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Eliminating Smoking in Bars, Taverns and Gaming Clubs: The California Smoke-Free Workplace Act

1California Department of Health Services • Tobacco Control Section

November 2001

A Case StudyA Case Study

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TOBACCO CONTROL SECTIONTOBACCO CONTROL SECTIONTOBACCO CONTROL SECTIONTOBACCO CONTROL SECTIONTOBACCO CONTROL SECTIONCalifornia Department of Health ServicesP.O. Box 942732, MS #555Sacramento, California 94234-7320

This training document, intended for use by our contractors, was authored for the California Departmentof Health Services by the following:

Catherine Wingo, Media SpecialistCalifornia Department of Health Services, Tobacco Control Section

Dian Kiser, M.S., CFRE, Co-Director BREATH—The California Smoke-free Bars, Workplaces and Communities Program

Theresa Boschert, J.D., Co-DirectorBREATH—The California Smoke-free Bars, Workplaces and Communities Program

Paul Hunting, M.P.H., Program ConsultantCalifornia Department of Health Services, Tobacco Control Section

Tacey Buffington, Program ConsultantCalifornia Department of Health Services, Tobacco Control Section

Joanne Wellman-Benson, R.D.H, M.P.H., Program ConsultantCalifornia Department of Health Services, Tobacco Control Section

Funding was made possible through Cooperative Agreement number UIA/CCU916769 between theCalifornia Department of Health Services and the Centers for Disease Control and Prevention, Officeon Smoking and Health.

Design by Kim Dugoni.


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CONTENTSCONTENTSCONTENTSCONTENTSCONTENTS

Introduction ................................................................................................................. 5

Chapter 1Laying the Groundwork for Smoke-Free Workplaces (1976–1994) .........................7

Chapter 2Legislative Chronology: The Battle to Achieve a Statewide Law ...........................12

Chapter 3Implementation Strategies for Smoke-Free Bars ....................................................18

Chapter 4Evaluation Methods: Tracking Public Support, Economic Impact, andPublic Health Impact ..................................................................................................28

Chapter 5Discussion: Future Implications for Smoke-Free Bars ........................................... 34

References ................................................................................................................. 39

AppendicesAssembly Bill 13—Appendix A ............................................................................... 40

Assembly Bill 3037—Appendix B ........................................................................... 45

Labor Code 6404.5—Appendix C .......................................................................... 46

Chronology Outline of Preparation and Implementation Activities for theCalifornia Smoke-Free Workplace Act—Appendix D.............................................. 52

Resources—Appendix E ........................................................................................ 54

Acknowledgments .................................................................................................... 55


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INTRODUCTION

On January 1, 1998, California became the firststate in the nation to eliminate smoking in virtuallyall indoor workplaces, including bars, taverns andgaming clubs. A large part of California’s subse-quent success in implementing this landmarkpublic health policy was due to careful ground-work laid by the California Tobacco ControlProgram, mandated by voters through the 1988ballot initiative known as Proposition 99. Estab-lished and administered by the Tobacco ControlSection (TCS) of the California Department ofHealth Services (CDHS), the California To-bacco Control Program helped develop localtobacco use prevention programs and coalitions.TCS and these local agencies, along with non-profit health groups such as the American CancerSociety (ACS), American Heart Association(AHA) and the American Lung Association(ALA), set in motion a comprehensive statewideeffort to increase public awareness about tobaccouse and the harmful effects of secondhand smoke.

The force behind California’s determination toreduce exposure to secondhand smoke wasscientific research, which clearly demonstratedthat non-smokers exposed to secondhand smokeshowed a marked increase in cancers and heartdisease. For instance, studies showed that duringan eight hour work shift, a non-smoking employeecould inhale secondhand smoke equivalent toactively smoking 16 cigarettes, nearly a pack.1By 1994, over 100 California cities and countiespassed their own workplace smoking restrictions.In 1994, the state legislature followed suit byenacting the California Smoke-free WorkplaceAct, also known as Assembly Bill 13 (AB 13).This worker-protection measure became part ofthe California Labor Code as Section 6404.5.Although the new clean indoor air law took effectin most enclosed workplaces, including restau-

rants, on January 1, 1995, the legislation provideda two-year exemption period for stand-alonebars, bars attached to restaurants, and otherestablishments with licenses to serve and consumealcohol on-site, including entertainment venuesand gaming clubs. Subsequent legislation added athird year to the bar and gaming club transitionperiod.

Without a large-scale public awareness campaignabout the dangers of secondhand smoke and theimportance of the law to protect workers, espe-cially as it related to bars and gaming clubs, thelaw might well have been undermined by thetobacco industry. An illustration of the importanceof public education was seen in the City ofToronto, Ontario, Canada. In 1997, Toronto’sCity Council attempted to ban smoking in all barsand restaurants with bars. The citywide ordinancewas imposed without substantial secondhandsmoke education for city residents prior to itspassage. With significant backing by the tobaccoindustry and their front groups, a vocal group ofToronto citizens protested the new law. Thetobacco industry promoted news articles decryingthe loss of personal freedoms and the potentialloss of revenues. The well-funded propagandacampaign took the public health community bysurprise and led to the appearance of panicamong business owners. Ultimately, the uproarpersuaded Toronto’s City Council to overturn thesmoke-free workplace measure within six weeksof its passage. In contrast, California’s TobaccoControl Program recognized the importance ofcreating widespread public awareness of the veryreal dangers of secondhand smoke, particularly tononsmokers. This was done through an aggres-sive media campaign and grassroots activities bya network of local tobacco use preventionprograms.

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This case study describes the groundswell ofpublic demand for smoke-free environments andspecific actions taken by the California TobaccoControl Program, in concert with county healthdepartments throughout California, to prepare fora statewide ban on smoking inside bars, tavernsand gaming clubs.


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1LAYING THE GROUNDWORKFOR SMOKE-FREEWORKPLACES (1976-1994)

Formation of the California Tobacco Control Program

In 1988, California voters passed Proposition 99, a ballot initiative, which

increased the state cigarette tax by 25 cents per pack, from 10 to 35 cents.

The revolutionary aspect of Proposition 99 was that it earmarked 20% of

the new revenues for tobacco-related health education and authorized the

State to establish a formal tobacco control program. As a result, in 1989

the Tobacco Control Section (TCS) was established under the auspices of

the California Department of Health Services (CDHS). TCS formulated a

plan of action known as California’s Tobacco Control Program around the

following goals:

• change the social norms of tobacco use;

• achieve a smoke-free California; and

• reduce tobacco use by 75% before the year 2000.

The California Tobacco Control Program was,and continues to be, a multi-faceted effort, reach-ing out to every segment of California society.Under the mandate of Proposition 99, TCScoordinated tobacco control efforts by means ofgrants to fund four layers of grassroots endeavor:a) 61 County and City health departments, known

as Local Lead Agencies (LLAs); b) 11 agenciesserving large geographic regions, known asRegional Community Linkages Projects; c) 4organizations serving the unique interests ofspecific ethnic groups, called Ethnic TobaccoEducation Networks; and d) numerous commu-nity-based organizations, known as Competitive

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Grantees, to conduct specific tobacco use pre-vention activities. TCS also conducted a state-wide media and public relations campaign, whichincluded creating and placing its own television,radio and print ads, providing media training tolocal agencies, developing informational packagesfor media outlets and supporting independentmedia activities by grantees. Additionally, TCSevaluated the progress of the entire program bygathering survey data and conducting timely dataanalysis to monitor tobacco use prevalence inCalifornia. In a separate but parallel mandate,Proposition 99 also required the CaliforniaDepartment of Education to provide tobaccoeducation through public schools.

Outside the official organizational structure ofTCS, a wide array of private, volunteer non-profitagencies, such as the American Cancer Society(ACS), American Lung Association (ALA),American Heart Association (AHA) and manyothers collaborated with TCS to deliver tobaccouse interventions and tobacco-related healthmessages to Californians. Private, non-profitvoluntary agencies were able to involve them-selves in political actions and lobbying efforts thatfell outside the mandate and permitted activities ofthe state’s Tobacco Control Program.

Underlying California’s extraordinary success wasthe Tobacco Control Program’s “de-normaliza-tion” strategy that repositioned tobacco use asundesirable and outside accepted social norms.Essentially, the strategy aimed to:

• reduce exposure to secondhand smoke;• counter pro-tobacco influences; and• reduce the availability of tobacco products to

minors.

These core elements brought tobacco issues tothe forefront of public attention and supported thestate’s policy commitment to protect Californiansfrom the harmful effects of tobacco use.

The Dangers of Secondhand SmokeDuring the early to mid 1990s, Californiansincreasingly recognized secondhand smoke as aserious threat to their health, on the job, in publicplaces and at home. Secondhand smoke exposurewas scientifically linked to lung cancer, nasal sinuscancer, chronic coronary heart disease, heartattack, exacerbation of asthma in children andSudden Infant Death Syndrome (SIDS).2 In fact,secondhand smoke was identified as America’sthird leading cause of preventable death.3

While exposure to secondhand smoke was acritical health hazard for all indoor employees,studies showed that food service workers, espe-cially bar and restaurant employees, were inparticular danger.

• Bar employees working an 8-hour shiftinvoluntarily inhaled amounts of smoke thatwere the approximate equivalent of smoking16 cigarettes, nearly a pack. This madesecondhand smoke a significant occupationalhealth hazard for food-service workers.1

• California waitresses died from higher rates oflung cancer and heart disease than any otherfemale occupational group and were found tohave four times the expected lung cancermortality rate and 2.5 times the expectedheart disease mortality rate of any femaleoccupation group.1

• Bartenders were discovered to have rates oflung cancer higher than firefighters, miners,duct workers and dry cleaners.4

Secondhand Smoke Media WarningsHit California AirwavesCalifornia’s Tobacco Control Program launchedits media campaign in 1990. The campaigncreated innovative and captivating media spots,reaching far beyond bland public service an-


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nouncements about the harmful effects of tobaccouse. With its Proposition 99 funding source, TCScould afford to go head-to-head against thetobacco industry’s slick advertising style. In theearly 1990s, the program’s bold messagespermeated mainstream television, radio and printmedia.

The campaign demonstrated that smoking wasnot just a personal-risk decision, but an actthat threatened friends and loved ones as well.Advertisements about secondhand smoke fo-cused on several motivating themes such as healtheffects (secondhand smoke kills); protection(caring for family and loved ones); and passivedangers (secondhand smoke doesn’t know howto stay in the smoking section). The ads wereplaced conspicuously in a broad array of mediaformats in order to reach general and targetedaudiences, such as youth, ethnic groups or preg-nant women. To reach these specific audiences,the media campaign used both mainstream andspecialty media outlets including ethnic radiotelevision and print, print ads in general marketpublications, trade journals, neighborhood bill-boards.

Californians were told upfront that this tobaccouse prevention campaign was funded by and forthe public interest, through the tobacco tax.Tobacco company advertisements no longerstood as the only messages, but now faced

counter-messages telling the truth about the healthhazards associated with exposure to secondhandsmoke. Throughout the state, these messageshelped to support the public’s demand forhealthier, smoke-free environments for all employ-ees working indoors.

Educational ProgramsAs public awareness of the dangers of second-hand smoke grew, changes began to occur.Hundreds of local and regional groups, funded byTCS, created interventions to eliminate second-hand smoke exposure in communities. In re-sponse, people began to take charge of the healthof their families and loved ones by creating

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smoke-free policies at home. In fact, by 1995,over 60% of Californians reported having a banon in-home smoking. By 1997, this number hadgrown to nearly 80%. Thus, an estimated 26.5million of the 33.2 million residents of California atthat time, were protected from secondhandsmoke at home.5 Similarly, business owners andemployers began implementing voluntary smoke-free policies to protect their workers. The Cali-fornia Department of Education stepped up itsstatewide tobacco use prevention programs aswell and required all school districts to becomesmoke-free by July 1995.

Local Ordinances Take the Lead toProhibit Smoking in BarsIn reality, California had begun the clean indoor airjourney nearly two decades earlier, through theefforts of local public health activists such as thosewho proposed and won a 1976 ordinance in theCity of Berkeley, restricting smoking in selectedindoor public areas and requiring separate sec-tions for smokers and nonsmokers in restaurants.When the citizen advocates behind this measureattempted to take their fledgling movement to thestate Legislature, they were outspent and out-maneuvered in the Capitol. It was clear thetobacco industry was in control of the Legislature.However, fueled by the victory in Berkeley,tobacco control advocates turned their attentionto other cities and set aside attempts to engage instatewide legislative policy-making, for the timebeing. The plan to seek clean indoor air ordi-nances on a community-by-community basis tookoff in the San Francisco Bay Area. In addition tothe work of the ALA, AHA and ACS, groupssuch as Americans for Nonsmokers’ Rights(ANR) played an active role in these campaigns.The decision to work locally paid off. As tobaccocontrol ordinances multiplied, these early effortsprovided opportunities to educate voters and raisepublic consciousness about secondhand tobacco

smoke and the deceitful actions of the tobaccoindustry.

In 1983, tobacco control advocates launched the“Proposition P” Campaign in the City of SanFrancisco. They used three arguments in supportof “Proposition P”:

• nonsmokers have rights;• cigarette smoke is a health hazard; and• cigarette smoke is more than an annoyance

and irritation.6

These points made sense to the citizens of SanFrancisco. Although the margin was narrow, the“Proposition P” victory set the stage for futureindoor clean air ordinances in California cities andcounties.

A growing segment of the public began to expectsmoke-free environments and the movementtoward a smoke-free California accelerated. Inthe early 1990s, with support from local healthdepartments, more city and county governmentstook action to protect the health of their residents.Local ordinances requiring smoke-free worksitesand public places became increasingly common.Several cities took the next step by adoptingsmoke-free requirements for restaurants. Suchdiverse cities as Lodi, Beverly Hills, Long Beachand Sacramento successfully passed smoke-freerestaurant ordinances. Meanwhile, in 1991 thesmall coastal college town of San Luis Obispobecame the first city in the nation to eliminatesmoking in both restaurants and bars, includingstand-alone bars (bars selling no meals, justbeverages). In 1992, Shasta County and the Cityof Tiburon enacted smoke-free bar laws. The yearafter, the cities of Davis, Redding, Belvedere andAnderson followed with similar policies. Ordi-nance activity gathered momentum in cities andcounties up and down the state.


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By June 1994, over 100 cities and counties inCalifornia had passed ordinances requiringsmoke-free workplaces, which included restau-rants. In a study by the CDHS between 1994and 1995, it was reported that over 86% ofCalifornia adults believed they were protectedfrom secondhand smoke in their indoor work-place.5 This was the result of a clearly definedpublic demand for protection from the deadlytoxins and carcinogens in secondhand smoke.

By March 1997, 48 cities and six counties hadenacted ordinances that eliminated smoking inbars attached to restaurants. Sixteen Californiacities and two counties went on to enact ordi-nances eliminating smoking in all freestandingbars.7 Each of these city and county ordinancesenhanced the smoke-free climate in California andpaved the way for future broad-scale legislation inthe state.

Voluntary Smoke-Free BarsAt the individual level, many bar owners made apersonal decision to operate smoke-free, volun-tarily protecting the health of their employees and

patrons while lowering operating and maintenancecosts. They also appreciated the prospect ofincreasing their patron base since customerpreferance and polling data showed that over80% of Californians did not smoke and that mostnon-smokers and many smokers preferredsmoke-free bars.

Beginning in 1994, the Mono County HealthDepartment initiated an entirely voluntary smoke-free bar program in the resort community ofMammoth Lakes. The County Health Departmentworked closely with bar owners to developsmoke-free policies and implementation strategies.While surveys found residents were ambivalentabout smoke-free bars, the bar owners felt thateliminating indoor smoking would complement thehealthy attitude of their sports-minded clientele.To reward their efforts, the Mono County HealthDepartment provided free newspaper and radioadvertising for all participating bars and bar/restaurant combinations. This incentive programproved to be a major component in the success ofvoluntary smoke-free bars in Mammoth Lakesand the strategy was used by many local jurisdic-tions when the subsequent statewide ban wentinto effect in January 1998.

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2LEGISLATIVE CHRONOLOGY:THE BATTLE TO ACHIEVE A STATEWIDE LAW

The California Smoke-Free Workplace Act

By 1993, support for smoke-free worksites and public areas was sweeping

the state. Several statewide clean indoor air ordinances were introduced in

the California Legislature in the early 1990s.

However, they contained preemptive language,which would remove the right of local govern-ments to pass stricter laws. As a result of activelobbying by nonprofit health groups, these pre-emptive statewide proposals were defeated. Atthat time, local ordinances protected about 60%of California residents. But, nonprofit healthgroup lobbyists representing the ALA, ACS andAHA were alarmed when several important areasin the state such as San Diego, passed weak cleanindoor air laws. Worse yet, parts of the CentralValley, Inland Empire and some local governmentsin rural areas refused to even consider cleanindoor air ordinances. At the time, the nonprofithealth groups were concerned that, in reality, 40%of the state’s workforce remained unprotected.This situation opened a door for state legislatorsto address the matter. Momentum for a statewidelaw to protect all indoor workers grew andAssembly Member Terry Friedman (D-SantaMonica), a close and trusted ally of the nonprofithealth groups, introduced AB 13 in 1993. Backed

by many local governments, labor associationsand progressive business owners, AB 13 wasdesigned to serve as a statewide minimum stan-dard to protect California employees from thedangers of secondhand smoke. The purpose ofAB 13 was to address workplace smoking in anon-preemptive piece of legislation that wouldensure clean indoor air for virtually all ofCalifornia’s workers, including those who workedin bars. A welcomed political surprise was thesupport of the California Restaurant Association.Their justification was fear of litigation by employ-ees who were being exposed to cigarette smoke.In addition, they supported this uniform statewidemeasure because it would reduce unfair competi-tion. However, other sectors of the hospitalityand tourism industries strongly opposed the bill.Their response was to introduce a competing,weaker bill, AB 996 by Assembly Member CurtisTucker (D-Inglewood), that would preempt localsmoking ordinances and which proposed mean-ingless ventilation standards.


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Both bills were assigned to committees for con-sideration and both bills gained the attention of themedia and the California public. The bills werelabeled by the press. AB 13 was called the“Good Guys” bill belonging to the AHA, ACS,ALA, California Labor Federation, the League ofCalifornia Cities and a coalition of other pro-health organizations. AB 996, on the other hand,was known as the “Tobacco Industry” bill.

Both bills failed to pass out of any AssemblyCommittees during the 1993 session. AssemblyMember Friedman conferred with Assembly andSenate leadership and made AB 13 a two-yearbill. AB 996 was abandoned by the tobaccoindustry. Preparation commenced for the reintro-duction of AB 13 in the early part of the 1994legislative session. During the spring and summerof 1994, the health groups were resolutely fo-cused on AB 13, with Assembly Member Fried-man ready to once again introduce the bill. After aseries of amendments, including one to permitsmoking in bars until January 1, 1997 and anotherto allow some exceptions for motel and hotelrooms and portions of lobbies, a promise ofneutrality was garnered from the hospitalityindustry. The bill was ready to begin its paththrough legislative committee hurdles. The ques-tion of preemption was very much alive in discus-sions between the health groups and membergroups of the ad hoc AB 13 Coalition. AssemblyMember Friedman was well aware of the positionheld by all of the health groups regarding preemp-tion and skillfully crafted a uniform, statewidestandard making those workplaces named in thebill 100% smoke-free. If any local ordinance orresolution was weaker, it would be subsumed bythe state standard, yet local communities wereallowed to enact ordinances stricter than AB 13.However, an amendment preempting all subse-quent local clean indoor air ordinance languagepassed in the Senate Judiciary Committee andimmediately galvanized opposition from the health

groups. Major news stories, including a piece onthe front page of the Los Angeles Times, charac-terized the Judiciary Committee’s preemptivelanguage as a ‘Rape in Sacramento.’6 That storyand many others added pressure to remove thepreemptive language. Within a week, the pre-emptive language was removed and AB 13 wasback on course passing through the Senate. TheAssembly concurred in July of 1994. In Septem-ber of that year, Governor Pete Wilson signed AB13 into law where it became part of the CaliforniaLabor Code, Section 6404.5.

To achieve smoke-free workplaces, AB 13 reliedon California’s Occupational Safety and HealthAct of 1973, which required worker protectionfrom harmful work environments. AB 13amended the state Labor Code in Section 6404.5to prohibit smoking in most indoor workplaces.Through a series of legislative compromises, AB13 permitted a few narrow exceptions whereindoor smoking would be allowed: up to 65% ofhotel and motel guest rooms; portions of hotel andmotel lobbies; hotel and motel meeting andbanquet rooms except during food service andexhibits; retail or wholesale tobacco shops withprivate smokers’ lounges; cabs of motor truckswhen non-smoking workers were not present;large warehouse facilities with open bays; andowner-operated bars. The most significantcompromise allowed for a two-year postpone-ment of the law for gaming clubs, bars and tav-erns. (See Appendix A for copy of AB 13).

AB 13 charged local governments with enforcingthe law. At the option of the local government,this could include police and sheriff departments,city code enforcement agencies, fire departments,district and city attorneys and/or local healthdepartments. Violators would be subject to thelowest form of criminal penalty, an infraction withfines of $100 for a first violation; $200 for a

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second violation within one year; and $500 forthird and subsequent violations. The law alsoprovided that, if an employer was found guilty ofthree violations within one year, his or her casecould be referred to the California OccupationalSafety and Health Administration (Cal-OSHA),where fines could be levied in excess of $7,000per violation.

Voters Defeat Proposition 188Concerned by the ever-increasing number of localordinances and the imminent passage of AB 13 inlate 1994, the tobacco industry and Philip Morrisin particular, stepped up their efforts on thepolitical front. Still stinging from the failure of AB996 and seriously concerned about the groundswell of local ordinance activity, tobacco industrylobbyists organized covertly to introduce a state-wide initiative strikingly similar to AB 996. Osten-sibly aimed at preempting a “patchwork” of newlocal ordinances, the proposed ballot measurewould have also overturned 84 existing localordinances, which prohibited smoking in restau-rants. Appearing on the November 1994 ballotas Proposition 188, this tobacco industry “accom-modation law” was being advanced in the eventthat AB 13 passed. This proposition would havepreempted AB 13 and all other state and localsmoke-free ordinances in California, replacingthem with a watered down, statewide smokinglaw written by the tobacco industry. Proposition188 even included a requirement for mandating,“smoking sections” in restaurants and otherworkplaces. Tobacco interests outspent thevoluntary health agencies (ACS, ALA, AHA) andtheir allies California Medical Association (CMA)and the California Dental Association (CDA),nearly twenty to one during the campaign. In amassive effort, Philip Morris spent $12.5 millionpromoting the ballot measure, marking the largest

contribution to any initiative in state history at thattime. Other tobacco companies and industrysupporters contributed an additional $6.9 millionto the campaign, bringing total tobacco industryexpenditures to $18,905,992. In contrast, only$1,037, 939 was spent by the “No on 188”campaign, funded mostly by voluntary healthagencies which mounted a grassroots informationcampaign through local chapters, divisions,affiliates and community allies.

Although some voters initially supported Proposi-tion 188, the tide turned once they learned of thetobacco industry’s role and backing. The cam-paign by the voluntary health groups called it whatit was, the “Philip Morris Initiative.” Voters didnot want local smoke-free ordinances or AB 13repealed. They soundly defeated Proposition 188by a landslide 71% to 29%. Proposition 188’sfailure delivered the public’s message loud andclear. Californians were no longer willing to beexposed to secondhand smoke in the workplacenor would they be duped by a tobacco industrypublic relations machine.

Following the passage of AB 13, public opinionsurveys found the majority of Californians sup-ported the law and appreciated the benefits oftheir healthier work environments. However, thetobacco industry funded and coordinated activitiesby “front groups” such as FORCES (FightOrdinances and Restrictions to Control andEliminate Smoking) and the NSA (NationalSmokers Alliance) to oppose the new law. Thesefront groups waged a publicity war that predictedfrightening economic losses for business owners.They organized “smoke-ins” at many businesssites especially corner coffee shops and bowlingalleys. This furor eventually diminished as patronsand business owners became accustomed to thelaw and, most importantly, the much-publicized


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forecasts of economic disaster never materialized.Assembly Bill 3037: Pro-TobaccoInterests Gain a Temporary VictoryThe tobacco industry launched its next assault onAB 13 through its coalition composed of theCalifornia Licensed Beverage Association,National Smokers Alliance, Californians forSmokers’ Rights and similar front groups. In1996, these groups supported Assembly Bill3037, designed to extend AB 13’s start date forthe smoking ban in bars, taverns and gaming clubsfrom January 1, 1997 to January 1, 2000. Al-though AB 3037 was adopted, the extension wasreduced to just one year, ending on January 1,1998. Under AB 3037, smoking in virtually allindoor workplaces including bars, taverns andgaming clubs would be prohibited after January 1,1998 unless Cal-OSHA or the Federal Environ-mental Protection Agency (EPA) adopted ventila-tion standards for exposure to secondhandsmoke. The proposed law also required thatduring the additional one-year extension, gamingclubs, bars or taverns establish a non-smokingarea “if feasible” (See Appendix B for copy ofAB 3037).

AB 3037 was vigorously opposed by ACS,AHA, ALA and other health agencies and asso-ciations. They argued that this bill denied bar,tavern and gaming club workers the equal protec-tion of a safe and smoke-free work environmentenjoyed by virtually all other indoor workers in thestate. In this skirmish, the tobacco industryprevailed and AB 3037 was passed, giving bars,taverns and gaming clubs an additional year tocomply with AB 13.

Tobacco Industry on the DefensiveThe tobacco industry had long focused enormousenergy toward minimizing smoking controlsimposed in California. Highly paid and influentialprofessionals staged the attacks, including such

firms as Burson Marsteller Public Relations, TheDolphin Group (political consultants) and Nielsen,Merksamer, Parrinello, Mueller & Naylor (law-yer-lobbyists). The industry’s first concern wasthat California’s momentum and expertise wasspreading to other states. California’s tobaccocontrol groups gained ground every year withsupport from Proposition 99’s tax revenues. Thestate’s success was being closely studied bynearly every state in the nation and by othercountries around the world.

As the state with the greatest number of smokers,California also represented a huge customer base.Larger counties in California had more smokersthan some states. As revenues diminished, to-bacco companies found the battles increasinglyexpensive on multiple fronts — at the ballot box,in legislative chambers, and in the courts. Never-theless, the industry pursued vigorous efforts toroll back support for smoke-free environments.They systematically attacked credible scientificstudies and conducted massive public relationscampaigns. Additionally, numerous front groupswere funded by tobacco companies, particularlyPhilip Morris, to stir discontent with smokingrestrictions. According to a Los Angeles Timesarticle, tobacco industry tactics included intimida-tion, threats and other underhanded measuresagainst groups who might support tobaccocontrol.7 They also aligned themselves withvarious groups interested in diverting Proposition99 cigarette tax revenues into state budget needsthat were less threatening than tobacco control.

An example of these efforts was the role ofBurson Marsteller, a public relations firm repre-senting Philip Morris. They created “The To-bacco Institute,” a national tobacco industry-funded, lobbying and public relations organizationmasquerading as a pseudo-educational agency. In1993, Burson Marsteller created the National

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Smokers Alliance (NSA), another tobaccoindustry front group operating out of Virginia. TheNSA received funding from Philip Morris, R.J.Reynolds, and Brown & Williamson TobaccoCorporation. Guided by Burson Marsteller, NSAattacked California’s Smoke-free Workplace Acton multiple fronts:

1) NSA launched a statewide public aware-ness campaign in 1996 to rally bar ownersand the public against smoke-free bars.They used anecdotal claims and unscien-tific surveys to predict economic disasterfor restaurant owners and managers. Theyorchestrated editorials, op-ed pieces,‘letters to the editor’ and direct mailcampaigns that claimed “personal rights”were being infringed and argued that thehealth movement had gone too far.

2) NSA claimed the science regarding thehealth hazards of secondhand smoke wasexaggerated, overrated and misleading. Asubgroup of NSA, calling themselves“Californians for Scientific Integrity”, wascreated in a futile attempt to use the legalsystem to shed doubt on recent anti-tobacco research. In particular, researchconducted by Stanton Glantz, Ph.D., ofthe University of California, San Fran-cisco, was attacked in the press and in thecourts.

3) NSA distributed special kits to help barowners influence their patrons to sendpro-tobacco messages to legislators.NSA set up a short-lived but highlypublicized, toll-free telephone hot line thatlinked bar owners directly to their legisla-tors. They also created web sites to shareinformation on activities aimed at repealingthe law.

Fortunately, tobacco control advocates wereprepared and countered each attack. Results of astatewide public opinion poll, which indicatedstrong support for the law, were distributed inpress releases throughout the state. Factualreports discredited the NSA’s misleading claimsand proved that neither tax revenues nor tourismactivity dropped after local smoke-free ordi-nances went into effect. The Tobacco ControlProgram, through its local allies, enlisted thesupport of employees and owners of smoke-freebars to share their personal views on the positivebenefits of smoke-free establishments.

Continuing Legislative Attempts toRepeal the LawEncouraged by the success of AB 3037, thetobacco industry backed several measures duringthe 1997-98 legislative session. Tobacco industryallies sponsored five bills, each of which sought torollback or eliminate statewide implementation ofthe smoke-free workplace law in bars. All fivewere opposed by the alliance of California’svoluntary health agencies, ACS, ALA, AHA andANR, along with key support from the CaliforniaLabor Federation (AFL-CIO), CMA and otherpro-health and pro-labor groups. At legislativehearings, a pithy and oft-repeated message ofCalifornia Labor Federation President, TomRankin, was that “Death by cigarette smokeshould not be a condition of employment.” Itwas highly effective, particularly with Democraticlegislators.

During the autumn of 1997, key legislators includ-ing Senate Health Committee Chair Diane Watson(D-Los Angeles) and Senate President BillLockyer (D-Fremont) rebuffed tobacco lobbyists’attempts to undermine or eliminate the law. The


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California Smoke-free Workplace Act finallywent into effect for bars, restaurants withbars, gaming clubs, bingo parlors, casinos andentertainment venues on January 1, 1998.Legislative battles continued but, nine monthslater, at the close of the 1998 session, not one ofthose five tobacco industry bills had been passedby the legislature. At last, smoke-free bars wereon their way to becoming a “social norm” inCalifornia.

Tobacco Control Groups Keep UpTheir CampaignThroughout the campaign to secure safe workenvironments for bar and gaming club employees,tobacco control advocates, backed by agroundswell of public support, honed their abilityto counter tobacco industry assaults. Local healthdepartment tobacco control programs and Com-petitive Grantees, funded through grants providedby the California Tobacco Control Program,(using Proposition 99 cigarette tax revenues)continued to conduct hundreds of educationalactivities in every corner of the state to countertobacco industry ploys as they surfaced. To meet

the challenge, local groups put tobacco controlmessages on racecars and raffled off leatherjackets, sporting the slogan “Breathe Free” atmotorcycle rallies. They provided umbrellas forbar patrons during the rainy season. And ofcourse, they placed ads in local newspapers, oncable and mainstream television, and radio, aswell as conducting customized “rapid response”publicity.

At the same time, a vigorous statewide mediacampaign by TCS kept the tobacco controlmessages fresh and compelling. To consolidatepublic support for the law, TCS aired televisionads featuring actual waitresses and bar staff.Local TCS-funded tobacco use preventionprograms intensified efforts to educate bar ownersand employees about the new law and its benefits.

Responding to these efforts, the California publicgrew increasingly aware that the tobacco industrywas interested only in promoting its corporatebottom line, no matter the cost to public healthand well- being. The vast majority of Californiansrecognized smoke-free workplaces as fundamen-tal to employee safety and productivity and as aresult, supported clean indoor air regulations.

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3IMPLEMENTATION STRATEGIES FORSMOKE-FREE BARS

California’s varied geography and diverse population offered special

challenges for implementing public health policies. When AB 13 went into

effect as part of California Labor Code 6404.5, the state’s economy was,

and continues to be, larger than that of most nations. On a grand scale, the

state had over 32 million residents spread over 58 counties, which ranged

from intensely urban to remotely rural. Income levels varied tremendously

as did ethnic and cultural backgrounds. Yet, California also was home to an

active voluntary health community, a strong pro-health movement, and a

majority of residents who were receptive to healthy changes, once they

were given the facts.

Through local programs, a statewide mediacampaign, regional activities, and “bar-focused”technical assistance provided by BREATH (astatewide, Proposition 99-funded grantee spon-sored by the ALA of the East Bay, and assignedto work exclusively on implementation of LaborCode 6404.5), the California Tobacco ControlProgram successfully reached into every cornerof the state. The Program was sensitive to thestate’s diversity and unique characteristics andcounted those qualities as assets when planning itsimplementation campaign.

In late 1997, as time ran out on AB 3037’s lastditch extension on indoor smoking for bars andgaming clubs, the multi-layered Tobacco ControlProgram took steps to ensure a smooth transi-tion. The implementation plan was carried out byTCS in many dimensions simultaneously throughstatewide programs such as BREATH, local andregional interventions and media buys. In conjunc-tion with TCS, the state’s nonprofit voluntaryhealth agencies (ACS, AHA and ALA) continuedtheir campaigns to educate residents and policyleaders about the harm of secondhand smoke andthe benefits of smoke-free environments.


19

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Implementation Strategies on theState LevelTCS used its Proposition 99-funded network of58 counties and 3 city health departments knownas Local Lead Agencies (LLAs), 11 RegionalLinkages Programs, 4 Ethnic Tobacco EducationNetworks and numerous Competitive Grantees toease the transition to smoke-free bars. To preparebars and enforcement agencies for the expirationof AB 3037’s time extension, this network ofstate-funded tobacco control programs providedfree training assistance, information packets,media kits, multi-language brochures, and “NoSmoking” signs to business owners.

In July 1997, TCS released Labor Code 6404.5(AB 3037) informational package specificallydesigned for the nearly 35,000 bar, restaurant andgaming club owners in California. The packageincluded a letter from the Director of the CDHS, acopy of the law, an explanatory brochure, a model“No Smoking” sign which referenced the law, anda comprehensive question and answer packet.

TCS worked closely with BREATH, the LLAs,Regions and Competitive Grantees to:

• determine the attitudes of local health depart-ment directors about smoke-free bars, thestatus of smoke-free nightspots in their areas,and the need for implementation strategies intheir community;

• create a workgroup to monitor, develop andimplement statewide program activities;

• conduct an initial focus group comprised ofsmoke-free bar workgroup members, barowners and other health professionals experi-enced with smoke-free bar programs andordinances;

• monitor the successes and challenges faced bycommunities with smoke-free bar policies inplace prior to the creation of the statewide

Smoke-free Workplace Act;• assist local health departments, regional

projects and Competitive Grantees to dia-logue with bar owners, educate enforcers andrespond to questions from the general public;and

• analyze and disseminate economic impactdata on smoke-free ordinances and distributekey findings to local agencies.

Grassroots Community ImplementationStrategiesPrior to the establishment of BREATH, thestatewide project assigned to work exclusively onimplementation of the Smoke-free WorkplaceLaw in bars, taverns and gaming clubs, TCS hadfunded the California Smoke-Free CitiesProject, a statewide program through the Califor-nia Healthy Cities Project that was on thefrontlines when Labor Code 6404.5 first went intoeffect for restaurants and other workplaces in1995. The program educated city officials andlocal tobacco control projects about Labor Code6404.5 and pending legislation. It also conductedin-depth analysis of enforcement protocols forsmoke-free workplace policies in venues otherthan bars, taverns and gaming clubs. As a result,it developed the social will index, which wasused by BREATH to prioritize cities and countiesfor interventions and actions. The social will indexmeasured a community’s “readiness for change” inregard to tobacco control policies. The readinessprofile was based upon factors such as how thecommunity voted on Propositions 99 and 188,how their state legislators voted on tobaccocontrol measures in Sacramento and the com-munity’s level of success in passing local tobaccocontrol ordinances. The California Smoke-FreeCities Project ended in December 1997, on theeve of smoke-free bar implementation.


21

BREATH-The California Smoke-FreeBar ProjectFrom 1997 onward, TCS worked closely with itsfull network of cooperating local health agenciesto ensure that smoke-free workplace policieswould be successfully received on January 1,1998. At that point, Labor Code 6404.5 becamefully effective in virtually all indoor workplaces,including bars, restaurants with bars, casinos,bingo parlors, bowling alleys and entertainmentvenues throughout California.

BREATH was funded in March 1997 to facilitatethe transition from smoke-filled to smoke-freebars. BREATH staff traveled from town meetingto town meeting, listening to the concerns of barowners, managers, employees, entertainers andgaming club workers and responding to theirquestions with reliable information and practicalsupport. BREATH’s mission was to relieve thefears and reduce the adversarial relationshipbetween business owners and government that thetobacco industry fostered through an on-goingpublic relations campaign of misinformation aboutthe law.

A key tool was BREATH’s toll-free informationhotline for bar owners. The project also providedtechnical assistance, along with media support andadvocacy training for local tobacco controlcoalitions. It also conducted legal workshops forlocal law and code enforcement agencies.

BREATH developed numerous materials forsmoke-free bars and gaming clubs including aresource kit with suggestions on “How to GoSmoke-Free.” It also developed brochures,promotional items and a 14-minute video entitled,“Bar Profits—Up In Smoke?” that featured barowners encouraging their peers to comply with thelaw in order to enhance business revenues.

Materials were designed specifically for baremployees and owners. Information on economic

impact, question and answer guides, and consen-sus legal interpretations of the law were providedin clear and easy-to-understand language. Tem-plates were created for use by LLAs and Re-gional Linkage Programs and Ethnic Networksincluding a bar industry newsletter called “Tipsand Trends.”

In addition, BREATH ran newspaper advertise-ments in January and February of 1998, listing barand restaurant owners who successfully compliedwith and supported the smoke-free bar law.These particular ads effectively countered thetobacco industry’s lies that bar owners wouldsuffer economically. They also gave a face to themajority of bar owners who wanted to be recog-nized as the responsible, law-abiding businesspeople they were.

During this crucial period of transition, and inorder to address head-on the economic misinfor-mation being spread by NSA and other tobaccoindustry front groups, BREATH placed full-pageads in bar trade journals such as the BeverageIndustry News and Patterson’s BeverageJournal. The ads focused on public support forthe law and bar worker health. As a result, theBeverage Industry News also ran an editorial bya supportive bar owner. BREATH staffed boothsat the California Restaurant Association’s tradeshows in Los Angeles and San Francisco to meetand talk with thousands of bar and restaurantowners about the California Smoke-free Work-place Act.

Serving as a hub for information sharing,BREATH was instrumental in supporting localagencies responsible for enforcing Labor Code6404.5. Over 65 local and statewide trainingworkshops were conducted, featuring legalinterpretations of the law, protocols for enforce-ment, court case history, inter-agency networking,

22

and techniques for working through resistance.Each workshop featured local enforcementrepresentatives, local business owners and “bestpractices” from around the state. Several of theseworkshops were presented collaboratively withBREATH’s subcontractor, the Law EnforcementAssistance Network (LEAN), a law enforcementconsulting group comprised of active duty policeofficers.

In three major urban areas, San Diego, the SanFrancisco Bay Area and the greater OrangeCounty area, BREATH with the help of localagencies, organized membership coalitions of barand casino employees. In-roads were also madewith musicians and entertainers who performed invenues that were once smoke-filled, but nowsmoke-free. A statewide advisory board com-prised of members of the hospitality industryassisted BREATH in leading the way for manybusiness owners.

Local Lead AgenciesComprehensive local tobacco control programswere funded in 58 county and 3 city healthdepartments under Proposition 99’s enablinglegislation. These Local Lead Agencies (LLAs)played a critical role in the implementation of theSmoke-free Workplace Law in bars within theirjurisdictions. They developed smoke-free barinterventions based upon local needs, such as thenumber of cities within a county, ethnic make-up,language challenges, and geographic restrictions.Often times, in coordination with BREATH, theLLAs provided technical assistance, supportmaterials, special events and media activities forbar owners, employees and patrons. A goodexample was the San Francisco LLA.

In 1997, in anticipation of the coming law, the SanFrancisco Department of Public Health, Tobacco-Free Project carried out a successful, multi-faceted strategy for introducing smoke-free bars

in a highly diverse and urban setting, using thefollowing program components:

• Community Input: Over 1,000 communityresidents were surveyed in four languages(English, Spanish, Cantonese, and Viet-namese) to determine opinions on smoke-free bars.

• Operator Input: San Francisco developedand mailed a survey questionnaire to all(2,831) San Francisco bar/restaurantowners in order to: a) inform them ofpublic opinion regarding smoke-free bars,b) invite them to operate smoke-free for aday during the 1997 Great AmericanSmoke Out, and c) encourage them tobecome smoke-free on an ongoing basisbefore the implementation of Labor Code6404.5.

• Incentives: Voluntarily smoke-free estab-lishments were identified in a newlypublished San Francisco Guide toSmoke-Free Restaurants and Bars.Guides were distributed through directmail to targeted neighborhoods. Thiseffort also generated media coverage forbars that went smoke-free for the 1997Great American Smoke-Out.

• Employee Outreach: Encouragement andtechnical support were provided to barworkers interested in securing voluntarysmoke-free bar policies at their workplace, prior to the January 1, 1998deadline. An educational kit was alsoprovided for workers to use whenapproaching owners and/or managers.Participating bars and restaurant ownerswere recruited as spokespersons to raisepublic awareness.


23

• Technical Support: Informational materi-als addressing legal parameters, employerresponsibility, enforcement technicalities,and legal definitions were developed.

• Media: An assertive media and publicrelations campaign was launched. Itresulted in at least 13 print, 4 radio and7 television news stories on smoke-freebars. The project aired public serviceannouncements from the ALA anddeveloped their own advertisement to de-glamorize cigar nights. They developedprint ads and street signs informing thepublic of the new law and provided multi-lingual materials to bar owners. “Questionand Answer” packets about the law werealso distributed to bar owners and themedia.

• Follow Up: More than a year after LaborCode 6404.5 became applicable to bars,taverns and gaming clubs, the San Fran-cisco City Attorney was the firstprosecutor’s office to sue recalcitrant barowners under California’s Unfair BusinessPractices Law (Business and ProfessionsCode, Section 17200). This action wastaken against only a handful of establish-ments that had received numerous warn-ings and citations, but refused to complywith the law, thereby creating an unevenplaying field for the majority of law-abiding bar owners.

Highlights of Innovative and EffectiveSmoke-free Bar Activities by Other LocalLead Agencies

• Orange County LLA mailed informationpackets to bar owners and kits to publicofficials; purchased a half-page ad in the

Orange County Register and otherEnglish and foreign language newspapers;distributed press releases; and contactedarea groups and churches about thebenefits of the new smoke-free bar law.Numerous follow-up meetings wereconducted with enforcement agencies toensure full and fair enforcement in thatcounty.

• Placer County LLA sponsored smoke-free activities during the Great AmericanSmoke Out; ran print and radio adspromoting bars that were already smoke-free; distributed promotional materials(napkins, stickers, and flashing buttons);and hosted meetings for bar owners andmanagers. A special awards banquet washeld for the Red Lobster Restaurant,acknowledging its groundbreaking role bybecoming smoke-free in January 1995.Enforcement training workshops and localmedia activities were also conducted.

• LLAs in Shasta and Riverside Counties,at opposite ends of the state, implementedsimilar, centralized enforcement proce-dures. Shasta County hired a retired lawenforcement officer (paid out of countygeneral funds) to work directly with theDistrict Attorney’s office on bar compli-ance. Riverside County authorized one ofits health educators (also paid out ofgeneral revenue funds) to citenoncompliant bars throughout the county.In addition to writing citations wherenecessary, both counties focused oneducating local judges and court commis-sioners to ensure fair, informed hearings incourt. Both counties followed throughwith sustained enforcement efforts toattain exceptionally high compliance ratesby 2001.

24

• Fresno County LLA and the FresnoCounty Economic Opportunities Commis-sion organized a policy leadership trainingconducted by BREATH. The newlyenergized coalition of citizens attended acity council meeting to demand improvedenforcement of Labor Code 6404.5 andreceived excellent media coverage.

• Amador County LLA ran a full-page ad intheir local newspaper, featuring thesignature of every physician in their area,urging support for Labor Code 6404.5.

• San Mateo County LLA staff members‘rode-along’ with city police officers towitness citations of non-compliant stand-alone bars, raising compliance to nearly90%.

• Most LLAs in California worked tirelesslyto implement Labor Code 6404.5 during1998, 1999 and 2000. Their efforts madethe work of law enforcement agencieseasier. The result was an estimated overallstatewide compliance rate above 90% byDecember of 2000, as reported toBREATH and TCS by local tobaccocontrol projects. These estimates werebased upon on-site surveys of bars and/orinterviews with local code enforcementpersonnel. Counties reporting 95-100%compliance with the law by December2000 represented both urban and ruraldemographic landscapes, including Butte,Imperial, Madera, Marin, Mono,Monterey, Nevada, Riverside, SanBenito, San Luis Obispo and Yolocounties.

Regional Community Linkage ProjectsThe California Tobacco Control Program alsofunded 11 Regional Community Linkage Projectswith Proposition 99 tax revenues to connect andcoordinate local health departments and commu-nity-based organizations and in particular, toprovide regional public relations and mediaactivities.

Regional programs helped local organizationssponsor and coordinate tobacco use prevention,policy and media activities that cut across tradi-tional political, geographical and organizationaljurisdictions. These efforts brought togetherdiverse groups of individuals, agencies andorganizations to work in partnership towardcommon goals.

An excellent example of regional activities in anurban setting was the Los Angeles Link (LA Link)program, which encompassed 88 cities within LosAngeles County, including Long Beach andPasadena. This regional effort trained spokesper-sons, distributed informational kits to over 7,000bar owners, and placed advertising and publicservice announcements about smoke-free bars.LA Link sponsored smoke-free events at 20 areanightspots during the 1997 Great AmericanSmoke-Out and hosted an information booth atthe California Restaurant Association TradeShow. LA Link surveyed bar and restaurantowners about smoking compliance rates and citycode enforcement agencies about the adoption ofenforcement procedures for Labor Code 6404.5.Armed with this information, LA Link then spon-sored a training workshop for local code enforce-ment officers and city managers featuring speakersfrom BREATH, the Long Beach LLA, local lawenforcement agencies and smoke-free bar ownerswho provided information on enforcement andmaintaining customer satisfaction. Following theenactment of Labor Code 6404.5, LA Link was


25

instrumental in working with the Los Angeles CityCouncil to pass a local ordinance establishing acentralized complaint hot line for city residents.

The Gold Country Region provided anotherexample of activities in a multi-ethnic region ofrural to medium sized communities, consisting offourteen counties (Alpine, Amador, Calaveras, ElDorado, Inyo, Mono, Nevada, Placer, Sacra-mento, San Joaquin, Stanislaus, Sutter, Tuolumneand Yolo). The region began educating barowners, followed this with widespread volunteerbar observations and eventually shared data withlaw enforcement agencies. They issued a series ofpress releases to local newspapers and televisionnews stations explaining the importance of theCalifornia Smoke-free Workplace Act, andfeatured interviews with local bar owners who hadvoluntarily gone smoke-free. As many regionsdid, the Gold Country Region also provided mini-grants to support free entertainment, advertising orpublicity for bars that were smoke-free.

Other important work by Regional CommunityLinkage Projects took place throughout the state.Tri-Country South Region, North Valley Regionand BARTER (Bay Area Regional TobaccoEducation Resource) conducted patron surveys indance clubs and provided excellent bar ownerrecognition activities such as visiting compliantbars in tourist and high traffic areas, awardingcertificates of appreciation, celebratory messagesand holiday sweets. Best yet, these activitiesinevitably garnered local media attention.

Ethnic Tobacco Education NetworksThe four Ethnic Tobacco Education Networks ofthe California Tobacco Control Programprovided ethnic-specific technical assistance andtraining for Hispanic/Latino, Asian/PacificIslander, African American, and American Indian

populations throughout California. Each of thesenetworks offered culturally relevant and appropri-ate tobacco education interventions.

For example, the Asian and Pacific IslanderTobacco Education Network developed strate-gies for smoke-free bar implementation in the cityof San Francisco and its outlying areas. TheNetwork created and distributed language-specific materials for use by bar owners andcommunity organizations. These materials made adifference in educating immigrant groups about thelaw since mainstream messages often did notreach this segment of the population.

In collaboration with BREATH, the African-American Tobacco Education Network placedfull-page ads in African-American-owned news-papers such as The Observer in Sacramento,recognizing ethnic businesses in compliance withthe smoke-free bar law.

The Hispanic/Latino Tobacco Education Networkconducted surveys of Hispanic-owned bars andurged compliance through educational materials,media information and face-to-face visits withbusiness owners.

BREATH consulted with the American IndianTobacco Education Network regarding voluntarysmoke-free nights in tribal casinos, which, assovereign territory, were not subject to the man-datory provisions of California Labor Code6404.5.

Community-Based ProgramsSeveral community-based programs throughoutthe state were also funded by the CaliforniaTobacco Control Program to implement smoke-free workplace programs. Overall, these projectssupported the efforts of the Tobacco Control

26

Program in highly urban areas and/or offeredaccess to hard-to-reach rural and ethnic popula-tions. These grantees included groups such asCatholic Charities in San Diego and Libreria DelPueblo in San Bernardino, who provided a uniqueunderstanding of their communities and providedtailored education to meet specific community andcultural needs.

Just how far-reaching the work of CompetitiveGrantees could be was demonstrated by two suchgrantees in San Diego County. First, the Ameri-can Lung Association of San Diego and ImperialCounties hosted bar owner forums; posted ads atcity bus stops and on buses; held press confer-ences; and ran radio, TV and print advertise-ments. To further generate media exposure andpublic awareness, the program used the GreatAmerican Smoke-Out to feature 14 bars volun-tarily going smoke-free on a trial basis prior to theJanuary 1, 1998 implementation date. Second,the San Diego-based Labor’s Community Ser-vices Agency created a full-time project to workon smoke-free bar implementation. In January1998, local tobacco control educators conducteda compliance survey in a popular nightclub areaimmediately prior to the Super Bowl, which washeld in San Diego. Of the 37 bars surveyed, all37 were found to be smoke-free. Subsequently,both agencies developed outstanding workingrelationships with the San Diego Police Depart-ment and city prosecutors. As a result, San Diegowas the scene of some of the most innovative andeffective prosecutorial work done in the state.

Voluntary Non-Profit Agencies asCollaborating PartnersCalifornia’s major voluntary health agencies weremajor players in cultivating public acceptance ofsmoke-free laws. The ACS, ALA, AHA, Califor-nia Labor Federation (AFL-CIO) and otherscollectively lent a powerful voice in the battle toprotect bar and gaming club workers from

secondhand smoke. Each of these agenciesactivated their grass-root volunteers and profes-sional staff to fight repeated legislative efforts todelay the implementation of the smoke-free barlaw.

The voluntary agencies created and paid for theirown hard-hitting advertising and public relationscampaign to educate the public and legislatorsabout the importance of smoke-free workplacelaws. They testified before legislative committeesand organized letter-writing campaigns amongtheir local affiliates. The California Division of theACS organized joint press conferences andcirculated news releases about the importance ofimplementing the final segment of the CaliforniaSmoke-free Workplace Act in bars and casinos.The ALA of California led lobbying efforts toprotect the legislation during five repeal attemptsinitiated by the tobacco industry. ALA also filed asuccessful Friend of the Court brief in a districtcourt case that challenged the constitutionality ofthe law. The California Labor Federation joinedthe nonprofit health organizations to create apotent pro-health, worker-protection voice in thestate capitol.

Additionally, the League of California Cities, theCalifornia Nurses Association, California MedicalAssociation, Smoke-free Air for Everyone(SAFE) and the California Parent-Teacher’sAssociation (PTA) provided support to theCalifornia Tobacco Control Program. Thesegroups used their networks and advocacy skills togarner support for the California Smoke-freeWorkplace Act and mobilized opposition toProposition 188 and subsequent attempts to delayor repeal smoke-free bars.

With these important partnerships, the CaliforniaTobacco Control Program was able to leverageits resources exponentially, beyond what a stateagency could accomplish on its own.


27

California would not have achieved the samesuccess in creating smoke-free indoor workenvironments without these cooperative affilia-tions.

The Role of Statewide MediaThe TCS statewide media campaign played a vitalrole in the successful implementation of smoke-free bars. The media campaign provided publicrelations support, and multimedia advertisementsto reinforce on-going, community-based educa-tional activities. Working with LLAs and others,the media campaign targeted a statewide televi-sion and radio audience.

The messages developed and disseminated by themedia campaign supported and called attention towidespread acceptance of smoke-free bars, andresulted in broad-based community recognition ofthe smoke-free bar provisions in the CaliforniaSmoke-free Workplace Act. Through its mediacampaign and local programs, TCS also:

• Educated bar patrons and the general publicabout the harm of secondhand smoke, therequirements of the new law, and communitysupport for smoke-free bars.

• Created television, radio and print advertise-ments supporting the new law.

• Distributed these ads via network and cabletelevision, popular radio stations, primary andsecondary newspapers, and beverage andrestaurant industry magazines.

• Developed promotional items including signs,coasters and napkins to be distributed byLLAs, free of charge, to bar and nightclubowners.

• Provided a binder containing background andmedia outreach materials, sample ads andinterview talking points to tobacco controlprogram directors around the state.

• Provided bar owners and employees with aninformational brochure on transitioning to asmoke-free environment.

• Created multiple public relations and mediaevents to announce the law and support itsimplementation.

Technical assistance training provided by themedia campaign proved invaluable for tobaccocontrol programs throughout the state. Leading upto the January 1998 deadline, the media campaigncombined information and strategies from previ-ous activities with timely and targeted pressreleases. This effort reinforced the campaign’searlier activities and provided “air support” for thesuccessful grassroots implementation activitiestaking place in cities, counties and regionsthroughout California.

• Publicized results of statewide public opinionpolls, surveys and revenue data.

28

4EVALUATION METHODS: TRACKING PUBLICSUPPORT, ECONOMIC IMPACT AND PUBLICHEALTH IMPACT

Public Opinion Polls Confirm Support

In 1989, long before enactment of the California Smoke-free Workplace Act,

TCS was charged with the responsibility for evaluating the results of the

Tobacco Control Program and began collecting data on tobacco-related

beliefs and behavior. The widespread public acceptance that greeted the

introduction of the Smoke-free Workplace Act in 1995 clearly demonstrated

that Californians supported and were ready for smoke-free workplaces.

But how would the public respond to eliminatingsmoking in bars and gaming clubs? The answeremerged through a series of studies and pollsconducted to assess public attitudes aboutsmoke-free environments, including bars. Fourbroad-based statewide opinion polls confirmedthe public’s knowledge of, and support forsmoke-free policies. Each survey provided theTobacco Control Program with statistical data tosupport the rising tide of smoke-free policies andespecially to promote implementation of smoke-free restaurant and bar requirements.

The “Social Will” IndexAs early as 1996, the California Smoke-FreeCities Program conducted a study measuring

potential community receptiveness to tobaccocontrol measures. The project analyzed votingmargins on issues such as the Proposition 99tobacco tax increase and the Philip Morris-sponsored Proposition 188. It also conducted in-depth interviews with law enforcement agents andcity officials to measure “social will.” In highsocial will communities, the public expected andwelcomed smoke-free environments; whereas, inlow social will communities, officials expressedapprehension about the law and in some cases,revealed personal resistance to indoor smokingrestrictions. The California Tobacco ControlProgram was able to use this information toidentify communities most ready and most worriedabout implementing smoke-free workplaces.


29

California Adult Tobacco SurveysAnother measure of the effectiveness of the state’spublic education campaign on smoke-freeworksites is the California Adult Tobacco Surveys(CATS), which was first conducted in 1994. 5CATS is an automated, random-digit-dial tele-phone survey that interviews approximately 4,000California adults annually about their smokingbehaviors, attitudes and beliefs. The survey alsomeasures public opinion concerning secondhandsmoke and smoke-free environments such as barsand restaurants. CATS data reported by TCS in1996 revealed that:

• More than 80% of Californians believedthat exposure to secondhand smokecaused lung cancer in nonsmokers.

• Over 93% believed that secondhandsmoke could harm the health of babiesand children.

• Almost 90% of nonsmokers and 70% ofsmokers felt that indoor work sites shouldbe smoke-free.

• Over 85% of California adults reported apreference to dine in a smoke-freerestaurant.

Gallup PollIn March 1996, well after Labor Code 6404.5went into effect for restaurants and other indoorworksites, but did not yet apply to bars, theCDHS commissioned a Gallup poll to determinethe effectiveness of the California TobaccoControl Program and attitudes of Californians ontobacco-related issues. 8 The longitudinal studyincluded both an analysis of interventions as wellas direct reports from those polled. The GallupPoll found that:

• Eighty-nine percent of California adultsagreed that secondhand smoke was aserious health hazard.

• Californians reported by a ratio of 3 to 1that they preferred to patronize smoke-free bars.

• More than half of Californians workingoutside their homes believed that protec-tion from secondhand smoke should beextended to bars and taverns; 64% feltemployees in bars should be protected.

• Ninety-Seven percent of 10th graders inthe state were aware that secondhandsmoke disables and kills.

• Most adults (87%) reported havingsmoke-free policies at their worksites.

• The majority of adults supported extend-ing smoke-free policies to other areassuch as bars (75%) and outdoor publicplaces (57%).

• Five out of six Californians, workingoutside their homes, agreed that employ-ers had a responsibility to protect employ-ees from secondhand smoke.

Field Institute Survey of California AdultsIn July 1997, twice in 1998 and once more in2000, studies by the Field Research Corporationfound strong support for smoke-free environmentsand laws. 9 In 1997, Field surveyed the attitudesof California bar patrons (age 21 or older) aboutsmoking policies and smoke-free bars. Thissurvey tracked the attitudes of Californians whoactually patronized bars and gaming clubs. Theywere asked about smoking behaviors, environ-mental preferences, patronage habits and policyopinions. These three surveys found that:

30

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31.4%“no difference”on visits to bars

• Seventy-five percent of bar patrons did notsmoke in bars in 1997; increasing to86% by 2000.

• Sixty-eight percent of bar patrons pre-ferred smoke-free environments in bars in1998; increasing to 75% by 2000.

• Sixty-five percent of bar patrons either“strongly” or “somewhat” approved of thelaw in 1998; increasing to 72.5% by2000.

• Eighty-seven percent of bar patronsreported they were “as likely” or “morelikely” to visit bars since they had becomesmoke-free by 2000.

These timely surveys provided tremendous insight,which the California Tobacco Control Programused statewide, to successfully implement thesmoke-free bar law, Labor Code 6404.5. Thesurveys confirmed public support for smoke-freebars despite tobacco industry allegations to thecontrary.

Field Institute Survey of Bar Establishments

The March 1998 Field Research Corporation Pollof Bar Establishments, a polling of individualswho worked in or owned/managed bars contrib-uted significantly in the development of educa-tional materials and activities for bar owners andpublic health educators at the county and commu-nity level, who were responsible for implementingthis law.11

Key points brought to light by these surveys werecommunicated to TCS, BREATH, and all TCS-funded contractors to help them communicatemore effectively with bar owners and workers.For example the surveys revealed that:


31

1. Bar workers in stand-alone bars estimatedthat over half (52%) of their patrons smokedin their establishments; whereas, the March1998 patron survey showed that only 26% ofbar patrons reported smoking in bars. Barworker perceptions were off double that ofbar patrons, indicating bar owners and serversconsistently overestimated the percentage oftheir customer base that smoked.

2. When bar employees merely stated to smok-ing patrons that it was against the law tosmoke indoors, only 57% of patrons stoppedsmoking. However, when employees asked asmoking patron to stop smoking or go outsideto smoke, 82% readily complied.

Examples of effective tools prepared by BREATHand used by local tobacco control programsbased upon this research included “Seven Sug-gestions for Bar Owners ” and “Building Relation-ships-Meeting with Bar Owners.” These andother materials focused on increasing the under-standing of bar owners and workers about thehazards associated with long-term exposure tosecondhand smoke and their rights and responsi-bilities regarding the California Smoke-freeWorkplace Act. A compelling need to developsuch materials was discovered when this 1998survey by the Field Research Corporation re-vealed that 35% of non-smoking bar workerswere “not at all” or “not very concerned” aboutthe effects of secondhand smoke on their health.

Conclusive Data on Economic Impactof Smoking RestrictionsAt the inception of Labor Code 6404.5, state-wide economic data for California was not yetavailable. So, studies of individual cities that hadpreviously adopted smoke-free ordinances wereused to alleviate the fear that bar and restaurant

revenues might drop off due to smoke-freepolicies. Local studies measured impacts onrevenues, patronage and tourism. Overall, theyshowed little or no economic impact resulting fromsmoke-free bar ordinances and showed consistentmarket support for the laws.

Local Revenue Data: Taxable retail salesstatistics were used in several studies to measurethe economic impact to cities and counties with100% smoke-free bar laws. Some of the findingsincluded:

• A 1994 study based upon state sales tax data(1986-1993) from 15 cities with smoke-freepolicies, concluded that smoke-free restaurantordinances in California and Colorado citiesdid not adversely affect restaurant sales.12 Afollow-up to this initial study reconfirmedthose findings. 13

• Studies found no evidence of negative eco-nomic impact caused by San Luis Obispo’s1990 smoke-free bar and restaurant policy. 14

A later study showed a consistent increase intaxable sales transactions for eating anddrinking establishments through 1994 in thatcity after passing its local smoking ban. 15

• Following the 1993 implementation of asmoke-free ordinance in Redding, the city’saverage taxable transactions per eating anddrinking establishment increased 2.2% andthen expanded that increase in 1994 by7.3%.15

Statewide Patron and Market Data: Trackingstudies in 1997 and 1998 indicated that themajority of California bar patrons were non-smokers who preferred smoke-free environments.Findings included:

32

6.55 6.82 7.167.6

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es in

Bill

ions

Food &\or Beer\W ine Food &\or All Alcohol

Annual Taxable Sales FiguresCalifornia: 1995 - 2000

Source: California Board of Equalization, 10/01

Year

Smoke-free Restaurants Smoke-free Bars

• Although patronage patterns were unrelatedto smoking status, 78% of frequent bar usersand 82% of frequent restaurant users werenonsmokers. 17

• Nearly 9 in 10 (87%) of adult bar patronssaid that a ban on smoking in bars wouldincrease or have no affect on their overallpatronage of bars. 11

As sales tax data accumulated from 1998 for-ward, following the implementation of LaborCode 6404.5 in bars, taverns and gaming clubs,economic fears proved groundless. One Califor-nia bar owner stated the reason for this was clear,“The odds are in the bar owner’s favor because82% of California adults don’t smoke.”

Support from business owners increased as salestax figures for each succeeding quarter emergedfrom the California State Board of Equalization,showing no negative statewide economic impactfrom the law. The California Smoke-free Work-place Act went into effect in bars in January,1998. Nearly 89% of all California bars wereattached to restaurants at that time. AnnualTaxable Sales figures from the CaliforniaBoard of Equalization (BOE) for such estab-lishments selling beer and wine and for thoseselling all types of liquor increased everysingle quarter of 1998, 1999 and into 2000.16

Revenue data from the BOE, the only stateagency that collected sales data directly frombusiness owners also showed that:

• For establishments selling beer and wine,annual sales in 1997 were $7.16 billiondollars; annual sales in the same category for1998 increased to $7.6 billion and in 1999they rose to $8.27 billion.

• For establishments selling all types of alcohol,1997 sales were $8.64 billion dollars; 1998sales increased to $9.08 billion and 1999annual sales increased to $9.82 billion.

• An additional $879,816,000 in sales weremade in California’s beer, wine and liquorserving establishments during 1998 as com-pared to 1997—after the California Smoke-free Workplace Act became effective forbars.

• The rate of growth in beer, wine and liquorserving establishments outpaced all retailoutlet taxable sales in 1998 compared to1997 by 7.7%.

In fact, in 2000, California’s bars and restaurantshad over 108,000 more employees than in 1995,bringing the total workforce to nearly 926,000people for the hospitality sector.

In summary, the BOE reported increased sales taxrevenues for California’s smoke-free liquorlicensees every quarter from January 1998through the year 2000. Sales tax figures indi-cated that Taxable Annual Sales for bars andrestaurants serving just beer and wine and forthose serving all types of alcohol increased in1998 over 1997 figures by more than 5%. Theirsales increased again in 1999 over 1998 by morethan 8% and the increases continued in 2000.

California’s Tobacco Control Programproactively sought feedback from the businesscommunity to address their economic concerns.It soon became clear that bar owners could see


33

Tourism in CaliforniaCalifornia Travel Spending and Related Impacts: 1995-2000*

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0

10

20

30

40

50

60

70

80

DestinationSpending

Total Spending Total Payroll

��19951996��1997��1998

��

1999��2000

Source: California Trade and Commerce Agency, Division of Tourism, April, 2001

* Year end 2000 data is preliminary. “Total Payroll” definition changed in 1999 to include sole proprietors such as owners of Bed & Breakfasts andtheir family members instead of just the hired staff of such establishments.

Destination Spending includes spending on accommodations, eating and drinking, groceries, ground transportation, recreation and retail sales. Totalspending also includes air transportation and travel arrangement services.

Bill

ions

of D

olla

rs

��

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Number of Individuals Employed in Eatingand Drinking Places in California: 1992-1999

Annual Average Labor Force

774800784900

794800

817500

840900853200

870100

889400

926300

770000

790000

810000

830000

850000

870000

890000

910000

930000

950000

1992 1993 1994 1995 1996 1997 1998 1999 2000

Employees

Source: State of California, Employment Development Department, Labor Force Statistics (4/01)

Year

Num

ber o

f Em

ploy

ees

Smoke-Free Restaurants Smoke-Free Bars

Increase of 19.5%in 9 years ascompared to a13.5% increase forall employmentstatewideover the sameperiod.

the advantages of going smoke-free. They citedlowered operating costs resulting from less routinemaintenance as well as happier customers andemployees. As early as February, 1998, inPatterson’s Beverage Journal, CaliforniaRestaurant Association spokesperson, ChristineGranados, described the simple reality for the vastmajority of law-abiding bar and restaurant own-ers, “The new California statewide law prohibitingsmoking in bars has now been in effect for overtwo months and is running very smoothly so far.”

Tourism: Reports from the California Depart-ment of Tourism showed that smoke-free work-place laws did not have an adverse affect onvisitor activity or spending, contrary to tobaccoindustry claims that tourists would resentCalifornia’s smoke-free policies. While theCalifornia Smoke-free Workplace Act was notdirectly responsible for an increase in tourism tothe state, the fact remained that the tourist industryflourished since the statewide ban went into effect.

1995 was a banner year for tourism in California.That pace was sustained into 1998 and figuresreleased by the California Department of Tourismin 1999 indicated more of the same: 18

• Total destination spending (spending onhotels, restaurants and travel-related

expenses) in California increased $13.7billion dollars between 1995 and 1999.

• Total payroll expenses in the tourismindustry jumped $3.3 billion dollarsbetween 1995 and 1999 and employmentin the tourism sector increased by morethan 55,000 jobs.

Demonstrated Improvement inEmployee HealthReaction to the law from bar and restaurantemployees was understandably favorable. Elatedservers, bartenders, casino dealers, musicians andother hospitality industry employees declared theywould never go back to smoke-filled workenvironments. Their high regard for the law waswell founded. A 1998 University of California,San Francisco study revealed that 59% of bar-tenders surveyed who had symptoms of respira-tory ailments and impaired lung capacity beforethe law went into effect for bars showed a signifi-cant decrease in symptoms and measurablyimproved lung capacity just one month after thelaw took effect.6 Between 1998 and 2001,scores of beverage service employees spoke outbefore legislative bodies, City Councils andCounty Boards of Supervisors about their im-proved health conditions and the pleasure ofworking in clean indoor environments.

34

5DISCUSSION: FUTURE IMPLICATIONS FORSMOKE-FREE BARS

Where We Are Now: A Status Report

Estimates by BREATH in 2001, based upon on-site bar surveys and LLA

interviews with law enforcers, place statewide compliance with Labor Code

6404.5 at an unprecedented 90% for bars attached to restaurants, statewide.

Heavily visited areas, such as Fisherman’s Wharf in San Francisco,

Monterey’s Cannery Row, Carmel-by-the-Sea, the Gaslamp District in San

Diego, Santa Monica Pier, Mammoth Lakes ski resort and other tourist and

resort areas reported even higher compliance rates of 95% or more.

It is key to note that bars attached to restaurantscomprise 88% of all on-site consumption liquorlicenses in California. Whereas, stand-alone bars(those serving no food) account for only 12% ofthe liquor licenses. Further, the number of li-censed establishments in California totaled nearly37,000 in 2001. Fully 33% of these are concen-trated in Los Angeles County, which had adocumented compliance rate among bar/restau-rant combinations of 92%, as of February 2001.

From December 1997 through February 2001,BREATH and the LLAs responded to over 2,800technical assistance calls from bar and restaurantowners, employees, law enforcement representa-tives and members of the public. Questionsfrequently asked included topics such as which

areas were suitable for smoking (patios, decksetc.), how to prepare staff for the law, questionsconcerning legal interpretations of Labor Code6404.5 and, of course, how to report bars thatwere allowing indoor smoking.

Testing the Law: California Court Decisions on Smoke-Free BarsAs recalcitrant bar owners were cited and theCalifornia Smoke-free Workplace Act cameunder challenge, California courts defined andclarified the smoke-free bar law. For examplebetween 1998 and 2001, the courts ruled that thelaw was constitutional, was not vague, providedequal protection and did not preempt localgovernments from establishing even more strict


35

local tobacco control prohibitions. Further, thecourts ruled that there was no constitutional rightto smoke, the presence of ashtrays demonstratedowners are “knowingly and intentionally” allowingpatrons to smoke and that bar owners must domore than just post “no smoking” signs and askpatrons to refrain from smoking —in short, barowners were told by the courts to stop servingpatrons who refused to stop smoking.

Since Labor Code 6404.5 went into effect forbars, taverns and gaming clubs three years ago,no meaningful challenge to the law has succeededin any court in California. On the contrary, localjurists took a common sense approach to cases,looking at owners’ overall conduct to determinewhether or not they were doing what the lawrequired. In addition, the courts found that absentowners could be cited through the mail, cities andindividuals could sue non-compliant bar ownersfor “unfair business practices” and bar staff whosmoked while preparing or serving drinks wereguilty of violating the Labor Code and California’sHealth and Safety Code, leading to court-ordered,temporary closure of at least one establishment.

Not only California courts, but also regulatoryagencies such as Cal-OSHA (California Occupa-tional Safety and Health Administration) steppedup to the plate to carry out the intent of LaborCode 6404.5. In late 2000, two bar owners whohad been repeatedly warned and cited for violat-ing the law were referred to Cal-OSHA, investi-gated and determined to be in “willful and serious”violation of the smoke-free workplace law. As aresult, they were each fined over $50,000 for theviolations.

Very few bar owners have had to face the courtsunder this law. But when it has been necessary,California courts responded by not only upholdingthe law in concept, but also establishing a body ofsound legal interpretations in a variety of real-life

factual circumstances that have provided ownerswith fair warning and a level playing field.

Recommendations for Others Consid-ering Smoke-free Workplace LawsBig tobacco will not freely surrender any ground,no matter how small the market potential or plainthe threat to public health. Establishing andimplementing a smoke-free workplace law inCalifornia took hard work by many people.Tobacco control proponents had to be preparedto face aggressive tactics by the tobacco industry.Fortunately, the tide of public awareness acrossthe country and around the globe is turning againstthe tobacco industry and many groups have hadsuccesses that others can learn from. But publicunderstanding does not happen automatically.The first step on the road to smoke-freeworkplaces is public education about thedangers of secondhand smoke. Public aware-ness activates popular demand for smoke-freepublic places. Once the public has the facts, thetime is ripe for smoke-free policies to take hold.

To take advantage of positive momentum and givea voice to the public desire for smoke-freeworkplaces consider these 10 steps:

1. Gather Facts: Identify the social profileof your target populations. Survey yourcommunity to determine their level ofknowledge about the danger of second-hand smoke and their readiness forcommunity-wide policies. Collect infor-mation on changing attitudes and emergingacceptance of smoke-free environmentsthroughout the hospitality industry, includ-ing restaurants and bars. Gather reliableeconomic impact indicators for yourpublic relations campaign. Interviewpeople from cities and counties with

36

existing smoke-free policies to gain insightinto issues such as enforcement, compli-ance, public opinion, and implementationstrategies. California’s taxable salesdata, indicated that revenues increasedstatewide following the enactment ofsmoking regulations; this data wasessential to counter false claims by thetobacco industry that were intended topanic small business owners.

2. Focus on Workers: Support for theCalifornia Smoke-free Workplace Actwas enormously aided precisely becauseit was a worker protection law, ratherthan a consumer protection law. Thisapproach increased support for the lawbecause most Americans believe, as amatter of equity, that workers are entitledto a safe and healthy work environment.The public embraced the notion thatexposure to deadly secondhand smokeshould not be a condition of employ-ment. This framing of the issue becameparticularly important in counteringlegislative attempts to permit certainworkplaces such as bars, taverns andgaming clubs, to allow smoking. Califor-nians understood that workers in theseenvironments deserved that same level ofhealth protection as workers in high-riseoffice buildings, factories and schools.

3. Move Incrementally: Capitalize uponthe experiences of others by planning yourcampaign in stages. For instance, begin bymaking government offices smoke-free.Then address private industry, includingrestaurants, and finally progress to barsand gaming clubs. Plan on enough lead-time to prepare the public and key com-munity leaders. A broad base of localtobacco control policies is ideal to sup-port statewide smoke-free mandates.

4. Collaborate: Cooperative efforts amongpublic health agencies, voluntary healthnonprofits and community-based organi-zations are fundamental to a successfulpublic health campaign. Leverage theresources, experience, and abilities ofnumerous agencies in your area. Thisapproach offers your program a greaterwealth of knowledge and talents. Createways for groups to communicate with andsupport each other. Cultivate partnerswith the means and know-how to workwith and, when necessary, bring politicalpressure to bear on legislators and publicofficials.

5. Involve Business Owners andEmployees: Encourage bar owners,managers and employees to work withyou, not against you. An important earlystep is involving industry professionals inthe planning process. Listen carefullywhen soliciting their input. They feelownership of the program when they seetheir suggestions incorporated into yourcampaign.

6. Advertise: Use appropriate paid andunpaid media outlets to reach constituen-cies (bar owners and managers, barpatrons, public officials, health profession-als and the general public). Print andtelevision advertising coupled with bill-boards, trade journal advertising andother mediums make a powerful combina-tion. Advertising is most effective whenfocused on the facts surrounding the threatof secondhand smoke to public health,rather than focusing on particular out-comes or policy. California’s experiencedemonstrates that a skillful advertisingcampaign can effectively counterbalancethe slick ad campaigns run by the tobaccoindustry.


37

7. Cultivate Unpaid Public Relations:Identify and educate opinion-makers in allforms of public media, such as newspapereditorial boards, T.V. reporters, radio talkshow hosts and magazine publishers.They can help you deliver your facts. Planand disseminate letters to the editor,conduct press conferences and distributepromotional items to support yourprogram’s message.

8. Understand Diversity: Take the time togather input from culturally diversegroups. Learn how to communicateaccurate messages in the appropriateidiom and context. Tailor your supportmaterials and ads to each community’sinterests and customs. Be sure to usecredible translators and focus groups totest your products.

9. Develop a Revenue Base: California’ssuccess was underwritten by the Proposi-tion 99 cigarette tax. This was an ear-marked portion of 25 cents per pack thatgenerated millions of dollars annually tofund local programs and the mediacampaign that led to grassroots pressurefor local and statewide action. Exploresources of revenue that may be appropri-ate in your area.

10. Enforce the Law: Research and collectproven enforcement protocols that can beeasily adapted by local enforcementpersonnel. Set up pracitcal programs totrain local enforcement agencies, alert thepublic about ways to voice their com-plaints, and encourage and recognizevoluntary compliance among bar owners/operators as well as responsive enforce-ment by authorities.

ConclusionResearch on public opinion and statewide compli-ance rates clearly demonstrated that support forthe California Smoke-free Workplace Act andlevels of compliance with the law grew fromquarter to quarter between 1998 and 2001. Pollsshowed more than 72% of bar patrons and over80% of the general public approved of smoke-free workplaces, including bars. In California,smoke-free environments became the acceptednorm, at work, in public places, and at home. Asearly as 1998, a spokesperson for the CDHScould state to the press without fear of contradic-tion that, “If you go to restaurants throughoutCalifornia, you rarely see anyone smoking. It’sbecause people generally understand the law,not because there’s an officer standing there.” 19

Additionally, smoke-free workplace legislationwithstood repeated attacks by the tobaccoindustry and its front groups between 1994 and2000. Voters delivered a clear rejection of to-bacco industry propaganda when Proposition188, attempting to overturn Labor Code 6404.5was voted down in 1994. The tobacco industrymade no progress in their lobbying efforts to haltsmoke-free bars. Subsequent attempts tolimit or overturn the state’s smoke-free barlaw have failed. Why? Because cancer rateswent down, revenues went up and publicacceptance of smoke-free bars became a“social norm”.

In early 2001, confirmation of the success ofsmoke-free bars in California even came fromformer Republican Assemblymember BrettGranlund, one of the fiercest opponents ofsmoke-free bars. Commenting in the Sacra-mento Bee on bar owners who continued toviolate the law and, as a result received stiffpenalties from increasingly impatient judicial andregulatory authorities, Granlund acknowledged,

38

“The law is the law and there have been manyefforts to challenge it, but it appears to me thatfight is over. It’s just something smokers have toget used to.”20, 21 Californians, smokers andnonsmokers alike, have more than “gotten used to

it”. Today, they proudly view smoke-free dining,drinking and entertainment venues, along withother smoke-free workplaces, as a sign of thegood life for which the state is so well known.


39

REFERENCES

1. Siegel, M. “Smoking and Restaurants: A Guidefor Policy-Makers” 1992.

2. California Environmental Protection Agency.“Health Effects of Exposure to SecondhandSmoke,” 1997.

3. United States Department of Health Services,“Special Report to U.S. Congress on Alcohol andHealth from the Secretary of Human Services.”

4. California Department of Health Services,“California Occupational Mortality Study, 1979-1981” California Department of Health Services,1981.

5. California Department of Health Services, “WhatCalifornians Believe About Secondhand Smoke”Source: California Adult Tobacco Survey, 1994-1995. California Department of Health Services,Tobacco Control Section, 1996.

6. Glantz, S. and Balbach, E. Tobacco War—Insidethe California Battles, University of CaliforniaPress-2000.

7. Americans for Nonsmokers’ Rights, “Surveyof Smoke-Free Ordinances” March 6, 1997.

8. Los Angeles Times, “An Inside Look at Battles ofBig Tobacco,” 6-11-98.

9. The Gallup Organization “A Survey onCalifornia’s Law For a Smoke-Free Workplace (AB13): Attitudes After the First Year of Implementa-tion,” March 1996.

10. Field Research Corporation, “A Survey ofCalifornia Adults Age 21 or Older About SmokingPolicies and Smoke-free Bars,” July 1997.

11. Field Research Corporation, A Survey of Califor-nia Bar Patrons About Smoking Policies andSmoke-Free Bars,” October 1998.

12. Glantz, S. and Smith, L. “The Effect of OrdinancesRequiring Smoke-Free Restaurants on RestaurantSales.” American Journal of Public Health. 1994;84:1081–1085.

13. Glantz, S. and Smith, L. “The Effect of OrdinancesRequiring Smoke-Free Restaurants and Bars onRevenues.” American Journal of Public Health,October 1997:1687.

14. Taylor Consulting Group. “A Study of theEconomic Impacts on San Luis Obispo Restau-rants and Bars” 1993.

15. Reynen, D. “Statements re: California Board ofEqualization Data on Eating and Drinking Permitsfor Three Selected Cities.” California Departmentof Health Services, Tobacco Control Section,unpublished analysis, 8/2/96.

16. California State Board of Equalization, April 2001.

17. Biener, L. and Siegel, M. “Behavior Intentions ofthe Public after Restaurant and Bar SmokingBans.” American Journal of Public Health, 1997;87: 204–2044.

18. California Department of Tourism, “CaliforniaTravel Spending and Related Impacts 1995–1997,”1998.

19. San Luis Obispo Telegraph-Tribune, “CaliforniansKeep Lighting Up Despite Smoking Ban,” 9/25/98.

20. Ubhi v. State Compensation Insurance Fund,California Workers’ Compensation AppealsBoard, 1990.

21. BREATH, The California Smoke-Free Bar Program,A Project of the American Lung Association ofthe East Bay, “Collected Abstracts and CaseStudies on the Development and Implementationof Smoke-Free Bars in California,”1998–2000.

40

APPENDIX A

ASSEMBLY BILL 13As passed in 1995

BILL NUMBER: AB 13 CHAPTERED 07/21/94

BILL TEXT CHAPTER 310 FILED WITHSECRETARY OF STATE JULY 21, 1994

APPROVED BY GOVERNOR JULY 21, 1994

PASSED THE ASSEMBLY JULY 7, 1994

PASSED THE SENATE JUNE 30, 1994

AMENDED IN SENATE JUNE 16, 1994AMENDED IN SENATE MAY 24, 1994AMENDED IN SENATE APRIL 6, 1994AMENDED IN SENATE MARCH 7, 1994AMENDED IN SENATE AUGUST 30, 1993AMENDED IN SENATE AUGUST 19, 1993AMENDED IN SENATE AUGUST 17, 1993AMENDED IN SENATE JULY 1, 1993AMENDED IN ASSEMBLY MAY 24, 1993AMENDED IN ASSEMBLY APRIL 12, 1993AMENDED IN ASSEMBLY FEBRUARY 22, 1993

INTRODUCED BY Assembly Member TerryFriedman (Principal coauthor: Assembly MemberMargolin) (Coauthors: Assembly Members Archie-Hudson, Bates, Caldera, Eastin, Gotch, Isenberg,Klehs, and Solis) (Coauthors: Senators Petris,Torres, and Watson) DECEMBER 7, 1992 An actto add Section 6404.5 to the Labor Code, relating tooccupational safety and health. LEGISLATIVECOUNSEL’S DIGEST AB 13, T. Friedman.Occupational safety and health: tobacco products.The existing California Occupational Safety andHealth Act of 1973, administered and enforced bythe Division of Occupational Safety and Healthwithin the Department of Industrial Relations,prohibits any employer from occupying or maintain-ing any place of employment that is not safe andhealthful. It also provides, under specified circum-

stances, for misdemeanor penalties with respect toviolations of the act, except where another penaltyis specifically provided. This bill would additionallyprohibit any employer from knowingly or intention-ally permitting, or any person from engaging in, thesmoking of tobacco products in an enclosed spaceat specified places of employment. The bill wouldspecify that, for purposes of these provisions,“place of employment” does not include certainportions of a hotel, motel, or other lodging establish-ments, meeting or banquet rooms subject to certainexceptions, retail or wholesale tobacco shops,private smoker’s lounges, cabs of motortrucks ortruck tractors as specified, bars and taverns andgaming clubs subject to certain prescribed condi-tions, warehouse facilities, theatrical productionsites, and medical research or treatment sites,employee breakrooms under prescribed conditions,patient smoking areas in long-term health carefacilities, as defined, and specified smoking areasdesignated by employers with fewer than 5 em-ployees. It would also specify that, for purposes ofthese provisions, an employer who permits anynonemployee access to his or her place of employ-ment on a regular basis has not acted knowingly orintentionally if he or she has taken certain reason-able steps to prevent smoking by a nonemployee.This bill would also specify that the smokingprohibition set forth in these provisions shall consti-tute a uniform statewide standard for regulating thesmoking of tobacco products in enclosed places ofemployment, and shall supersede and renderunnecessary specified local ordinances regulatingthe smoking of tobacco products in enclosed placesof employment. This bill would additionally providethat a violation of the smoking prohibition set forthin these provisions is an infraction punishable byspecified fines. It would further provide that thesmoking prohibition shall be enforced by local lawenforcement agencies, as specified, but would


41

specify that the division shall not be required torespond to any complaint regarding a violation ofthe smoking prohibition, unless the employer hasbeen found guilty of a 3rd violation of the smokingprohibition within the previous year. By establishinga new prohibition the violation of which is, underspecified circumstances, an infraction, this billwould create a new crime and would therebyestablish a state-mandated local program. TheCalifornia Constitution requires the state to reim-burse local agencies and school districts for certaincosts mandated by the state. Statutory provisionsestablish procedures for making that reimburse-ment. This bill would provide that no reimburse-ment is required by this act for a specified reason.

THE PEOPLE OF THE STATE OF CALIFOR-NIA DO ENACT AS FOLLOWS: SECTION 1.Section 6404.5 is added to the Labor Code, to read:6404.5. (a) The Legislature finds and declares thatregulation of smoking in the workplace is a matterof statewide interest and concern. It is the intent ofthe Legislature in enacting this section to prohibitthe smoking of tobacco products in all (100 percentof) enclosed places of employment in this state, ascovered by this section, thereby eliminating theneed of local governments to enact workplacesmoking restrictions within their respective jurisdic-tions. It is further the intent of the Legislature tocreate a uniform statewide standard to restrict andprohibit the smoking of tobacco products in en-closed places of employment, as specified in thissection, in order to reduce employee exposure toenvironmental tobacco smoke to a level that willprevent anything other than insignificantly harmfuleffects to exposed employees, and also to eliminatethe confusion and hardship that can result fromenactment or enforcement of disparate localworkplace smoking restrictions. Notwithstandingany other provision of this section, it is the intent ofthe Legislature that any area not defined as a“place of employment” pursuant to subdivision (d)or in which the smoking of tobacco products is notregulated pursuant to subdivision (e) shall besubject to local regulation of smoking of tobaccoproducts. (b) No employer shall knowingly or

intentionally permit, and no person shall engage in,the smoking of tobacco products in an enclosedspace at a place of employment. (c) For purposesof this section, an employer who permits anynonemployee access to his or her place of employ-ment on a regular basis has not acted knowingly orintentionally if he or she has taken the followingreasonable steps to prevent smoking by anonemployee: (1) Posted clear and prominent signs,as follows: (A) Where smoking is prohibitedthroughout the building or structure, a sign stating“No smoking” shall be posted at each entrance tothe building or structure. (B) Where smoking ispermitted in designated areas of the building orstructure, a sign stating “Smoking is prohibitedexcept in designated areas” shall be posted at eachentrance to the building or structure. (2) Hasrequested, when appropriate, that a nonemployeewho is smoking refrain from smoking in the en-closed workplace. For purposes of this subdivision,“reasonable steps” does not include (A) thephysical ejectment of a nonemployee from theplace of employment or (B) any requirement formaking a request to a nonemployee to refrain fromsmoking, under circumstances involving a risk ofphysical harm to the employer or any employee. (d)For purposes of this section, “place of employ-ment” does not include any of the following: (1)Sixty-five percent of the guest room accommoda-tions in a hotel, motel, or similar transient lodgingestablishment. (2) Areas of the lobby in a hotel,motel, or other similar transient lodging establish-ment designated for smoking by the establishment.Such an establishment may permit smoking in adesignated lobby area that does not exceed 25percent of the total floor area of the lobby or, if thetotal area 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 such anestablishment in which registration and other similaror related transactions, or both, are conducted andin which the establishment’s guests and membersof the public typically congregate. (3) Meeting andbanquet rooms in a hotel, motel, other transientlodging establishment similar to a hotel or motel,

42

restaurant, or public convention center, exceptwhile food or beverage functions are taking place,including setup, service, and cleanup activities, orwhen the room is being used for exhibit purposes.At times when smoking is not permitted in such ameeting or banquet room pursuant to this para-graph, the establishment may permit smoking incorridors and prefunction areas adjacent to andserving the meeting or banquet room if no em-ployee is stationed in that corridor or area on otherthan a passing basis. (4) Retail or wholesaletobacco shops and private smokers’ lounges. Forpurposes of this paragraph: (A) “Private smokers’lounge” means any enclosed area in or attached toa retail or wholesale tobacco shop that is dedicatedto the use of tobacco products, including, but notlimited to, cigars and pipes. (B) “Retail or whole-sale tobacco shop” means any business establish-ment the main purpose of which is the sale oftobacco products, including, but not limited to,cigars, pipe tobacco, and smoking accessories. (5)Cabs of motortrucks, as defined in Section 410 ofthe Vehicle Code, or truck tractors, as defined inSection 655 of the Vehicle Code, if no nonsmokingemployees are present. (6) Warehouse facilities.For purposes of this paragraph, “warehousefacility” means a warehouse facility with more than100,000 square feet of total floor space, and 20 orfewer full-time employees working at the facility,but does not include any area within such a facilitythat is utilized as office space. (7) Gaming clubs, inwhich smoking is permitted by subdivision (f). Forpurposes of this paragraph, “gaming club” meansany gaming club as defined in Section 19802 of theBusiness and Professions Code or bingo facility asdefined 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 permittedby subdivision (f). For purposes of this paragraph,“bar” or “tavern” means a facility primarily de-voted to the serving of alcoholic beverages forconsumption by guests on the premises, in whichthe serving of food is incidental. “Bar or tavern”includes those facilities located within a hotel,motel, or other similar transient occupancy estab-lishment. However, when located within a buildingin conjunction with another use, including a restau-

rant, “bar” or “tavern” includes only those areasused primarily for the sale and service of alcoholicbeverages. “Bar” or “tavern” does not include thedining areas of a restaurant, regardless of whetheralcoholic beverages are served therein. (9) Theatri-cal production sites, if smoking is an integral part ofthe story in the theatrical production. (10) Medicalresearch or treatment sites, if smoking is integral tothe research and treatment being conducted. (11)Private residences, except for private residenceslicensed as family day care homes, during the hoursof operation as family day care homes and in thoseareas where children are present. (12) Patientsmoking areas in long-term health care facilities, asdefined in Section 1418 of the Health and SafetyCode. (13) Breakrooms designated by employersfor smoking, provided that all of the followingconditions are met: (A) Air from the smoking roomshall be exhausted directly to the outside by anexhaust fan. Air from the smoking room shall notbe recirculated to other parts of the building. (B)The employer shall comply with any ventilationstandard or other standard utilizing appropriatetechnology, including, but not limited to, mechanical,electronic, and biotechnical systems, adopted by theOccupational Safety and Health Standards Boardor the federal Environmental Protection Agency. Ifboth adopt inconsistent standards, the ventilationstandards of the Occupational Safety and HealthStandards Board shall be no less stringent than thestandards adopted by the federal EnvironmentalProtection Agency. (C) The smoking room shall belocated in a nonwork area where no one, as part ofhis or her work responsibilities, is required to enter.For purposes of this paragraph, “work responsibili-ties” does not include any custodial or maintenancework carried out in the breakroom when it isunoccupied. (D) There are sufficient nonsmokingbreakrooms to accommodate nonsmokers. (14)Employers with a total of five or fewer employees,either full-time or part-time, may permit smokingwhere all of the following conditions are met: (A)The smoking area is not accessible to minors. (B)All employees who enter the smoking area consentto permit smoking. No one, as part of his or herwork responsibilities, shall be required to work in anarea where smoking is permitted. An employer


43

who is determined by the division to have usedcoercion to obtain consent or who has required anemployee to work in the smoking area shall besubject to the penalty provisions of Section 6427.(C) Air from the smoking area shall be exhausteddirectly to the outside by an exhaust fan. Air fromthe smoking area shall not be recirculated to otherparts of the building. (D) The employer shallcomply with any ventilation standard or otherstandard utilizing appropriate technology, including,but not limited to, mechanical, electronic, andbiotechnical systems, adopted by the OccupationalSafety and Health Standards Board or the federalEnvironmental Protection Agency. If both adoptinconsistent standards, the ventilation standards ofthe Occupational Safety and Health StandardsBoard shall be no less stringent than the standardsadopted by the federal Environmental ProtectionAgency. This paragraph shall not be construed to(i) supersede or render inapplicable any conditionor limitation on smoking areas made applicable tospecific types of business establishments by anyother paragraph of this subdivision or (ii) apply inlieu of any otherwise applicable paragraph of thissubdivision that has become inoperative. (e)Paragraphs (13) and (14) of subdivision (d) shallnot be construed to require employers to providereasonable accommodation to smokers, or toprovide breakrooms for smokers or nonsmokers.(f) (1) Except as otherwise provided in this subdivi-sion, smoking may be permitted in gaming clubs, asdefined in paragraph (7) of subdivision (d), and inbars and taverns, as defined in paragraph (8) ofsubdivision (d), until the earlier of the following: (A)January 1, 1997. (B) The date of adoption of aregulation (i) by the Occupational Safety andHealth Standards Board reducing the permissibleemployee exposure level to environmental tobaccosmoke to a level that will prevent anything otherthan insignificantly harmful effects to exposedemployees or (ii) by the federal EnvironmentalProtection Agency establishing a standard forreduction of permissible exposure to environmentaltobacco smoke to an exposure level that willprevent anything other than insignificantly harmfuleffects to exposed persons. (2) If a regulationspecified in subparagraph (B) of paragraph (1) is

adopted on or before January 1, 1997, smoking maythereafter be permitted in gaming clubs and in barsand taverns, subject to full compliance with, orconformity to, the standard in the regulation withintwo years following the date of adoption of theregulation. An employer failing to achieve compli-ance with, or conformity to, such a regulationwithin this two-year period shall prohibit smoking inthe gaming club, bar, or tavern until compliance orconformity is achieved. If the Occupational Safetyand Health Standards Board and the federalEnvironmental Protection Agency both adoptregulations specified in subparagraph (B) ofparagraph (1) that are inconsistent, the regulationsof the Occupational Safety Standards Board shallbe no less stringent than the regulations of thefederal Environmental Protection Agency. (3) If aregulation specified in subparagraph (B) of para-graph (1) is not adopted on or before January 1,1997, the exemptions specified in paragraphs (7)and (8) of subdivision (d) shall be inoperative onand after January 1, 1997, until such a regulation isadopted. Upon adoption of such a regulation on orafter January 1, 1997, smoking may thereafter bepermitted in gaming clubs and in bars and taverns,subject to full compliance with, or conformity to,the standard in the regulation within two yearsfollowing the date of adoption of the regulation. Anemployer failing to achieve compliance with, orconformity to, such a regulation within this two-year period shall prohibit smoking in the gamingclub, bar, or tavern until compliance or conformityis achieved. If the Occupational Safety and HealthStandards Board and the federal EnvironmentalProtection Agency both adopt regulations specifiedin subparagraph (B) of paragraph (1) that areinconsistent, the regulations of the OccupationalSafety Standards Board shall be no less stringentthan the regulations of the federal EnvironmentalProtection Agency. (g) The smoking prohibition setforth in this section shall constitute a uniformstatewide standard for regulating the smoking oftobacco products in enclosed places of employmentand shall supersede and render unnecessary thelocal enactment or enforcement of local ordinancesregulating the smoking of tobacco products in

44

enclosed places of employment. Insofar as thesmoking prohibition set forth in this section isapplicable to all (100 percent of) places of employ-ment within this state and, therefore, provides themaximum degree of coverage, the practical effectof this section is to eliminate the need of localgovernments to enact enclosed workplace smokingrestrictions within their respective jurisdictions. (h)Nothing in this section shall prohibit an employerfrom prohibiting smoking in an enclosed place ofemployment for any reason. (i) The enactment oflocal regulation of smoking of tobacco products inenclosed places of employment by local govern-ments shall be suspended only for as long as, and tothe extent that, the (100 percent) smoking prohibi-tion provided for in this section remains in effect. Inthe event this section is repealed or modified bysubsequent legislative or judicial action so that the(100 percent) smoking prohibition is no longerapplicable to all enclosed places of employment inCalifornia, local governments shall have the fullright and authority to enforce previously enacted,and to enact and enforce new, restrictions on thesmoking of tobacco products in enclosed places ofemployment within their jurisdictions, including acomplete prohibition of smoking. Notwithstandingany other provision of this section, any area notdefined as a “place of employment” or in which thesmoking is not regulated pursuant to subdivision (d)or (e), shall be subject to local regulation of smok-ing of tobacco products. (j) Any violation of theprohibition set forth in subdivision (b) is an infrac-tion subject to subdivision (d) of Section 17 of thePenal Code and, notwithstanding Section 19.8 of

the Penal Code, is punishable by a fine not toexceed one hundred dollars ($100) for a firstviolation, two hundred dollars ($200) for a secondviolation within one year, and five hundred dollars($500) for a third and for each subsequent violationwithin one year. This subdivision shall be enforcedby local law enforcement agencies including, butnot limited to, local health departments, as deter-mined by the local governing body. (k) Notwith-standing Section 6309, the division shall not berequired to respond to any complaint regarding thesmoking of tobacco products in an enclosed spaceat a place of employment, unless the employer hasbeen found guilty pursuant to subdivision (j) of athird violation of subdivision (b) within the previousyear. (l) If any provision of this act or the applica-tion thereof to any person or circumstances is heldinvalid, that invalidity shall not affect other provi-sions or applications of the act that can be giveneffect without the invalid provision of application,and to this end the provisions of this act are sever-able. SEC. 2. No reimbursement is required by thisact pursuant to Section 6 of Article XIIIB of theCalifornia Constitution because the only costswhich may be incurred by a local agency or schooldistrict will be incurred because this act creates anew crime or infraction, changes the definition of acrime or infraction, changes the penalty for a crimeor infraction, or eliminates a crime or infraction.Notwithstanding Section 17580 of the GovernmentCode, unless otherwise specified in this act, theprovisions of this act shall become operative on thesame date that the act takes effect pursuant to theCalifornia Constitution.


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APPENDIX B

Assembly Bill 3037Delaying for one year the effective date of AB 13 for bars, taverns & gaming clubs

Assembly Bill No. 3037

CHAPTER 989

An act to amend Section 6404.5 of the Labor Code, relating to employment.

[Approved by Governor September 27, 1996. Filed with Secretary of State September 27, 1996.]

AB 3037, Cannella. Places of employment:smoking.

Existing law, with delineated exceptions, prohibitssmoking of tobacco products in enclosed spacesat places of employment. Among the exceptions inexisting law are specified bars and taverns andgaming clubs, but these exceptions are suspendedon January 1, 1997, unless and until the Occupa-tional Safety and Health Standards Board or theEnvironmental Protection Agency adopts pre-scribed standards for reducing employee expo-sure to secondhand smoke. Under existing law,once those standards have been adopted, acondition to continuance of the exemption is

conformity with the standards within 2 yearsfollowing their adoption.

This bill would extend from January 1, 1997, toJanuary 1, 1998, the date by which the standardsboard or Environmental Protection Agency mustadopt those standards for employee exposure tosecondhand smoke in order to permit continuanceof the exemption for bars and taverns and gamingclubs. However, in order to qualify for this ex-emption in 1997, the bill would require that, ifpracticable, the gaming club, bar, or tavernestablish a designated nonsmoking area and that,if feasible, not require any employee, in theperformance of ordinary work responsibilities, toenter any area in which smoking is permitted.

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APPENDIX C

CALIFORNIA STATE LABOR CODE SECTIONS 6404 & 6404.5(Formerly, Assembly Bill 13)

As it became effective for bars taverns and gaming clubs on January 1, 1998

6404.

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

6404.5.

(a) The Legislature finds and declares that regula-tion of smoking in the workplace is a matter ofstatewide interest and concern. It is the intentof the Legislature in enacting this section toprohibit the smoking of tobacco products inall (100 percent of) enclosed places ofemployment in this state, as covered by thissection, thereby eliminating the need of localgovernments to enact workplace smokingrestrictions within their respective jurisdictions.It is further the intent of the Legislature tocreate a uniform statewide standard to restrictand prohibit the smoking of tobacco productsin enclosed places of employment, as speci-fied in this section, in order to reduce em-ployee exposure to environmental tobaccosmoke to a level that will prevent anythingother than insignificantly harmful effects toexposed employees, and also to eliminate theconfusion and hardship that can result fromenactment or enforcement of disparate localworkplace smoking restrictions. Notwith-standing any other provision of this section, itis the intent of the Legislature that any area notdefined as a “place of employment” pursuantto subdivision (d) or in which the smoking oftobacco products is not regulated pursuant tosubdivision (e) shall be subject to localregulation of smoking of tobacco products.

(b) No employer shall knowingly or intentionallypermit, and no person shall engage in, thesmoking of tobacco products in an enclosedspace at a place of employment.

(c) For purposes of this section, an employerwho permits any non employee access to hisor her place of employment on a regular basishas not acted knowingly or intentionally if heor she has taken the following reasonablesteps to prevent smoking by a non employee:

(1) Posted clear and prominent signs, asfollows:

(A) Where smoking is prohibited through-out the building or structure, a signstating “No smoking” shall be postedat each entrance to the building orstructure.

(B) Where smoking is permitted indesignated areas of the building orstructure, a sign stating “Smoking isprohibited except in designatedareas” shall be posted at each en-trance to the building or structure.

(2) Has requested, when appropriate, that anon-employee who is smoking refrainfrom smoking in the enclosed workplace.For purposes of this subdivision, “reason-able steps” does not include

(A) the physical ejection of a non em-ployee from the place of employmentor


47

(B) any requirement for making a requestto a non employee to refrain fromsmoking, under circumstancesinvolving a risk of physical harm tothe employer or any employee.

(d) For purposes of this section, “place ofemployment” does not include any of thefollowing:

(1) Sixty-five percent of the guest room accom-modations in a hotel, motel, or similar tran-sient-lodging establishment.

(2) Areas of the lobby in a hotel, motel, or othersimilar transient lodging establishment desig-nated for smoking by the establishment. Anestablishment may permit smoking in a desig-nated lobby area that does not exceed 25percent of the total floor area of the lobby or,if the total area of the lobby is 2,000 squarefeet or less, that does not exceed 50 percentof the total floor area of the lobby. Forpurposes of this paragraph, “lobby” means thecommon public area of an establishment inwhich registration and other similar or relatedtransactions, or both, are conducted and inwhich the establishment’s guests and membersof the public typically congregate.

(3) Meeting and banquet rooms in a hotel, motel,other transient lodging establishment similar toa hotel or motel, restaurant, or public conven-tion center, except while food or beveragefunctions are taking place, including setup,service, and cleanup activities, or when theroom is being used for exhibit purposes. Attimes when smoking is not permitted in ameeting or banquet room pursuant to thisparagraph, the establishment may permitsmoking in corridors and pre-function areasadjacent to and serving the meeting or ban-quet room if no employee is stationed in that

corridor or area on other than a passing basis.

(4) Retail or wholesale tobacco shops and privatesmokers’ lounges. For purposes of thisparagraph:

(A) “Private smokers’ lounge” means anyenclosed area in or attached to a retail orwholesale tobacco shop that is dedicatedto the use of tobacco products, including,but not limited to, cigars and pipes.

(B) “Retail or wholesale tobacco shop”means any business establishment themain purpose of which is the sale oftobacco products, including, but notlimited to, cigars, pipe tobacco, andsmoking accessories.

(5) Cabs of motor trucks, as defined in Section410 of the Vehicle Code, or truck tractors, asdefined in Section 655 of the Vehicle Code, ifno nonsmoking employees are present.

(6) Warehouse facilities. For purposes of thisparagraph, “warehouse facility” means awarehouse facility with more than 100,000square feet of total floor space, and 20 orfewer full-time employees working at thefacility, but does not include any area within afacility that is utilized as office space.

(7) Gaming clubs, in which smoking is permittedby subdivision (f). For purposes of thisparagraph, “gaming club” means any gamingclub, as defined in Section 19802 of theBusiness and Professions Code, or bingofacility, as defined in Section 326.5 of thePenal Code, that restricts access to minorsunder 18 years of age.

(8) Bars and taverns, in which smoking is permit-

48

ted by subdivision (f). For purposes of thisparagraph, “bar” or “tavern” means a facilityprimarily devoted to the serving of alcoholicbeverages for consumption by guests on thepremises, in which the serving of food isincidental. “Bar or tavern” includes thosefacilities located within a hotel, motel, or othersimilar transient occupancy establishment.However, when located within a building inconjunction with another use, including arestaurant, “bar” or “tavern” includes onlythose areas used primarily for the sale andservice of alcoholic beverages. “Bar” or“tavern” does not include the dining areas of arestaurant, regardless of whether alcoholicbeverages are served therein.

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

(10) Medical research or treatment sites, ifsmoking is integral to the research and treat-ment being conducted.

(11) Private residences, except for private resi-dences licensed as family day care homes,during the hours of operation as familydaycare homes and in those areas wherechildren are present.

(12) Patient smoking areas in long-term healthcare facilities, as defined in Section 1418 ofthe Health and Safety Code.

(13) Breakrooms designated by employers forsmoking, provided that all of the followingconditions are met:

(A) Air from the smoking room shall beexhausted directly to the outside by anexhaust fan. Air from the smoking roomshall not be recirculated to other parts ofthe building.

(B) The employer shall comply with anyventilation standard or other standardutilizing appropriate technology, including,but not limited to, mechanical, electronic,and biotechnical systems, adopted by theOccupational Safety and Health Stan-dards Board or the federal EnvironmentalProtection Agency. If both adopt incon-sistent standards, the ventilation standardsof the Occupational Safety and HealthStandards Board shall be no less stringentthan the standards adopted by the federalEnvironmental Protection Agency.

(C) The smoking room shall be located in anon-work area where no one, as part ofhis or her work responsibilities, is re-quired to enter. For purposes of thisparagraph, “work responsibilities” doesnot include any custodial or maintenancework carried out in the breakroom whenit is unoccupied.

(D) There are sufficient nonsmokingbreakrooms to accommodate nonsmok-ers.

(14)Employers with a total of five or feweremployees, either full-time or part-time, maypermit smoking where all of the followingconditions are met:

(A) The smoking area is not accessible tominors.

(B) All employees who enter the smokingarea consent to permit smoking. No one,as part of his or her work responsibilities,shall be required to work in an areawhere smoking is permitted. An em-ployer who is determined by the divisionto have used coercion to obtain consentor who has required an employee to


49

work in the smoking area shall be subjectto the penalty provisions of Section6427.

(C) Air from the smoking area shall beexhausted directly to the outside by anexhaust fan. Air from the smoking areashall not be recirculated to other parts ofthe building.

(D) The employer shall comply with anyventilation standard or other standardutilizing appropriate technology, includ-ing, but not limited to, mechanical,electronic, and biotechnical systems,adopted by the Occupational Safety andHealth Standards Board or the federalEnvironmental Protection Agency. If bothadopt inconsistent standards, the ventila-tion standards of the Occupational Safetyand Health Standards Board shall be noless stringent than the standards adoptedby the federal Environmental ProtectionAgency.

This paragraph shall not be construed to (i)supersede or render inapplicable any condition orlimitation on smoking areas made applicable tospecific types of business establishments by anyother paragraph of this subdivision or (ii) apply inlieu of any otherwise applicable paragraph of thissubdivision that has become inoperative.

(e) Paragraphs (13) and (14) of subdivision (d)shall not be construed to require employers toprovide reasonable accommodation tosmokers, or to provide breakrooms forsmokers or nonsmokers.

(f) (1) Except as otherwise provided in thissubdivision, smoking may be permitted ingaming clubs, as defined in paragraph (7) ofsubdivision (d), and in bars and taverns, asdefined in paragraph (8)of subdivision (d),

until the earlier of the following:

(A) The date of adoption of a regulation (i) bythe Occupational Safety and HealthStandards Board reducing the permissibleemployee exposure level to environmentaltobacco smoke to a level that will preventanything other than insignificantly harmfuleffects to exposed employees or (ii) bythe federal Environmental ProtectionAgency establishing a standard forreduction of permissible exposure toenvironmental tobacco smoke to anexposure level that will prevent anythingother than insignificantly harmful effects toexposed persons.

(2) If a regulation specified in subparagraph (B)of paragraph (1) is adopted on or beforeJanuary 1, 1998, smoking may thereafter bepermitted in gaming clubs and in bars andtaverns, subject to full compliance with, orconformity to, the standard in the regulationwithin two years following the date of adop-tion of the regulation. An employer failing toachieve compliance with, or conformity to, theregulation within this two-year period shallprohibit smoking in the gaming club, bar, ortavern until compliance or conformity isachieved. If the Occupational Safety andHealth Standards Board and the federalEnvironmental Protection Agency both adoptregulations specified in subparagraph (B) ofparagraph (1) that are inconsistent, theregulations of the Occupational Safety Stan-dards Board shall be no less stringent than theregulations of the federal EnvironmentalProtection Agency.

(3) If a regulation specified in subparagraph (B)of paragraph (1) is not adopted on or beforeJanuary 1, 1998, the exemptions specified in

50

paragraphs (7) and (8) of subdivision (d) shallbe inoperative on and after January 1, 1998,until a regulation is adopted. Upon adoptionof such a regulation on or after January1,1998, smoking may thereafter be permittedin gaming clubs and in bars and taverns,subject to full compliance with, or conformityto, the standard in the regulation within twoyears following the date of adoption of theregulation. An employer failing to achievecompliance with, or conformity to, the regula-tion within this two-year period shall prohibitsmoking in the gaming club, bar, or tavern untilcompliance or conformity is achieved. If theOccupational Safety and Health StandardsBoard and the federal Environmental Protec-tion Agency both adopt regulations specifiedin subparagraph (B) of paragraph (1) that areinconsistent, the regulations of the Occupa-tional Safety and Health Standards Boardshall be no less stringent than the regulationsof the federal Environmental ProtectionAgency.

(4) From January 1, 1997, to December 31,1997, inclusive, smoking may be permitted ingaming clubs, as defined in paragraph (7) ofsubdivision (d), and in bars and taverns, asdefined in paragraph (8)of subdivision (d),subject to both of the following conditions:

(A) If practicable, the gaming club or bar ortavern shall establish a designated non-smoking area.

(B) If feasible, no employee shall be required,in the performance of ordinary workresponsibilities, to enter any area in whichsmoking is permitted.

(g) The smoking prohibition set forth in thissection shall constitute a uniform statewidestandard for regulating the smoking of to-

bacco products in enclosed places of employ-ment and shall supersede and render unneces-sary the local enactment or enforcement oflocal ordinances regulating the smoking oftobacco products in enclosed places ofemployment. Insofar as the smoking prohibi-tion set forth in this section is applicable to all(100 percent of) places of employment withinthis state and, therefore, provides the maxi-mum degree of coverage, the practical effectof this section is to eliminate the need of localgovernments to enact enclosed workplacesmoking restrictions within their respectivejurisdictions.

(h) Nothing in this section shall prohibit anemployer from prohibiting smoking in anenclosed place of employment for any reason.

(i) The enactment of local regulation of smokingof tobacco products in enclosed places ofemployment by local governments shall besuspended only for as long as, and to theextent that, the (100 percent) smoking prohi-bition provided for in this section remains ineffect. In the event this section is repealed ormodified by subsequent legislative or judicialaction so that the (100 percent) smokingprohibition is no longer applicable to allenclosed places of employment in California,local governments shall have the full right andauthority to enforce previously enacted, andto enact and enforce new, restrictions on thesmoking of tobacco products in enclosedplaces of employment within their jurisdic-tions, including a complete prohibition ofsmoking. Notwithstanding any other provisionof this section, any area not defined as a“place of employment” or in which the smok-ing is not regulated pursuant to subdivision (d)or (e), shall be subject to local regulation ofsmoking of tobacco products.


51

(j) Any violation of the prohibition set forth insubdivision (b) is an infraction, punishable bya fine not to exceed one hundred dollars($100) for a first violation, two hundreddollars ($200) for a second violation withinone year, and five hundred dollars ($500) fora third and for each subsequent violationwithin one year. This subdivision shall beenforced by local law enforcement agenciesincluding, but not limited to, local healthdepartments, as determined by the localgoverning body.

(k) Notwithstanding Section 6309, the divisionshall not be required to respond to any

complaint regarding the smoking of tobaccoproducts in an enclosed space at a place ofemployment, unless the employer has beenfound guilty pursuant to subdivision (j) of athird violation of subdivision (b) within theprevious year.

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

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APPENDIX D

CHRONOLOGICAL OUTLINE OF PREPARATION AND IMPLEMENTATIONACTIVITIES FOR THE CALIFORNIA SMOKE-FREE WORKPLACE ACT

Interventions

1994AB 13 (Labor Code 6404.5) passed inlegislature (7/94)Governor signs bill into law (9/94)Proposition 188 “Philip Morris Initiative”defeated. (11/94)Materials development: AB 13 brochure,implementation kit, fact sheets etc. (11/94)AB 13 Information Training given in Northernand Southern CA. (12/94)

1995Labor Code 6404.5 takes effect in restau-rants and other workplaces January 1,1995.Implementation Kits: sent to local lead agen-cies, cities, regions, voluntaries, the CaliforniaRestaurant Assn., and businesses uponrequest.Mailing from League of California Cities/Smoke-Free Cities Project to city managersMedia and PR kits developed and distributedto local lead agencies.Training given at League of California Citiesevents and annual conference.Spokesperson training for local mediacontacts throughout the state.

1996Anniversary Update and Press Kit Packets tolocal lead agencies: “One Year Later” (12/95)Update Packet sent to State Legislators(6/96)

California Smoke-Free Cities Project presen-tation of “The Latest on Smoking Ordinances”at Mayors and City Council Members Execu-tive Forum (7/96)Survey for Bar Plan ideas: LLAs, regions,ethnic networks, grantees and voluntaries.(7/96)Canella Bill (AB 3037) signed by Gov.Wilson; TCS established new timeline for barimplementation plan (9/96)California Smoke-Free Cities Project andTCS present “Tobacco Control Regulations”to Code Enforcers’ Conference, Ventura, CA(9/96)California Smoke-Free Cities Project pre-sents “The Tobacco Industry & CaliforniaSmoke-Free Cities” and “Smoke-Free CitiesUpdate: Suing the Tobacco Industry” atLeague of California Cities Conference,Anaheim (10/96)Smoke-Free Bar Workgroup Meeting,including bar owners, in large planning effortfor state/local implementation (11/96)AB 3037 Press Release distributed by TCSannouncing AB 3037 extension and supportfor smoke-free bars (12/96)

1997Smoke-Free Bar Implementation Plansdeveloped and reviewed (1/97 – 5/97)BREATH, The California Smoke-free BarProgram (a project of the American LungAssociation) is established and becomes aProposition 99 Grantee of TCS (3/97)Smoke-Free Bar Brochure completed (3/97)


53

Smoke-Free Bar Media Plan developed (5/97)First Field Poll study of California adults andsmoke-free bars conducted (7/97)Smoke-Free Bar Focus Groups conductedfor media plan (6/97)Social Will Index Survey used by BREATH toprioritize ‘lead’ cities and counties (6/97)First Field Poll study of California adults andsmoke-free bars released (7/97)Plan Developed for Bar-Owner Presentationsin cities and counties (8/97)Pilot Presentations to Bar Owners andManagers begin (9/97)Second Smoke-Free Bar Brochure com-pleted and mailed to all California bar owners(12/97)

1998Labor Code 6404.5 takes effect in barsand gaming clubs (1/1/98)Smoke-Free Bar Implementation Trainingsdeveloped and conducted (1/98 – 9/98)Second Field Poll study of California barpatrons and smoke-free bars conducted(3/98)Field Poll of bar workers/owners conductedfor program planning (3/98)Second Field Poll study of California barpatrons and smoke-free bars released (6/98)Third Field Poll study of California barpatrons and smoke-free bars conducted(8/98)Third Field Poll study of California barpatrons and smoke-free bars released (10/98)California Adult Tobacco Survey (CATS)Comparison results released (10/98)Curriculum for Mixology and Dealer Schoolscompleted and distributed (11/98)

Tourism Information collected from CaliforniaTrade and Commerce Agency (11/98)Anniversary Communications kit developedand released (12/98)UCSF Bartender Health Study results re-leased (JAMA-12/98)

1999Smoke-free Bar Legal Binders distributed byBREATH to law enforcers (1/99)Regional Law Enforcement Trainings con-ducted throughout California (2/99-5/99)Smoke-free bar policy leadership trainingsdeveloped and conducted (2/99-12/99)“Clearing the Air in the New Millennium”Conference (9/99)Annual Sales Tax Figures available fromBoard of Equalization (11/99)

2000Fourth Field Poll study of California barpatrons and smoke-free bars conducted(7/00)Fourth Field Poll study of California barpatrons and smoke-free bars released (10/00)Shasta County refers two repeat offenders toCal-OSHA (12/00)Private attorneys begin Unfair BusinessPractices Cases in selected cities (12/00)

2001Cal-OSHA fines two recalcitrant bars$54,000.00 each in Shasta County (1/01)Grants from Master Settlement Agreementfunds for enforcement of LC 6404.5 (2/01)National Second Hand Smoke (ETS) Confer-ence-San Diego, CA (5/01)

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APPENDIX E

RESOURCES

Tobacco Control SectionCalifornia Department of Health ServicesP.O. Box 942732, MS #555Sacramento, CA 94234-7320Website: www.dhs.ca.gov/tobacco

BREATH,The California Smoke-free Bars, Workplacesand Communities ProgramA Statewide Project of the American Lung Asso-ciation of the East Bay5495 Carlson Drive, Suite DSacramento, CA 95819Phone: 916-739-8925FAX: 916-739-8927Email: [email protected]: www.breath-ala.org

Tobacco Education Clearinghouse ofCalifornia (TECC)ETR AssociatesP.O. Box 1830Santa Cruz, CA 95061-1830Phone: 800-258-9090 (831) 438-4822FAX: 831-438-3618Website: www.tecc.org

Technical Assistance Legal Center (TALC)Public Health Institute505 14th Street, Suite 810Oakland, CA 94612Phone: 510-444-8252FAX: 510-444-8253Email: [email protected]: www.phi.org/talc


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ACKNOWLEDGMENTS

The tobacco control movement in California didnot begin with the passage of Proposition 99, theCalifornia Tobacco tax, in 1988. Many committedagencies and individuals began advocating forsmoke-free environments long before that. Theformulation of the Tobacco Control Section withinthe Department of Health Services and the fundingof county health departments and communityagencies statewide simply fortified an alreadyexisting effort statewide. The authors would like tothank the following: the hundreds of people andagencies that aided in the passage and implemen-

tation of smoke-free laws at both the local andstate level; the dozens of committed local tobaccocontrol professionals who contributed their timeand expertise, and personal insight included in thisdocument; and specifically, the dedicated advo-cates of Americans for Nonsmokers’ RightsFoundation, the American Lung Association, theAmerican Cancer Society, and the AmericanHeart Association.


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a case study - smokefree englandsmokefreeengland.co.uk/files/smokefreeworkplace... · a case study....

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