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CHIEF LEGISLATIVE ANALYST

Date: December 2, 2009

To: Honorable Members ofthe Los Angeles City CouncilGerry F. Mi11e1"~Chief Legistiifife ~al~st Assignment No. 09-12-1799Council File No. 08-0923

From:

Subject: Medical Marijuana Facilities & Policy Issues

On November 24,2009 you requested our office to provide a report relative to variousunresolved policy issues relative to medical marijuana facilities. To address your request we metwith staff from the Planning Department, the Police Department, and the Office of the CityAttorney. The policy issues that you asked us to follow up are the following:(a) A potential cap on the number of collectives citywide.(b) A cap on the employee salary of medical marijuana dispensaries.(c) Restrictions to access patients records.(d) Amendments to allow patients to obtain medical marijuana at more than one location inemergency situations.(e) State law restricting smoking in nursing and long-term care facilities.(f) Audits of medical marijuana dispensaries.(g) Medical Marijuana Collective Request for Proposals (RFP) process.(h) Pre-Interim Control Ordinance (ICO) 186 Medical Marijuana Dispensaries.FINDINGS(a) Cap on the number of collectives Citywide:Council directed us to look into placing a cap on the number of dispensaries Citywide either by.Community Planning Areas of which there are 35 throughout the City, or by Police DepartmentDivisions, of which there are 21 located in the four Police bureaus in the City (Central, South,Valley, and West).Placing a cap on the number of dispensaries by Community Plan Areas is a feasible approachbecause its geographical boundaries do not change, and therefore, are more stable. The onlyinstance where there would be a change to the boundaries of Community Plan Areas would be ifthe City were to expand its current geographical boundaries (469.3 square miles) throughannexation.

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Inaddition, placing a cap on the number of dispensaries by Community Plan Areas instead ofPolice Divisions avoids any over-concentration based on geography, inasmuch as there are moreCommunity Plan Areas than Police Divisions. A cap on the number of dispensaries byCommunity Plan Areas would mitigate economic market forces from driving dispensaryoperators to certain areas of the City where commercial rental rates may be lower than in othermore affluent geographical areas of the City. Therefore, caps by Community Plan Areas wouldprovide a statistical distribution that is evenly distributed and not skewed to certain geographicalsections of the City that may already be saturated with challenging land uses.Planning Department Location Analvsis:We have reviewed the Community Plan Areas location analysis prepared by the Planningepartment-(-Attachment+)-based-on-a-500.foot-and-1000.foot-radius-from-sensitive-use-areas.-. ------The Planning Department analysis presumes that medical marijuana dispensaries would locate ineither commercial or industrial zones, resulting in approximately 18,000 acres citywide in whichmedical marijuana facilities could be located based on a 500-foot radius and approximately12,000 acres based on a 1000-foot radius. However, it is important to consider Note 4 ofAttachment 1, which states the acreage is likely overstated because the Planning Departments'sland use database does not include actual land uses. Since commercial zones allow residentialuses by right and therefore may include residential and mixed uses buildings, the PlanningDepartment would have to do a case-by-case review to determine if residential land uses existwithin the specified radius.While this information is useful as a guide for identifying the potential areas in which facilitiesmay be located, both our office and the Planning Department conclude that this methodology, onits own, would not be useful in determining the number of potential medical marijuana facilitiesas it could yield thousands of locations.Alternative Approach on Cap Using Statewide Data:We obtained statistical data as to the total number of cities Statewide that have authorizedmedical marijuana dispensaries. This data was obtained from a January 18, 2007 report from thePolice Commission to the Public Safety and Planning and Land Use Management Committees.The data shows that the total Statewide population of all the cities (including Los Angeles) thatauthorize and have medical marijuana dispensaries is 6,003,870, with a total 1,235 square miles,and 247 dispensaries. Therefore, we used this base statistical information to arrive at the totalpotential 165 Citywide medical marijuana dispensaries based on population by using thefollowing mathematical formula:

"247 (total dispensaries Statewide) /6,003,870 (total population of cities allowingdispensaries) 4.11 (ratio of dispensaries per person) x 4,003,457 (Los Angelespopulation) =165 (potential maximum number of medical marijuana dispensaries in LosAngeles)."

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We believe this is a reasonable approach for determining a cap of 165 dispensaries in the City.However, in discussions with the Planning Department and Police Department and as discussedearlier this report, the cap should be coupled with a limit in a geographical area so there is not anover-concentration of medical marijuana facilities in a single area. We concur with the PlanningDepartment recommendation to use Community Plan Areas. Attachment 2 of this reportidentifies by Community Plan Area, the number of facilities that may be located in the area basedon a cap of 165. We have also included for your information as Attachment 3 a distribution ofthe proposed 165 cap by Police Division.As a matter of information, using the same calculation based on square miles (247 dispensaries in1,235 square miles, 469 square miles in the City), it would yield a cap of 94 medical marijuana

(b) Medical Marijuana Employees & Salary Caps:Council directed us to look into placing a salary cap to limit the employee salaries of a medicalmarijuana establishments to ensure that compensation does not exceed industry standards fornonprofit organizations such as the United Way or other like entity. We contacted the City'sCommunity Development Department (CDD) to find out if the City places salary caps on othernon-profit entities.CDD staff indicates that they enforce limits on salary and bonuses for executive level employeespaid with Department of Labor (DOL) and Employment and Training Administration (ETA)funded programs only. This limit is established by the State Employment DevelopmentDepartment (EDD) in compliance with DOL and Workforce Investment Act requirements. The2009 maximum annual salarylbonus amount is $177,000, according to a directive released in July2009. CDD does not limit recipient salaries beyond these requirements.CDD reports that agencies may pay their employees more than this amount, but they cannot useDOL funds beyond the established limit. The Department further states that the DOL fundedprograms RFPs reference compliance with all DOL regulations, but do not specifically call outsalary restrictions.If the Council chooses to impose a salary cap, the draft ordinance could include the limitestablished by EDD or any other amount the Council may chose.

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(c )Restrictions to access patients records:Pursuant to the adoption of Council Item 10D, the City Attorney has prepared a revised proposedordinance addressing limited access to patient medical information held by medical marijuanacollectives. The proposed ordinance language (revised November 30,2009) is contained insections 45.l9.6.l B [Definitions], 45.l9.6.2 E [Registration Form], 45.l9.6.4 [Maintenance ofRecords], and 45.l9.6.6 [Inspection and Enforcement Responsibilities]. The various sectionsread as follows:

45.19.6.1 B [Definitions] - "Private medical record." Documentation of themedical history of a qualified patient or person with identification card. "Privatemedical records" shall not include the recommendation of an attending physicianfor medical marijuana for a qualified patient, an identification card, or thedesignation of a primary caregiver by a qualified patient or by a person with an

45.19.6.2 E [Registration Form] - E. Registration Form. Upon receipt of aDepartment of Building and Safety pre inspection report and a Certificate ofOccupancy verifying compliance with the standards set forth in Section 45.19.6.3A of this article, and following compliance with the location priority statusprovisions set forth in Section 45.19.6.2 C ofthis article, the collective shalljile aregistration form with the Department of Building and Safety. The registrationform shall require the following accurate and truthful information: the addressand physical description (e.g., one-story commercial building, etc.) of the locationat and upon which the collective is located; the name, telephone number, andaddress of a person authorized to accept service of process for the collective; thename (s), telephone number(s), and address(es) of each member engaged in themanagement of the collective; the onsite telephone number at the collective andthe name ofthe member engaged in the management ofthe collective who isresponsible for receiving. logging. and responding to complaints regarding thecollective; and any other information reasonably required to show that thecollective complies with this article.In addition. the registration form shall confirm the consent by the collective.without requirement for a search warrant. subpoena or court order. for theinspection and copying by the Police Department ofthe recordings a'nd recordsrequired to be maintained under Sections 45.19.6.3. 45.19.6.4. and 45.19.6.5 ofthis article. except that private medical records shall be made available by thecollective to the Police Department only pursuant to a properly executed searchwarrant. subpoena. or court order.45.19.6.4 [Maintenance of Records] - A medical marijuana collective shallmaintain records at the location accurately and truthfully documenting: (1 ) thefull name, address, and telephone number(s) of the owner, landlord and/or lesseeof the location; (2 ) the full name, address, and telephone number(s) of allmembers who are engaged in the management of the collective and the exactnature of each member's participation in the management of the collective; (3)thefull name, address, and telephone number(s) of all patient members to whomthe collective provides medical marijuana and a copy of every attendingphysician's recommendation or patient identification card;

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(4) the full name. ad ss. and telephone number(s) of all pril 'v caregivermembers to whom the collective provides medical marijuana and a copy of evervwritten designation(s) by the primary caregiver's qualified patient(s) or theprimary caregiver's identification card: (5 ) written documentation of allcircumstances under which the collective provided medical marijuana to a non-member. including but not limited to the recipient's full name. address. anptelephone number. amount of medical marijuana received and medicalemergency justification: (6) all receipts oUhe collective. including but not limitedto all contributions, reimbursements. and reasonable compensation. whether incash or in kind, and all expenditures incurred by the collective for the cultivationof medical marijuana; (7 ) an inventory record documenting the dates, amounts,and content testing results of marijuana cultivated at the location, including theamounts of marijuana stored at the location at any given time; (8 ) a logdocumenting the date. nature. and response by the collective to all complaintsreceived by the collective pursuant to Section 45.19.6.3 B.18 ofthis article: (9) acopy oUhe annual audit reports required pursuant to Section 45.19.6.5 A oUhisarticle: (10) the testing log required to be maintained pursuant to Section4.1-9~6.G of this article.' and (-1-lj-proofofregistr-ation-with-the-Department-of---------Building and Safety in conformance with Section 45.19.6.2 of this article,including evidence of an accepted registration form. These records shall bemaintained by the collective for aperiod offive years and shall be made availableby the collective to the Police Department upon request, except that privatemedical records shall be made available by the collective to the PoliceDepartment only pursuant to a properly executed search warrant. subpoena. orcourt order. In addition to all other formats that the collective may maintain,these records shall be stored by the collective at the location in a printed formatin itsfire-proof safe. Any loss, damage or destruction of the records shall bereported to the Police Department within 24 hours of the loss, destruction ordamage. In addition to all other formats that the collective may maintain, theserecords shall be stored by the collective at the location in a printed format in itsfire-proof safe. Any loss, damage or destruction of the records shall be reportedto the Police Department within 24 hours of the loss, destruction or damage.45.19.6.6 [Inspection and Enforcement Responsibilities] - The Department ofBUilding and Safety may enter and inspect the location of any collective betweenthe hours of 10:00 a.m. and 8:00 p.m., or at any reasonable time, to ensurecompliance with Section 45.19.6.3 A of this article. In addition, a designated unitwithin the Police Department may enter and inspect the location of any collectiveand the recordings and records maintained pursuant to Sections 45.19.6.3,45.19.6.4, and 45.19.6.5 of this article between the hours of 10:00 a.m. and 8:00p.m., or at any reasonable time, to ensure compliance with this article, except thatthe inspection and copying of private medical records shall be made available tothe Police Department only pursuant to a properly executed search warrant.subpoena. or court order.It is unlawful for any owner, landlord, lessee, member (including but not limitedto a member engaged in the management), or any other person having anyresponsibility over the operation of the collective to refuse to allow, impede,obstruct or interfere with an inspection, review or copying of records and closed-circuit monitoring authorized and required under this article, including but notlimited to, the concealment, destruction, and falsification of any recordings,records, or monitoring.

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(d) Amendments to allow patients to obtain medical marijuana at more than onelocation in emergency situations:Pursuant to the adoption of Council Item 10M, the City Attorney has prepared a revisedproposed ordinance addressing limited access to medical marijuana by a collectivemember from a different collective during an emergency situation. The proposedordinance language (revised November 30, 2009) is contained in section 45.19.6.3 B.15[Conditions of Operation] and reads as follows:

15. No qualified patient, person with an identification card, or primarycaregiver may be a member of more than one collective located within the City,except that in the event of a medical emergency, a qualified patient, person withan identification card, orprimary caregiver may obtain medical marijuanasufficient to meet that medical emergency from another collective in the City. Inaddition to all other required documentation, for a medical emergency, thequalijiedpatie]lCpJ!r~OJ1 with an identification card, or l2.rimarYcareg-eiv-'-er'---'-sh___l _provide written proof of the medical emergency and, as applicable, his or herattending physician recommendation, identification card, and, in the case of aprimary caregiver, the patient designation to both the member's collective and tothe collective that is distributing the emergency medical marijuana. This writtendocumentation shall be maintained in the records of both collectives;

(e) State law restricting smoking in nursing and long-term care facilities:Pursuant to the adoption of verbal Motion 10AA (AlarconlLaBonge), the City Attorneyhas prepared a revised proposed ordinance addressing state and local laws pertaining tosmoking in assisted living facilities. As advised by the City Attorney's office, state andlocal law currently provide exceptions to allow smoking in designated areas of residentialhealth care facilities, and reference material provided by the City Attorney's office isattached (Attachment 5). Accordingly, the proposed ordinance was revised (revisedNovember 30, 2009) with specific amendments contained in sections 45.19.6.3 A.2[Preinspection Requirements] and 45.19.6.3 B.13 [Conditions of Operation]. The varioussections read as follows:

45.19.6.3 A.2 [Preinspection Requirements] - 2. No collective shall be located ona lot abutting, aC1 oS'Sth e sh ee l 0 1 a l1eyfi om, 0 1 h a tJ il tg common C Ottlet w ith a lotimproved with an exclusively residential building or with a mixed use buildingcontaining residential units. This provision shall not apply to a collective that isalso a licensed residential medical or eldercare facility;45.19.6.3 B.13 [Conditions of Operation] -13. Medical marijuana may not beinhaled, smoked, eaten, ingested, or otherwise consumed at the location, in theparking areas of the location, or in those areas restricted under the provisions ofCalifornia Health and Safety Code Section 11362.79. This prohibition shall notapply to a qualified patient's use of marijuana for his or her own medical needs ifthe qualified patient's permanent legal residence is the location, nor shall thisprohibition limit the exceptions provided in local and state law that permitsmoking in designated areas within licensed residential medical and eldercarefacilities,'

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(IJAuditsofmediealmarijuana dispensaries:Pursuant to the adoption of Amending Motion lO X (Huizar/Cardenas), the City Attorneyhas prepared a revised proposed ordinance addressing an annual audit of medicalmarijuana collectives. The proposed ordinance language (revised November 30, 2009) iscontained in section 45.19.6.5 A [Annual Audits] and reads as follows:

A. Annual Audits. No later than February 15 of every year, eachcollective shall file with the City Controller an audit of its operations of theprevious calendar year, completed and certified by an independent certifiedpublic accountant in accordance with generally accepted auditing and accountingprinciples. The audit shall include but not be limited to a discussion, analysis, andverification of each of the records required to be maintained pursuant to Section45.19.6.4 of this article.

(g) Medical Marijuana and Request for Proposals (RFP) Proeess:This policy issue cannot be addressed at this time until Council decides on a cap as to the totalnumber collectives Citywide, and until a decision is made whether the Council will givepreference to the pre- Interim Control Ordinance (ICO) 186 medical marijuana dispensaries.In terms of how the RFP process would specifically work in this context, the CLA can work withthe City Attorney's office on some preferred suggestions and language. The CLA has alreadystarted discussing this issue with the City Attorney's office, but we have deferred any specificlanguage until it is known how the caps and priority issues are resolved.(It) Pre-Interim Control Ordinance aCO) 186Medical Marijuana Dispensaries:As you know, 186 medical marijuana dispensaries registered under the provisions of the 2007ICO. The City Attorney conducted a review of these Pre..,ICO facilities and has determined that137 remain open and 49 have closed or moved. An excerpt of the City Attorney presentation onthis issue which identifies the changes by Council District is contained in Attachment 4.

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ATTACHMENTl

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ATTACHMENT 2

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ATT ACHMENT 5

SECTIONS OF THE CALIFORNIA STATE LABOR CODESPECIFICALLY RELATING TO SMOKING IN ENCLOSED WORKPLACES

(SECTIONS 6404 8- 6404.5)6404.

No employer shall occupy or maintain any place of employment that is not safe and healthful.

6404.5.(a) The Legislature finds and declares that regulation of smoking in the workplace is a matter ofstatewide interest and concern. It is the intent of the Legislature in enacting this section toprohibit the smoking of tobacco products in all (100 percent of) enclosed places of employment in thisstate, as covered by this section, thereby eliminating the need of local governments to enact workplacesmoking restrictions within their respective jurisdictions. It is further the intent of the Legislature to cre-ate a uniform statewide standard to restrict and prohibit the smoking of tobacco products in enclosed-places-of-employment,as-specified-in-this-section;in-order-to-reduce-employee-exp-osore-to-environiil""e=n=-- ----tal tobacco smoke to a level that will prevent anythingother than insignificantly harmful effects to exposedemployees, and also to eliminate the confusion and hardship that can result from enactment orenforcement of disparate local workplace smoking restrictions. Notwithstanding any other provision ofthis section, it is the intent of the Leqislature that any area not defined as a "place of employment" pur-suant to subdivision (d) or in which the smoking of tobacco products is not regulated pursuant to sub-division (e) shall be subject to local regulation of smoking of tobacco products.(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.(c) For purposes of this section, an employer who permits any non-employee access to his or her

place of employment on a regular basis has not acted knowingly or intentionally if he or she hastaken the following reasonable steps to prevent smoking by a non-employee:

(1) Posted clear and prominent signs, as follows:(A) Where smoking is prohibited throughout the building or structure, a sign statingIINo smoking" shall be posted at each entrance to the building or structure.

(B) Where smoking is permitted in designated areas of the building or structure, a signstating "Smoking is prohibited except in designated areas" shall be posted at eachentrance to the building or structure.

(2) Has requested, when appropriate, that a non-employee who is smoking refrain from smoking in'the enclosed workplace. For purposes of this subdivision, "reasonable steps" does not include:(A) The physical ejection of a non-employee from the place of employment or

, '(B) Any requirement for making a request to a non-employee to refrain from smoking, under cir-cumstances involving a risk of physical harm to the employer or any employee.

(d) For purposes of this section, "place of employment" does not include any of the following:(1) Sixty-five percent of the guest room accommodations in a hotel, motel, or similar

transient-lodging establishment.(2) Areas of the lobby in a hotel, motel, or other similar transient lodging establishment

designated for smoking by the establishment. An establishment may permit smoking in a desig-

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( ;'I.nated lobby area that does not exceed 25 percent of the total floor area of the lobby or, if the totalarea of the lobby is 2,000 square feet or less, that does not exceed 50 percent of the total floorarea of the lobby. For purposes of this paragraph, "lobby" means the common public area of anestablishment in which registration and other similar or related transactions, or both, are conductedand in which the establishment's guests and members of the public typically congregate.

(3) Meeting and banquet rooms in a hotel, motel, other transient lodging establishment similar to a hotelor motel, restaurant, or public convention center, except while food or beveragefunctions are taking place, including setup, service, and cleanup activities, or when the room is beingused for exhibit purposes. At times when smoking is not permitted in a meetingor banquet room pursuant to this paragraph, the establishment may permit smoking incorridors and pre-function areas adjacent to and serving the' meeting or banquet room if rio employ-ee is stationed in that corridor or area on other than a passing basis. '

(4) Retail or wholesale tobacco shops and private smokers' lounges. For purposes of thisparagraph:(A) "Private smokers' lounge" m e a n s - a n y enclosed area in or attached to a retail or

wholesale tobacco shop that is dedicated to the use of tobacco products, including,but not limited to, cigars and pipes.(B) "Retail or wholesale tobacco shop" means any business establishment the main purpose of .which is the sale of tobacco' products, including, but not limited to, cigars; pipe tobacco, andsmoking accessories, .

(5) Cabs of motortrucks, as defined in section 410 of the Vehicle Code, or truck tractors, as defined insection 655 of the Vehicle Code, if no nonsmoking employees are present.

(6) Warehouse facilities. For purposes of this paragraph, "warehouse facility" means a warehouse facil ity (with more than 100,000 square feet of total floor space, and 20 or fewer full-time employees work-ing at the facility, but does not include any area within a facility that isutilized as office space. .

(7) Gaming clubs, in which smoking is permitted by subdivision (f). For purposes of thisparagraph, "gaming club" means any gaming club, as defined in section 19802 of the Businessand Professions Code, or bingo facility, as defined in section 326.5 of the Penal Code, thatrestricts access to minors under 18 years of age.

(8) Bars and taverns, in which smoking is permitted by subdivision (t). For purposes of thisparagraph, "bar" or "tavern" means a facility primarily devoted to the serving of alcoholicbeverages for consumption by guests on the premises, in which the serving of food isincidental. "Bar or tavern" includes those facilities located within a hotel, motel, or other similar tran-sient occupancy establishment. However, when located within a building inconjunction with another use, including a restaurant, "bar" or "tavern" includes only those areasused primarily for the sale and service of alcoholic beverages. "Bar" or "tavern" does not includethe dining areas of a restaurant, regardless of whether alcoholic beverages are served therein.

(9) Theatrical production sites, if smoking is an integral part of the story in the theatricalproduction.

(10) Medical researchor treatment sites,ifsmoking is integralto the research and treatmentbeing conducted.

(11) Privateresidences,except for private residences licensed as family day care homes, during the hours ofoperation as familydaycare homes and in those areaswhere chi~drenare present.

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(12) Patient smoking areas in long-term healthcare facilities, as defined in section 1418 of the Health andSafety Code.

(13) Breakrooms designated by employersfor smoking, provided that all of the following condtions ~e met:(A) Air from the smoking room shall be exhausted directly to the outside by an exhaust fan. Air from

the smoking room shall not be recirculated to other parts of the building.(B) The employer shall comply with any ventilation standard or other standard utilizing appropriate

technology, including, but not limited to, mechanical, electronic, and biotechnical systems,adopted by the Occupational Safety and Health Standards Board or the federal EnvironmentalProtection Agency. If both adopt inconsistent standards, the ventilation standards of theOccupational Safety and Health Standards Boardshall be no less stringent than the standards adopted by the federal EnvironmentalProtection Agency.

(C) The smoking room shall be located in a non-work area where no one, as part of hisor her work responsibilities, is required to enter. For purposes of this paragraph,"work responsibil ities" do not include any custodial or maintenance work carried out in the-----.b-reakroom when it is unoccupied.

(D) There are sufficient nonsmoking breakrooms to accommodate nonsmokers.(14) Employerswith a total of fiveor fewer employees,either full-timeor part-time,may permit smoking where

all of the following conditions are met:(A) The smoking area is not accessible to minors.(B) 'AII employees who enter the smoking area.consent to permit smoking. No one, as part of his or

her work responsibilities, shall be required to work in an area where smoking is permitted. Anemployer who is determined by the division to have used coercion toobtain consent or who has required an employee to work in the smoking area shall besubject to the penalty provisions of section 6427,

(C) Air from the smoking area shall be exhausted directly to the outside by an exhaust fan. Air fromthe smoking area shall not be recirculated to other parts of the building.(D) The employer shall comply with any ventilation standard or other standard utilizingappropriate technology, including, but not limited to, mechanical, electronic, andbiotechnical systems, adopted by the Occupational Safety and Health Standards Boardor the federal Environmental Protection Agency. If both adopt inconsistent standards, the venti-lation standards of the Occupational Safety and Health Standards Board. shall be no less stringent than the standards adopted by the federal Environmental ProtectionAgency.

This paragraph shall not be construed to (i ) supersede or render inapplicable any condition orlimitation on smoking areas made applicable to specific types of business establishments by any otherparagraph of this subdivision or ( i j ) apply in lieu of any otherwise applicable paragraph of this subdivisionthat has become inoperative.(e) Paragraphs (13) and (14) of subdivision (d) shall not be construed to require employers to

provide reasonable accommodation to smokers, or to provide breakrooms for smokers ornonsmokers.

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((f ) (1) Except as otherwise provided in this subdivision, smoking may be permitted in gaming clubs, as

defined in paragraph (7) of subdivision (d), and in bars and taverns, as defined inparagraph (8) of subdivision (d), until the earlier of the following:

(A) January 1, 1998.(B) The date of adoption of a regulation (i ) by the Occupational Safety and Health Standards

Board reducing the permissible employee exposure level to environmental tobacco smoke to alevel that will prevent anything other than insignificantly harmful effects to exposed employeesor ( i i ) by the federal Environmental Protection Agency eatablishinq a standard for reduction ofpermissible exposure to environmental tobacco smoke to an exposure level that will preventanything' other than insignificantly harmful effects to exposed persons.

(2) If a regulation specified in subparagraph (B) of paragraph (1) is adopted on or before January1,1998, smoking may thereafter be permitted in gaming clubs and in bars and taverns, subject to fullcompliance with, or conformity to, the standard in the regulation within two years following the dateof adoption of the regulation. An employer failing to achieve compliance with, or conformity to, theregulation within this two-year period shall prohibit smoking in the gaming club, bar, or tavern untilcompliance or conformity is achieved.If the Occupational Safety and Health Standards Board and the federal Environmental ProtectionAgency both adopt regulations specified in subparagraph (B) of paragraph (1) that are inconsistent,the regulations of the Occupational Safety Standards Board shall beno less stringent than the regulations of the federal Environmental Protection Agency.

(3) If a regulation specified in subparagraph (B) of paragraph (1) is not adopted on or beforeJanuary 1, 1998, the exemptions specified in paragraphs (7) and (8) of subdivision (d) shall beinoperative on and after January 1, 1998, until a regulation is adopted. Upon adoption of such aregulat ion on or after January ,1,1998, smoking may thereafter be permitted in gaming clubs and inbars and taverns, subject to full compliance with, or conformity to, the standard in the regulationwithin two years following the date of adoption of the regulation. An employer failing to achievecompliance with, or conformity to, the regulation within this two-year period 'shall prohibit smoking inthe gaming club, bar, or tavern until compliance or conformity is achieved. If the OccupationalSafety and Health Standards Board and the federal Environmental Protection Agency both adoptregulations specified in subparagraph (B) of paragraph (1) that are inconsistent, the regulations ofthe Occupational Safety and Health Standards Board shall be no less stringent than the regulationsof the federal Environmental Protection Agency. '

(4) FrqmJanuary 1, 1997, to December 31,1997, inclusive, smoking may be permitted ingaming clubs, as defined in paragraph (7) of subdivision (d), and in bars and taverns, as defined inparagraph (8) of subdivision (d), subject to both of the following conditions: '(A) If practicable, the gaming club or bar or tavern,shall establish a designated

nonsmoking area.(B) If feasible, no employee shall be required, in the performance of ordinary work

responsibilities, to enter any area in which smoking is permitted.

(\

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(g)-The-smokingprohibition set-forth-in this section shall constitute a uniform statewide": -_.~~~-~-- ..~.--~standard for regulating the smoking of tobacco products in enclosed places of employmentand shall supersede and render unnecessary the local enactment or enforcement of localordinances regulating the smoking of tobacco products in enclosed places of employment.Insofar as the smoking prohibition set forth in this section is applicable to all (100 percent of) places ofemployment within this state and, therefore, provides the maximum degree ofcoverage, the practical effect of this section is to eliminate the need of local governments toenact enclosed workplace smoking restrictions within their respective jurisdictions.

(h) Nothing in this section shall prohibit an employer from prohibiting smoking in an enclosedplace of employment for any reason,

(j ) The enactment of local regulation of smoking of tobacco products in enclosed places ofemployment by local governments shall be suspended only for as long as, and to the extentthat, the (100 percent) smoking prohibition provided for in this section remains in effect. Inthe event this section is repealed or modified by subsequent legislative or judicial action sothat the (100 percent) smoking prohibition is no longer applicable to all enclosed places ofemployment in California, local governments shall have the full right and authority to enforce previously-:e=n""a=c'ted, and~to enact anaenforce new, restrictions on the smOKingof tobaccoproducts in enclosed places of employment within their jurisdictions, including a completeprohibition of smoking. Notwithstanding any other provision of this section, any area not defined as a"place of employment" or in which the smoking is not regulated pursuant tosubdivision (d) or (e), shall be subject to local regulation of smoking of tobacco products.

G ) Any violation of the prohibition set forth in subdivision (b) is an infraction, punishable by afine not to exceed one hundred dollars ($100) for a first violation, two hundred dollars ($200)for a second violation within one year, and five hundred dollars ($500) for a third and foreach subsequent violation within one year. This subdivision shall be enforced by local lawenforcement agencies including, but not limited to, local health departments, as determinedby the local governing body.

(k) Notwithstanding section 6309, the division shall not be required to respond to any complaintregarding the smoking of tobacco products in an enclosed space at a place of employment,unless the employer has been found guilty pursuant to subdivision (j) of a third violation ofsubdivision (b) within the previous year.

(I ) If any provision of this act or the application thereof to any person or circumstances is heldinvalid, that invalidity shall not affect other provisions or applications of the act that can begiven effect without the invalid provision of application, and to this end the provisions of thisact are severable.

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Sm oking O rdinance - LosAngeles Municip al C od e S ectio n 4 1.5 0S ec . 4 1.50 . S mo king P roh ibited in D esignated A rea s.(Am ended by ard. N o. 159,49 8, E ff. 12/15/84. )A . Definitions:T he follo wing w ords and ph rases, w henever u sed in this ordinance sha ll be construed as hereina fter seto ut, u nless it shall be a pp arent fro m the context th at they h av e a d i ff er en t mean ing ." Ba rtl sh all m ea n a n ind oo r a rea u tilized p rim arily fo r th e serv ing o f a lc oh olic bev era ges a nd in w h ic h th eservice o f fo od is o nly incidenta l to th e co nsum ption of such beverag es. (Ad ded by O rd. N o. 162,9 89 ,Eff . 117/88. )1. "Em ployee" shall m ean any person w ho is employed by any employer in considera tion fo r

m o neta ry c om p en sa tio n o r p ro fit2. "E mp loy er" sh all m ea n a ny p erson, pa rtnersh ip , corpora tion, ex clu ding m unicipal corpo ra tio n,

w ho em ploys the services o f m ore than four persons. (Am ended by Ord , N o. 169 ,790 , E ff.619/94. )

, 3 . "P lace of em ployment" sha ll m ean any enclosed area under the control o f a public or privateem plo yer w h ic h em plo yees no rm ally freq uent d uring th e c ou rse o f em plo ym ent, inclu ding , bu tnot lim ited to , w ork a rea s, em ployee lo ung es, co nference ro om s, and em ployee cafeteria s. Ap riv ate resid enc e is no t a pla ce o f em plo ym ent.

" Serv ic e L ine" s ha ll m e a n any indo or line a t w h ich o ne or m ore persons are w aiting for or receivingservice of any kind, w hether or not such serv ice invo lves the exchange of m oney . (Added by Ord, No.1 62, 989 , E ff. 117/88. )4. "Sm oke" or "Sm oking" shall include the canying or ho lding of a ligh ted pipe, cig ar o r c iga rette

o f a ny k ind , o r a ny o th er lig hted sm ok ing eq uip ment o r th e lig hting o r em itting o r ex ha ling th esm oke of a pipe, cig ar or cig arette o f any kind .

B . P rohibition:, It sh all beu nla w fu l to sm ok e in th e fo llo w ing p la ces:

1. T hose po rtions of any bu ilding , struc ture or other enclosed fac ility open to the genera l public fo rth e p rim ary p urp ose o f ex hibiting a ny m otio n p ictu re, sta ge p ro du ctio n, m usic al rec ita l, o rsim ila r p erfo rm anc e. H ow ev er, sm ok ing m ay be p erm itted ind es ig na ted a re as o f lo bb ies .(Added by o - a N o. 162,989 , Eff. 117/88. )

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2. Any room , cham ber, indoor place of m eeting o r indoor public assem bly , w herein publicbusiness is co nd ucted and w hich is o pen to m em bers o f the g enera l public eith er as pa rtic ipa ntso r as spec ta to rs. (Am ended by Ord . N o. 164 ,776 , E ff. 6/3/89.)

3 . Those'a reas w ith in the.build ings or . .stru ctu res o f a ny h ea lth c are fa cility w h ic h a re o pen tov isito rs to th e p rem ises ex cep t th at in su ch areas there m ay be enclo sed areas d esig na ted andset a side on each floor w here sm oking m ay be allow ed.

4 . Any reta il food m arketing establishm ents including g rocery sto res and superm arkets excepttho se areas o f such establishm ents set a side fo r th e serv ing o f fo od and- dr i nk, r es tr oo rn s, a ndo ffices and a rea s th ereo f no t o pen to the pu blic .

5. S erv ice lines in those areas of bu ild ings. open to the public , except those lines in sto res.. .. . sp ecia lizing in the sa le o f to ba cco pro duc ts. (A dded by Ord . N o. 16 2,9 89 , E ff. 117/88.)

6 . Those indoor a reas of libra ries, m useum s and a rt g alleries o pen to the pu blic . (A dded by O rd .No . 1 62 ,9 89 ,E ff . 117/88.)

7. T hose indoor a reas of reta il sto res open to the public , except reta il sto res specia lizing in th e s aleoftobacco products. (Added by Ord . N o. 162,989 , E ff. 117/88.)

8. Indoor po lling places. (Added by O r d , N o. 162,989 , E ff. 117/88.)9 . Those indoor a reas norm ally occupied by children in p riva te elem entary and secondary schools,

p riva te c hild da y care fac ilities as defined in S ectio n 1596 .750 o f the H ealth a ndS afety C od e, and priva te residences licensed as ch ild day c are fa cilities during the ho urs o fopera tion as such a fac ility . (Added by Ord . N o. 162,989 , E ff. 117/88.)

10 . (Amended by Ord . N o . 168,844 , E ff. 8/2/93.)a . Indoor restaurants, except as set fo rth in pa rag raphs b and c below .b. Restau rants w ith a sea ting capac ity of m o re than 50 persons loca ted in a dance club,

ex clu ding fro m th at c alc ula tio n o f c ap ac ity a ny p ortio n o f su ch fa cility w h ic h is lo ca tedo utdo ors and /o r w hich is u tilized a s a bar, sha ll h ave a po rtio n o f the d in in g areadesig na ted a s a no n-sm ok ing area . T he no n-sm ok ing a rea req uired by th is para gra phm ust be a contiguously m ainta ined indoor a rea com prised of a t least 50 % of bo th thesea ting ca pacity and flo or spa ce o f the area in w hich custo mers are being served .

c . The p rohibition set fo rth in parag raphs a and b above, sha ll no t apply to any portion ofa restaurant w hich is u tilized as a ba r, o r to any roo ms w hich are being used for priv a tefu nc tio ns, bu t o nly w h ile a ny su ch ro om s a re u sed fo r su ch p riv ate fu nc tio ns.

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11. T hose po rtions open to the genera l public o f any a rena , gym nasium o r o ther sim ila r enclosedb uild ing d esig ned p rim a rily fo r th e p urp ose o f o bserv ing sp orts ev ents. H o w ev er, sm o king m a ybe perm itted in designa ted area s oflobbies. (A dded by Ord . N o. 162,989 , E ff. 117/88.)

12. T ra in, c ru ise sh ip , and bus depot w aiting area s and ticket lines a s regu la ted pursuant to H ealthand S afety C o de S ectio n 259 49 .4 . V io la tio n o f, o r fa ilu re to c om ply w ith th e pro visio ns o fH ea lth a nd S afety C o de S ec tio n 259 49 .4 sh all b e p un ish ab le a s set fo rth in H ealth and S afetyC ode S ection 25949 .8. (Am ended by Ord . N o. 170 ,386 , E ff. 3 /17/95.)

13 . (Am ended by Ord . N o. 170 ,386 , E ff. 3 /17/95.) Any po rtion ofa build ing ow ned by the C ity ofL os A ng eles, and th ose po rtio ns o f a bu ild ing leased by the C ity o f L os A ng eles, ex cep t th at:a . W a iting area s and ticket lines in the Los Angeles H arbor cru ise sh ip tennina ls sha ll be

-------.. ..re""gu rn 'la tea a s set-f6 i'tllin S uO-div ision 12aoove; ana '

b . Restau rants inany build ing o wned by the C ity of L os Ang eles o r inth ose p ortio ns o f abu ild ing leased by the C ity o f L os A ng eles sh all be reg ula ted a s set fo rth in S ubd iv isio n10 a bo ve.

14 . A irport ticket lines as regula ted pu rsuant to H ea lth and S afety C ode S ection 25949 .4 , andp ub lic c irc ula tio n a re as a nd p ub lic w a itin g r oom a rea s .(e xc ep t f or in tr an sit lo un ge s w h ic h sh allbe 75% by a rea , no sm oking ). It is the purpo se o f th is S ubd iv ision to p ro hibit, pursuant to thea u th o r it y con ta ined inH ealth a nd S afety C od e S ec tio n 259 49 .6 , sm oking ina ir p or t p ubl icc i rc u la ti on a r ea s , a r i d a irp ort pu blic w a iting ro om a reas, V io la tio n o f, o r fa ilu re to co mply w ithth e pro visio ns o f H ealth and S afety C od e S ectio n 259 49 .4 sh all be p unisha ble as set fo rth inH ea lth and S afety C ode S ection 25949 .8. (A dded by Ord . N o. 170 ,386 , E ff. 3 /17/95.)

15. N otw ithstand ing the prov isions o f pa rag raph c of S ubd iv ision 10 o f S ubsec tion B andS ubsec tio n F o f S ec tio n 4 1.50 , sm o kin g sh all be p ro hibited in ba rs lo ca ted in a irp ort term ina ls.(A dded by O rd . N o. 170 ,386 , E ff. 3 /17/95.)

C . Regu la tion of Sm oking inP la c es o f Emp lo ymen t:(F irst u nnum bered pa ra grap h am end ed by O rd , N o. 16 2,989 , E ff. 117/88.)T he p lac es su bjec t to reg ula tio n pu rsua nt to S ubdiv isio ns 1,2,3 ,4 ,8, a nd 9 o f S ubsectio n B sha ll no t bed eem ed p la ces o f em plo ym ent fo r p urp oses o f th is su bsec tio n.T h e f ollo w in g r eg ula tio ns a pp ly . t o p la ces o f em p lo ym e nt:

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1. W ithin one hundred tw enty (120 ) days of the effective date of this ordinance, each em ployershall adopt, im plem ent a nd m ainta in a w ritten sm oking policy w hich shall conta in at a m inim um , .p ro vis io ns r ela ted to th e f ollow in g:a . The prohibition of sm oking in cafeterias, restroom s, eleva tors and nurses aid stations or

sim ila r fa cilities fo r th e trea tm ent o f employees, (Am ended by Ord. N o. 168,844, E ff.8/2/93.)

b. The provision and m aintenance of a contiguous non-sm oking area of not less than two-thirds of the seating capa city and floor space in lunchroom s a nd em ployee lounges.(Am ended by Ord. N o. 168,844, Eff. 8/2/93.)

c. A sta tem ent p ro vid ing th at in a ny d isp ute a rising betw een sm ok ers a nd no n-sm ok ers,efforts shall be m ade by the em ployer to accom modate the desires of both sm okers andnon-smokers.

It shall be the responsibility of em ployers to provide sm oke-free w ork areas for non-sm okers to them ax im um ex tent possiblebut em ployers a re not required to incur a ny expense to m ake struc tural oro th er p hy sic al m o dific atio ns in p ro vid ing th es e 'a rea s. An em ployer w ho m akes reasonable efforts todevelop and prom ulgate a policy regarding sm oking a nd nonsm oking in the wo rk p la ce sh all be d eem edto be in com pliance w ith this pa ragraph, provided that a policy w hich designa tes an entire w ork placea s a sm oking area shall not be deem ed in com pliance w ith this paragra ph.

d . An em ployer shall post "N o S moking" signs in any a rea designated a s a non-sm okingarea.

2. T he sm ok ing p olicy shall be co mm unica ted in w riting to a ll c urrent em plo yees w ith in th reew eeks of the date of adoption, and to all future em ployees at the tim e of their entry intoemployment.

3. N otw ithstanding the a bove, every em ployer shall have the authority to designate any w ork areaas a non-smoking area.

4~ An em ployer w ho fails to adopt a sm oking policy , or w ho fails to post signs ina ny a readesignated a s a no n-sm oking a rea a s req uired by S ubd iv isio n 1s ha ll b e inv io la tio n o f s aidsu bd iv isio n. S uch a v io la tio n sh all be p unish able a s a m isd em ea no r.

D . S igns a nd O ther M anagem ent R esponsibilities: (T itle and S ection am ended by Ord , No.16 2,9 89 , E ff. 117/88.)

1. Signs.a . The person having the authority to m anage and control any a rea designated as a non-

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sm oking a rea pursuant to S ubd iv isions 5 and 10 o f S ubsection B sha ll p lace o r causedto be p la ced a nd p ro minently d isp la yed , a nd sh all m ainta in "N o S m ok ing " sig ns inc on sp ic uo us lo ca tio ns w i th in s aid a rea s. A ll s uc h s ig ns s ha ll c lea rly a nd c on sp ic uo us lyrec ite th e p hra se "N O S M OK IN G " a nd lo r u se th e interna tio na l no -sm ok ing sym boland sha ll c ite S ection 41.50 o f the L os Angeles M unic ipa l C ode. T he signs sha ll be o fsu ffic ient nu m ber a nd lo ca tio n to c au se th e m ess ag e o f th e s ig ns to be c lea rly v is ible,leg ib le a nd r ea d ab le .

b. T he person hav ing the authority to m anage and contro l any a rea designa ted as a non-sm ok ing a rea pursuant to a ll o ther p rov isions o f S ubsections B or C , sha ll post o r causeto be p osted a nd p ro minently d isp lay ed , a nd sh all m ainta in "N o S m ok ing " sig ns inc on sp ic uo us lo ca tio ns w i th in s aid a rea s. A ll s uc h s ig ns s ha ll c lea rly a nd c on sp ic uo us ly

. rec ite the ph ra se tlN O S M OK IN G " a nd lor use th e interna tiona l no -sm ok ing sy mbo l------'an~ asillills iteS ection 41:-50 ofllie L O S A ilg eles M u niC ip al C o de. T he sig ns sh all be

posted no t less than 5 feet no r m ore than 8 feet above floor level and sha ll be o fsu ffic ient num ber and location to cause the m essage o f a t least one o f the signs to bec le ar ly v is ib le , le gib le a nd r ea d ab le .

2. T he person hav ing the au tho rity to m anage and contro l those restau rants subjec t to S ubd iv ision10 o f S ubsectio n B w ith both sm oking a nd non-sm ok ing sectio ns sh all be resp onsible fo rensu ring th at p atro ns a re a sk ed th eir p referenc e fo r sea ting in eith er th e sm o king o r no n-smo kin g s ec tio n.

3 . V io la tions.a . V io la tion o f, o r fa ilu re to com ply w ith the prov isions o f S ubd ivision I o f th is subsection

sh all be p unish able a s a m isd em ea no r.b. V io la tion o f, or fa ilu re to com ply w ith the prov isions of S ubd iv ision 2 o f th is subsection

s ha ll b e p un is ha ble a s a n in fr ac tio n.E . I O th er A gen cy C o o pera tio n:F ed era l, S ta te, C o unty , p ublic sc ho ol a nd sp ec ia l d istr ic t o ffic ia ls a re u rg ed to ena ct a nd enfo rc ep ro visio ns sim ila r to th e p ro visions co nta ined herein. (A mend ed by O rd . N o. 16 2,9 89 , E ff. 1 1 7 1 8 8 . )F . E xcep tions:T he p ro hibitio n set fo rth in S ubsection B a nd C sh all not a pp ly to p riva te enclo sed o ffices o ccu piedex clu siv ely by sm ok ers even th ou gh su ch a n o ffice m ay be v isited by no n-sm ok ers, o r to th ose p ortio nso f ba rs open to the public , (Am ended by Ord . N o. 162,989 , E ff. 1 1 7 1 8 8 . )G. Implementation;

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E m plo yers sh all im plem ent th e p ro visio ns o f th is sec tio n in a m anner co nsistent w ith a ll a pp lica ble S ta teo r F ed era l s ta tu tes , ru les o r reg ula tio ns , o n em p lo yer-em p lo yee rela tio ns.H . Penalties:1. Itsh all be u nla w fu l to w illfu lly m utila te o r d estro y a ny sig ns req uired by th is sec tio n.2: It shall be unlaw fu l to sm oke in any area posted as a no n-sm ok ing a rea .3. Itshall b e u nla w ful fo r a n em ploy er to d isch arg e o r in a ny m anner d iscrim inate a ga inst a ny ,

em ploy ee w ho ex erc ises h is or h er rig hts u nd er this section ifth e d om ina nt intent o f th eemp loyer i s r eta li ati on against th e em plo yee fo r ex erc ising th ose rig hts. V io la tio n o f thisprov ision sha ll be a m isdemeanor, '

4. E xcep t a s o th erw ise ex pressly p ro vid ed h erein, v io la tio n o f a ny p ro visio n o r fa ilu re to co mp lyw ith a ny requ irem ent of this s ec ti on is a n in fr ac tio n.Sec . 41.50 .5 . S ignag e R eg ula tio ns fo r P la ces S ubject to R eg ula tio n P ursua nt to L abor C od e S ectio n640 4 .5 '(Added by Ord. N o. 172 ,4 87 , E f t: 4 /1 2/ 99 .)All em ployers subjec t to the provisions o f L abo r C ode S ection 6404 .5 sha ll post, o r cause to bep osted a nd p ro minently d isp la yed , sig ns' c onta ining th e fo llo w ing p hra se "T o R ep ort V io la tio ns o f L abo rC o de S ec tio n 6404 .5 Cal l 1-888-333-0730". T his phrase m ay be included on the sam e signs requiredby L abo r C ode S ection 6404 .5 , or on add itiona l signs. T he signs shall be posted a t each entrance toth e bu ild ing o r stru ctu re. V io la tio n o f, o r fa ilu re to com ply w ith th e p rov isions of th is sec tio n sh all be'punishable as set forth in L abor C ode S ection 6404.5(j) .Sec . 41.51. S m ok ing in E lev ato rs P ro hib ited .(a ) It sha ll be unlaw ful fo r any person to light, ignite o r otherw ise set fire to , or sm oke, carry , th row

o r d ep osit a ny lig hted cig ar, cig arette o r o ilier sm old ering o r sm ok e-p ro du cing su bsta nc e w ith inany public or private eleva to r open to use by the general public. (Added by Ord, No. 146,792,Eff. 1 1 1 2 1 7 5 . )

(b) E very person having the a '!lthq rity to m anage and control prem ises w herein elevato r service isprovided for use by the genera l public shall post "N O S MOK lN G" signs in a ll such elevators.S uch sig ns sh all be c lea rly v isible a nd rea da ble. S uch sig ns sh all cite S ec tio n 41.51 of theM unicipa l C ode and state tha t persons sm oking in elevato rs are subjec t to a fine. (Added byOId. N o. 146,792, Eff. 1 1 1 2 1 7 5 . )

(c) N otw ithstand ing any o ther provision of this C ode, vio la tion o f this sec tion is an infraction.(Added by OId. N o. 153,590 , Eff. 511l/80.)

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S ec . 4 1.5 2. Smo k in g inBuses.N o p erso n sh all sm o ke o r p ossess a ny bu rning c ig arette, c ig ar o r p ip e w h ile o n a ny m o to r bu s o r o th erv eh ic le o per ated f or th e pu rpo se o f tr an spo rti ng per so ns f or hire w i th in th e C ity o f L os A ng eles a lo ng ar eg u la r r ou te, a nd p ic kin g u p o r d is ch arg in g su ch p as sen gers inthe c i ty s tr ee ts . (Added by .Ord . No.127,50 8, E ff. 6 /29/64 .) ,No tw i th sta nd in g a ny o ili er p ro v is io ns o ftb is Code, v io la ti on o ftb is s ec ti on i s a n i nf ra c ti on . (Adde d byDrd. No . 1 53 ,5 90 , E ff. 5 11 1180 .).

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P ossible A pp lic a tio n o f L abo r C od e 6 40 4.5 to B oa rd a nd C a re F ac ilitiesT o: A na Jo hnson a nd N ora M a nza nillaD ate: M ay 23~ 20 06F ro m : T heresa B osc hertC a lifo rnia 's C lea n A ir P ro jec t

916-739-8925L abo r C o de 6 40 4.5, the C a lifo rnia S m ok e-free W o rkp la ce A ct, a pp lies to a ll ind oo rw o rk pla ces ex cep t th ose sp ec ific a lly d esc ribed in sec tion L C 640 4.5( d ) a s no t being a"p la ce o f em plo ym ent" fo r the p urp oses o f th is la w . T he ex cep tio ns inc lud e6 40 4 .5(d )(12): " Pa tient sm o king a rea s in lo ng -term h ea lth c are fa cilities , a s d efined in__ sec tio n-1418_o fth e_H ea lth ..a nd_S a fety_C o_de._"H ea lth a nd S afety C od e sec tio n 1418 rea ds a s fo llo w s:1418. As used in this chapter:

(a) "Long-term health care facilitytr means any fa'cility licensedpursuant to Chapter 2 (commencing with Section 125 0) that is any ofthe following:' '

(1) Skilled nursing facility.(2) Intermediate care facility.(3) Intermediate care facility/developmentally disabled.(4) Intermediate care facility/developmentally disabled

habilitative.(5 ) Intermediate care facility/developmentally disabled--nursing.(6) Congregate living health facility.(7) Nursing facility.(b) "Long-term health care facility" also includes a pediatric day

health and respite care facility licensed pursuant to Chapter 8.6(commencing with Section 1760).(c) "Long-term health care facility" does not include a general

acute care hospital or an acute psychiatric hospital, except for thatdistinct part' of the,hospital that provides skilled nursingfacility, intermediate care facility, or pediatric day health andrespite care facility services.

(d) "Licensee" means the holder of a license issued under Chapter2 (commencing with Section 125 0) or Chapter 8.6 (commencing withSection 1760) for a long-term health care facility.

D oes a bo a rd and ca re hom e fa ll w ith in th is d efinitio n is th e firs t q u estio n , T o answ erth is , o ne w o uld h ave to d isco ver w h ether o r no t th e fa cility is licensed und er H S sec tio n1250 , C hap ter 2 o r a lso under H S sec tion 1760 , C hap ter 8.6 . An ex am ina tio n o f th efa cility 's license w o uld seem to be a rea sona ble first s tep .If th e fa cility d oes fit w i th in th e d efinitio n o f " lo ng -term h ea lth c are fa cility ", th e nex tq uestio n is w h at constitu tes "p atient sm ok ing a rea s" w i th in su ch a fa cility . W e believ eth at "p atient sm ok ing a rea s" a re in tend ed to be a sp ec ific desig na ted a rea w i th in thefa cility , no t the entire fa cility a nd no t th e g enera l w o rk a rea o f fa cility em plo yees. L abo rC o de 6 40 4 .5 w a s intend ed to p ro vid e w o rk pla ce p ro tec tio n fro m th e c anc er-c au sing

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effec ts o f S eco nd H and S m oke fo r v irtua lly a ll C alifo rnia w orkers. T o m eet tha t purposesepa ra te, d isc rete "pa tient sm oking a rea s" w o uld be needed to reduce the im pac t o fsm oke on the genera l popu la tion and sta ff o f the fac ility . C om m on w ork a rea s su chha llw a ys, lo bbies, d ining a rea s, ex erc ise ro om s etc . w o uld no t lo gica lly be "pa tientsm oking a reas" . S ince it is essentia l fo r non-sm ok ing em ployees to enter these a rea s on aregu la r ba sis in o rder to ca rry ou t their w ork du ties, w e believe these w o uld be w o rkarea s pro tec ted by L C 640 4.5. A lso the excep tion speak s o nly o f "p a tient sm oking a rea s"and do es no t a llow fo r em ployee sm ok ing a rea s anyw here w ith in " long -term hea lth ca ref a c il it ie s " .A no th er qu estio n is: d o th e liv ing qu arters w ith in such a fa cility co nstitu te po ssible"pa tient sm ok ing a rea s" . W e believe tha t since a ll sta ff a re requ ired to enter these a rea sa lso o n a regu la r ba sis in o rder to ca rry o ut their w o rk respo nsibilities, they w o uld bepro tec ted a s w o rk a rea s by L C 640 4.5. T he u se o f the spec ific designa tio n "pa tient'sm oking a rea s" w ould no t h ave been necessa ry in the code if it w ere no t intended to be ad is tin ct, sep ara te lo ca tio n w i th in th e fa cility .T he broad pro tec tio ns o fL C 640 4.5 and the na rro w , spec ific excep tions fo und w ith in thelaw a re a ll th e m ore pertinent tod ay since the C alifo rnia A ir R esources B oa rd , a branch o f .the C alifo rnia E nv iro nm enta l P ro tectio n A gency , d ec la red in Ja nu ary 20 0 6 th at S eco ndH and S moke is a Tox ic A ir C ontam inant tha t inc rea ses the risk o f brea st cancer in youngw om en by 68% . A sum mary o f the ARB 's repo rt is a tta ched .In sum m ary , w e believe th a t since S econd H and S moke is a Tox ic Air C ontam inant and aC la ss A ca rc inogen to w hich there is no sa fe level o f expo su re, th e public , loca lgo vernm ent and C alifo rnia taxpayers w ho bea r the co st o f sm oking -rela ted dea ths andd isea se a re a ll serv ed best by the L eg isla tu re's intentio n to pro vid e w id e p ro tec tio ns a ndna rro w excep tio ns w ith in C a lifo rnia 's S m oke-free W o rkp la ce A ct (L C 64 04 .5).