Commerce Municipal Code Ch. 9.14 Enforcement of Labor Code Section 6404.5 Smoking Prohibitions

The prohibitions of Labor Code § 6404.5(b) shall be liberally construed in order to protect the health and safety of employees. Any proposed or existing smoking area should take all reasonable precautions to maximize openings and ventilation within the space. The lack of a definition of an "enclosed space" may present difficult issues for a local law enforcement agency that is responsible for the enforcement of Labor Code § 6404.5. Such determinations may be impacted by current law and authorities, building codes, architectural and other technological advancements. The determination of whether a space is an "enclosed space," therefore, may not always be easily made by the local law enforcement agency. The director of public works and development services ("director") addresses building code issues on a daily basis and is technically capable of making such determinations. It is not, however, within the director's purview to determine what constitutes a "place of employment" under Labor Code § 6404.5. Labor Code § 6404.5(j) requires the city council to designate the local law enforcement agency that shall enforce the prohibitions of § 6404.5. The city council desires to designate the local law enforcement agency and provide a process by which the technical determinations required by § 6404.5 can be determined in connection with enforcement authority.

(Ord. No. 663, § 1, 10-7-2014)

Pursuant to Labor Code § 6404.5(j), the city council hereby designates the County of Los Angeles Department of Public Health as the local law enforcement agency that shall be responsible for the enforcement of Labor Code § 6404.5. The County of Los Angeles Department of Public Health shall make determinations regarding the definition of an "enclosed space" in conjunction with the city's director of public works and development services as set forth herein.

(Ord. No. 663, § 1, 10-7-2014)

Pursuant to Labor Code § 6404.5(j), any violation of the prohibition set forth in Labor Code § 6404.5(b) is an infraction, punishable by a fine not to exceed one hundred dollars for a first violation, two hundred dollars for a second violation within one year, and five hundred dollars for a third and for each subsequent violation within one year. The local law enforcement agency designated herein shall comply with these Labor Code provisions as currently written, or as they may be amended from time to time.

(Ord. No. 663, § 1, 10-7-2014)

For purposes of this chapter, the following definitions shall apply:

(1) "CAL OSHA" means California Occupational Safety and Health Administration.

(2) "Director" means the city's director of public works and development services.

(3) "Place of employment" is defined by Labor Code § 6404.5(d). Whether a space constitutes a "place of employment" will be determined by the local enfocement agency based on the definition within Labor Code § 6404.5(d).

(4) "Space" means the space that is used as, or that the applicant is seeking to use as an area where smoking tobacco is permitted.

(5) "Structure" is defined as the way that something is built, arranged, or organized.

(6) "Wall" is defined as (1) a structure of brick, stone, etc., that surrounds an area or separates one area from another and (2) the structure that forms the side of a room or building, among other less applicable definitions.

(7) "Ceiling" is defined as the inside surface or lining at the top of a room.

(8) "Roof" is defined as "the structure forming the upper covering of a building."

(9) "Border" is defined as the outer limits of the existing or proposed space, regardless of whether a structure is in place along said border.

(Ord. No. 663, § 1, 10-7-2014)

The director shall, when requested by the owner of a structure or by the local law enforcement agency, inspect plans of an existing structure or the plans for a renovated or new structure and issue a written determination as to whether any part of the area constitutes an "enclosed space" pursuant to Labor Code § 6404.5(b). The director's determination may be requested as part of an enforcement proceeding or in connection with the building or renovation of a structure that is being proposed as a place where smoking is to be allowed.

The director shall utilize the following procedure when making such a determination:

(1) Does any portion of the border surrounding the space not have a wall?

(2) If any portion of the border surrounding the space does not have a wall, what percentage of the circumference of the surrounding area does not have a wall? (While there is no percentage requirement, CAL OSHA has advised cities in the past that "enclosure" is "generally understood to mean a space surrounded by four walls, a floor and a ceiling." CAL OSHA has also stated that, on that basis, "bars, taverns or gaming clubs with patio areas which lack a roof or walls would not be an 'enclosed space.'" Likewise, the attorney general has opined that "walls and roof make it an 'enclosed space' as that term is normally understood." However, any opening is not enough, as the code is liberally construed to reduce employee exposure to tobacco smoke. These authorities could be interpreted to mean that a room that is missing a complete wall will not be considered an "enclosed space.")

(3) If any portion of the border surrounding the space does not have a wall, is that portion directly exposed to outside air with no physical structure separating the space from the outside space?

(4) Is the space "separated from the surrounding ground" outside? (This determination is based on Attorney General Opinion No. 97-1201 wherein the attorney general opined that "A bar, restaurant, or tavern with walls and a roof is separated from surrounding ground when the doors and windows are open.")

(5) If it is questionable whether there is a wall or separation from the surrounding ground, does the separation in place allow for ventilation equivalent to a scenario where no wall was in place? (This element would be satisfied if the structure in place of a wall allows for circulation of outside air equivalent to a scenario where no wall was in place.)

(6) Is there a ceiling covering the space?

(7) If the space has a ceiling, does the ceiling permit ventilation equivalent to a scenario where no ceiling was in place? (This element would be satisfied if the structure in place of a ceiling allows for circulation of outside air equivalent to a scenario where no ceiling was in place.)

(8) Is there a roof covering the space?

(9) If the space has a roof, does the roof permit for ventilation equivalent to a scenario where no roof was in place? (This element would be satisfied if the structure in place of a roof allows for circulation of outside air equivalent to a scenario where no roof was in place.)

(10) Does the design of the space or the plans submitted by the applicant take significant steps to reduce employee exposure to environmental tobacco smoke? (This includes additional steps to increase ventilation in the space beyond ordinary openings to the outside space, including mechanical ventilation and/or a combination of openings in the ceiling and/or walls/separations.)

(11) Is the space a "structural part of the building" pursuant to Labor Code § 6404.5(b)? (Labor Code § 6404.5(b) states that "'Enclosed space' includes lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building and not specifically defined in subdivision (d).")

(12) Can it be said that the space is an "enclosed space" pursuant to Labor Code § 6404.5? (The attorney general has opined that "Although the phrase 'enclosed space' has some inherent vagueness, it gives fair warning of the statute's application. Based on the above factors, is the space an enclosed space?")

(Ord. No. 663, § 1, 10-7-2014)

(a) All actions and decisions of the director authorized by this chapter may be appealed to the city administrator. All such appeals shall be filed in writing with the city clerk. All appeals must be filed within fourteen calendar days of the date of the rendering of the decision. If the fourteenth day occurs on a holiday or weekend, the appeal period shall be extended to the next city work day. No appeal shall be accepted after the appeal period has expired.

(b) All appeals must be submitted in writing on a form to be provided by the city. The appeal must specifically state the grounds for the appeal and instances in which the director erred in reaching the determination. An appeal fee shall be paid concurrent with filing of the appeal in accordance with the fee schedule established by resolution of the city council.

(c) Within fourteen days upon receipt of an appeal, the city clerk shall set the matter for hearing before the city administrator. The appealing party and all other interested parties of record will be provided with notice of the hearing.

(Ord. No. 663, § 1, 10-7-2014)