Smoking Regulations in California


 

The California Indoor Clean Air Act of 1976[i]  declares tobacco smoke as a health hazard for the general public.[ii]  Section 118910 of the California Health and Safety Code states the Legislative intent as not “to preempt the field of regulation of the smoking of tobacco.”  The local governing body can completely ban or regulate the smoking of tobacco in a manner consistent with the laws relating to tobacco smoking.[iii]  The legislature of California also recognizes that “nonsmokers have no adequate means to protect themselves from the damage inflicted upon them when they involuntarily inhale tobacco smoke.”[iv] The legislature understands the necessity of regulating smoking in public places to protect the health, safety, welfare, comfort, and environment of nonsmokers.  It was also the intent of the legislature to eliminate smoking on public transportation vehicles.[v]

Section 118885 of the California Health and Safety Code prohibit smoking of tobacco in designated areas of publicly owned places while a meeting is in process.  According to section 118885, in indoor rooms, indoor chambers, or indoor places of public assembly in publicly owned buildings conducting public business and where public participation is required, there should be a contiguous area of not less than 50 percent of the total area of the room declared as a non-smoking area.  Such area should have sufficient number of signs posted which can readily be seen by everybody stating that smoking of tobacco is prohibited while a public meeting is in progress.[vi]

This requirement can be waived by a public body, commission, agency, or other entity conducting the public meeting provided that the rights of nonsmoking members are not adversely affected.[vii]

Section 5148 of the California Code of Regulations prohibits smoking in workplace.  The Rules prohibit an employer from permitting any person from smoking tobacco products in an enclosed space at the place of employment.[viii]  Employers who permit non employee access to the place of employment on a regular basis should also take reasonable steps to prevent smoking by such non employees.  Such steps include posting clear and prominent signs, stating that smoking is prohibited throughout the building or structure.  A sign stating “No smoking” should be posted at each entrance to the building or structure.  In cases where smoking is permitted in designed areas of the building or structure, a sign stating “Smoking is prohibited except in designated areas” shall be posted at each entrance to the building or structure.  The employer should also request a non employee who is smoking to refrain from smoking in the enclosed workplace.[ix]  

However, for the purpose of § 118885, “reasonable steps” does not include physical ejection of a non employee from the place of employment or making a request to a non employee to refrain from smoking, under circumstances involving a risk of physical harm to the employer or any employee.

In workplaces, the restriction on smoking extends to lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building.[x]

In California, room designation for the purpose of smoking is done by health facilities and clinics after complying with certain procedures.  The health facility or clinic shall make reasonable effort to assign patients to rooms according to the patient’s nonsmoking or smoking preference.[xi]  In case of cafeteria and other dining area having occupied capacity of 50 or more persons, not less than 20 percent area should be designated as a nonsmoking section.[xii]  Signs should also be displayed in such areas stating that such place is a non smoking area.

Health facilities or clinics can however ban smoking in any or all area of such facility or clinic.[xiii]

In every publicly owned building open to the general public for the purpose of exhibiting a motion picture, stage drama, music recital, or other performance, signs should be posted in certain areas designating those areas as places where smoking is prohibited.  Such signs should be posted in sufficient numbers and should be readily visible to people.[xiv]  This exception does not apply to indoor sporting event, and applies only when the building is actually open to the public.[xv]

In case of restaurants situated in publicly owned building serving food or alcoholic beverages in rooms having a capacity of 50 or more persons, smoking should be prohibited in a contiguous area of not less than 20 percent of the serving area.  Signs showing that smoking is prohibited should be posted in sufficient numbers at places where people can readily see them. [xvi]   This rule does not apply to banquet rooms in use for private functions.[xvii]

Smoking is prohibited in retail food production and marketing establishment, during the hours when it is open to the public.[xviii]  This provision does not apply to establishments or to areas in establishments that are set aside for employee smoking and are not open to the public.[xix]

Smoking is generally prohibited on vehicles belonging to the passenger stage corporation, the National Railroad Passenger Corporation, inside aircraft, on public transport system, or on any vehicle of an entity receiving any transit assistance from the state. [xx]  However, it is permitted to the extent permitted by federal law.  In order to enforce these rules strictly, the law also requires that a notice prohibiting smoking should be displayed in writing in English as well as in symbol on all such vehicles or aircraft.[xxi]

The law also mandates that in all transportation service rendered for compensation, there shall be areas designated and posted as “no smoking” areas.  Such area shall be contiguous and shall constitute not less than 75 percent of the area made available as a waiting room for passengers. [xxii]  It is also mandatory that not more than 25 percent of any given area may be set aside for smokers.

Smoking is also prohibited for persons waiting in line to purchase tickets or tokens. [xxiii]  Signs prohibiting smoking shall be displayed for the benefit of the persons waiting in line within the area of the building where tickets or tokens are provided. [xxiv]

These rules on smoking however, do not preempt any local ordinance on the same subject provided the local ordinance is more restrictive to the benefit of the nonsmoker.[xxv]

On coming to know that a public entity has not complied with the requirements of designating or posting of nonsmoking areas, any person can apply for a writ of mandate to compel compliance by such public entity. [xxvi]  If the person succeeds in the suit, he or she may recover all reasonable costs of the suit, including reasonable attorney fees. [xxvii]

In the 1998 case of City of San Jose v. Department of Health Services[xxviii], an action for declaratory and injunctive relief brought by the city against the Department of Health Services was granted.  A declaration was also sought that no provision of state law preempted enforcement by the city of its smoking ordinance at a long-term health care facility located in the city, and also at all long-term health care facilities licensed by Department.  The trial court in this case properly granted injunctive relief to the city.  The court found that the Department’s rules and regulations, to the extent that they were in conflict with the city’s smoking ordinance, exceeded the Department’s rulemaking authority under the Clean Air Act.  The court also found that, because the city’s smoking ordinance was valid, the injunction was the proper remedy to enjoin defendants from enforcing, within the city’s territorial limits, the Department’s smoking rules and regulations that conflicted with the city’s smoking ordinance.

In California, any violation of the smoking rules is an infraction punishable by a fine not exceeding one hundred dollars ($100) for a first violation, by a fine not exceeding two hundred dollars ($200) for a second violation within one year, or by a fine not exceeding five hundred dollars ($500) for a third and for each subsequent violation within one year.[xxix] 

 [i] Cal Health & Saf Code § 118875

[ii] Cal Health & Saf Code § 118880

[iii] Cal Health & Saf Code § 118920(b)(2)

[iv] Cal Health & Saf Code § 118920 (3)

[v] Cal Health & Saf Code § 118920 (c)

[vi] Cal Health & Saf Code § 118885

[vii] Cal Health & Saf Code § 118885

[viii] Id

[ix] Cal Health & Saf Code § 118885

[x]  8 CCR 5148

[xi] Cal Health & Saf Code § 118890 (a)  

[xii] Cal Health & Saf Code § 118890 (b)  

[xiii] Cal Health & Saf Code § 118890 (c)

[xiv] Cal Health & Saf Code § 118895

[xv] Cal Health & Saf Code § 118895

[xvi] Cal Health & Saf Code § 118900

[xvii] Cal Health & Saf Code § 118900 (a)

[xviii] Cal Health & Saf Code § 118915 (a)

[xix] Cal Health & Saf Code § 118915 (b)

[xx] Cal Health & Saf Code § 118925 (a)

[xxi] Cal Health & Saf Code § 118930

[xxii] Cal Health & Saf Code § 118935 (a)

[xxiii] Cal Health & Saf Code § 118935 (b)

[xxiv] Cal Health & Saf Code § 118935 (b)

[xxv] Cal Health & Saf Code § 118940

[xxvi] Cal Health & Saf Code § 118905

[xxvii] Cal Health & Saf Code § 118905

[xxviii]1998 Cal App LEXIS 716

[xxix] Cal Health & Saf Code § 118945