CITABLE SECTION: California Labor Code Section 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.” This law was enacted to prohibit smoking in enclosed workplaces in order to reduce employee exposure to “…environmental tobacco smoke.” In other words, virtually all indoor workplaces in the State of California must be smoke-free.

ELEMENTS OF THIS INFRACTION:

• The bar must be an enclosed place of employment.

• The owner must not knowingly or intentionally permit smoking in a bar or gaming club that is a place of employment.

• “No Smoking” signs must be posted at all entrances.

• Patrons must not smoke inside a bar, tavern, or gaming club that is a place of employment.

• Employees are not liable under this law unless they are smoking in their place of employment.

• Fines - Up to: $100 for first, $200 for second and $500 for third violation

WHEN to Cite:

Smoking is observed inside the establishment and this establishment has at least one employee. Employees do not have to be present for the cite to be applicable to patrons and bar owner. If an owner works part-time and has a part-time employee, the bar must be smoke-free all the time, including during the owner’s shift. If the bar is worked exclusively by the owner, such as mom and pop operations, this section is not applicable.

WHO to Cite:

Bar owners and/or patrons may both be cited under this law. Absent bar owners are also citable by registered mail. Check with your District Attorney.

Employees such as bartenders and servers may be cited only if they are smoking inside the bar. (They are not liable in place of an absent bar owner.) If a bartender or server is smoking behind the bar, they are citable under 6404.5 LC and they are also in violation of California Health and Safety Code Division 104,Part7, Chapter 4 (CA UNIFORM RETAIL FOOD FACILITIES LAW) which is a misdemeanor.

WHAT Evidence to Note:

If an officer decides to cite under this section, classed as a criminal infraction:

• He/she will need to obtain statements from the suspect and witnesses.

• Physical evidence should be noted, such as ash trays on the bar or table, ashes and or cigarette butts on the floor, in ash trays or floating in glasses or beer bottles. Note also, a patron, bartender, server or owner with a lit cigarette in hand and the brand of cigarettes, if possible.

• Presence of “No Smoking” signs posted at entrances as required by law.

• Evidence does not have to be collected, merely noted. Notes should be kept for possible court appearance.

A VALID EXEMPTION:

Owner/Operator
If a bar is worked exclusively by the owners, this section is not applicable. If, however, there is a friend or frequent customer helping out behind the bar and that person is getting free drinks or keeping tips for his/her services, they may be considered an employee.

INVALID EXCUSES:

Five or Fewer Employees
There is no exemption for bars, taverns or gaming clubs with five or fewer employees. If a business has just one employee, smoking is prohibited inside that workplace at all times.

Private Clubs
There is no exemption for private clubs. This includes membersonly clubs, clubs that collect dues and fraternal organizations. If the club or organization has compensated workers, the club and patrons are citable under this law. If they are operated by volunteers who receive no monetary compensation and no “personal benefit” in exchange for their work (such as discounts, free services or tips) this law is not applicable.

Open Doors and Windows
Opening doors and windows does not constitute an open space. “Enclosed space” is defined as a space with four walls and a roof. This state law does allow smoking outdoors, including on decks, patios and porches that are not enclosed. Check local ordinances for stricter outdoor smoking restrictions.

Ventilation Systems
There are no ventilation systems recognized by the State of California that relieve bar owners and patrons of the obligation to obey the law.

This information is taken from a Memo to Patrol Officers by Sgt. Art Kirts, Santa Clara County Sheriff’s Office and BREATH The California Smoke-free Bar Program. Phone: 1-800-622-2829 breath@jps.net May 1999
(practical guide)