Elements Needed to Prove Smoking Violations In Bars and Restaurants

THE LAW: Labor Code 6404.5(b)

“No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment.”

TO CITE SMOKER: observe person smoking at enclosed place of employment.

TO CITE EMPLOYER:

1. Employer

Definition: a person who has any natural person in service (LC6304, 3300c)

Proof of ownership: business license records, lease, etc.

2. Knowingly or intentionally permit

If employer is not present: need evidence of his or her knowledge

• Prior notice

• Repeat violations

• Ashtrays present, matches provided, cigarettes sold

• Open, obvious practice

Employee actions

• Permit smoking, don’t ask patron to leave

• Continue to serve smoker

• Provide ashtray, matches, cigarettes

Defense: (1) no-smoking signs, and (2) asked patron to stop

Owner has burden of proof

Signs: clear & prominent, at every entrance

Ask patron to stop: when appropriate

• Argument: Includes each time lights up

• Argument: If not enforced like other house rules, owner is just winking at law. Underwood case Alameda County

3. Smoking

Observe actual smoking.

Other evidence: butts, ashes, cigarettes, ashtrays, smoke in the air.

4. Enclosed space

Definition: 4 walls and a ceiling. To be “un-enclosed” space must be missing a minimum of one wall or the ceiling.

Open windows or doors: still enclosed

5. Place of employment

Place where any person works in exchange for personal benefit, any time.

POSSIBLE EXEMPTIONS:

• Tobacco shops? OK (but no alcohol & not attached to bar)

• Hotel lobbies? OK (but no alcohol & not attached to bar)

• Outdoor patios? OK (but not enclosed)

• Owner operator? OK (but rare)

No employees, at any time

No compensation to people working

• 5 or fewer employees? NO Exemption

• Private clubs? NO Exemption

• Breakroom or lounge? NO - Customers may not smoke in employee breakroom

• Ventilation system? None recognized by the State of California

• Employees consent? NO Exemption

This material was developed by Adam Radinsky, Office of the City Attorney Santa Monica CA and distributed by BREATH, The California Smoke-Free Bar Program; a statewide project of the American Lung Association of Contra Costa and Solano Counties. Website: www.breath-ala.org Phone: 916-739-8925

This material made possible by funds received from the Tobacco Health Protection Act of 1988 --Proposition 99, under Grant Number 96-26624 with the CALIFORNIA DEPARTMENT OF HEALTH SERVICES, TOBACCO CONTROL SECTION. September 1999