief, and other head of a law enforcement agency
responsible for enforcing subdivision (a) shall at least annually conduct
unannounced inspections at randomly selected locations where tobacco products
are sold or distributed. A person under the age of 18 may be employed to test
compliance with subdivision (a) only if the testing is conducted under the direct
supervision of a peace officer acting within the scope of his or her official duties
and written parental consent for the person's participation has been obtained.
Except as provided in this subdivision, every person who, for the purpose of testing
compliance of another with subdivision (a), solicits, employs or otherwise aids a
minor in the purchase or attempted purchase of any tobacco, cigarette, or cigarette
papers, or any other preparation of tobacco, or any other instrument or
par¢phernalia that is designed for the smoking of tobacco, products prepared from
tobacco, or a controlled substance, is guilty of a misdemeanor.
(h) The Attorney General shall prepare for submission annually to the Secretary
of the United States Department of Health and Human Services the report
required by Section 1926 of Subpart II of Part B of Title XIX of the federal Public
Health Service Act (42 U-S.C. Sec. 300x26).
SEC: 8. Consistent with the finding in Section 1 of this act, the people find.
and declare that the need for uniform statewide regulation, as set forth in this act,
is a matter of statewide concern and uniform statewide regulation of smoking in
public places, bars, restaurants, and workplaces, as well as the sale, distribution,
advertising, sampling, promotion, or display of tobacco products, is required to
maximize public awareness of, and compliance with, this act and is warranted
because these activities do not vary from county to county or city to city. This act
shall apply, without limitation, to a city, county, and city and county, including
charter city, charter county, or charter city and county. It is the People's intent to
regulate the subect matter of this act comprehensively and to occupy the field to
the exclusion oil local action. Notwithstanding any other provision of law, no
ordinance or regulation of any city, county, city and county, including a charter
city, charter county, or charter city and county, or other political subdivision of
this state, or any local ordinance or regulation adopted by the use of an initiative
or other ballot measure, shall in any way attempt to regulate the sale,
distribution, advertising,sampling, promotion; or display of tobacco products, or
smoking in public places, restaurants, bars, or workplaces.
SEC. 9. The amendment of Section 398 of the Penal Code by this act shall not
be construed to in any way affect other statutoryprohibitions before or hereafter
enacted on the distribution of controlled substance paraphernalia to minors or
possession of such paraphernalia, including, but not limited to, Sections 11364,
11364.5, and 11364.7 of the Health and Safety Code.
SEC. 10. This act may be amended by a statute passed by a two-thirds vote of
the membership of each house of the Legislature.
SEC. 11. If any provision of this act or its application to any person or
circumstance is held invalid; this shall not affect other provisions or applications
of this act that can be given effect without the invalid application and to this end
the provisions of the act are severable.
SEC. 12. This act shall become effective on the first day of July of the year
following its enactment.
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