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01-17-1995 - Implementation of AB 13City of West Covina Memorandum To: Ci Council AGE.NFDA ITEM No. Ua FROM: City Manager's Office DATE 1/17/95 ®PRINTED ON RECYCLED PAPER SUBJECT: IMPLEMENTATION OF AB 13 �i TMMARY_ On January 1, 1995; AB 13 became effective initiating a No -Smoking provision in all enclosed places of employment. Included in the bill is a provision for the City to become the local enforcement agency by designating an enforcement department. On July 21, 1994, Governor Wilson signed AB 13 which generally prohibits smoking in enclosed places of employment, with the exception of fourteen specific areas not included in the definition of a place of employment. AB 13 (Chapter 310 Statutes of 1994), adds Section 6404.5 to the Labor Code. It became effective on January 1, 1995. Enforcement of AB 13 is "by local law enforcement agencies, including but not limited to local heath departments, as determined by the local governing body" (Section 6404.50)). AB 13 supersedes existing local ordinances regarding smoking in the workplace which are weaker than the standard established in AB 13. However, existing stronger ordinances remain in effect. Also, AB 13 allows local governments to enact new ordinances that are stronger than the standard established in AB 13. Additionally, AB 13 does not prevent cities and counties from regulating smoking and tobacco in other areas not covered by the workplace regulations, such as outdoor restaurants, stadiums, other outdoor areas, juvenile access, or tobacco vending machines. An "enclosed". place of employment is basically defined as any place of employment; with walls and a ceiling. This includes partitioned, individual offices within a larger office space. The fourteen exceptions or areas not included in the definition of a place of employment in AB 13 are: 1 - HOTEL./MOTEL. G1 ST ROOMS: Sixty-five percent of guest rooms in''a hotel, motel, or similar transient lodging establishment may be set aside for smokers. This means that at least thirty-five percent of hoteUmotel sleeping rooms must be non-smoking rooms. " 2 - HOTELIMOTEL. LOBBIES: Smoking is permitted in a designated hotel/motel lobby area that does not exceed 25 percent of the total floor area of the lobby, or, if the total area of the lobby is 2,000 square feet or less, that does not exceed 50 percent of the total floor area of the lobby. Lobby means the common public area of a hotel/motel in which registration and other similar activities are conducted and in which the establishment's guests and members of the public congregate. 3 - MEETING AND BANQUET ROOMS: Smoking is permitted in meeting and banquet rooms only during private functions in a hotel, motel, or other transient lodging establishment similar to a hotel, motel, restaurant, or public convention center. However, smoking is not permitted when food or beverage functions `are taking place, including setup, service, and cleanup activities, or when the room is used for exhibit purposes. At a time when smoking is not permitted, the establishment may Ipermit smoking in corridors and pre -function areas adjacent to and serving the meeting room if no employee is stationed in that corridor or area, other than on a passing basis. i Thus, if a hotel, motel, restaurant, or convention center has meeting or banquet rooms, smoking is permitted eke during food or beverage service, which includes setup and cleanup- 4 - TOBACCO SHOPS/SMOKERS' LOUNGES: Smoking is permitted in any business whose main purpose is the sale of tobacco products and accessories. . Smoking also is permitted in any enclosed area in or attached to a retail or wholesale tobacco shop that. is dedicated to the use of tobacco products. 5 - TRUCK CABS: Smoking is permitted in the cab of motortrucks or truck tractors, if no nonsmoking employees are present. 6 - WAREHOUSE FACILITIES: Smoking is permitted in a warehouse facility, defined as a warehouse. with more than 100,000 square feet of total floor space and 20 or fewer full-time employees working at the facility. However, smoking is not permitted in any area within such a facility that is utilized as office space. 7 - GA_ 41NG AND BINSmoking is permitted in gaming clubs if the establishment complies with specified ventilation standards, described below in section 8a. A gaming club is defined according to Section 19802 of the Business and Professions Code: a bingo facility is defined according to Section 326.5 of the Penal Code that restricts access to minors under the age of 18. 8 - BARS AND TAVERNS: Smoking is permitted in bars and taverns if they meet the ventilation standards described below in Section 8,,1. For the purposes of AB 13, a bar or tavern means a facility primarily devoted to the serving of alcoholic beverages, in which the serving of food is incidental. A bar or tavern can be freestanding, but also includes those facilities located within a hotel or motel or other transient occupancy establishment. When a bar or tavern is located in conjunction with another use, such as a restaurant, the definition of a bar or tavern applies only to those areas used primarily for the sale and service of alcoholic beverages. Bar or tavern does W include the dining areas of a restaurant, regardless of whether alcohol is served in them. A bar that is. part of a restaurant must comply with the ventilation criteria described below. a. Ventilation Standards for Q=ingClubs and Bars: AB 13 permits. smoking in gaming clubs, (as described.in paragraph 7) and bars/taverns (as described in paragraph 8), until the earlier of the following: (1) January 1, 1997; or (2),the date of adoption of regulations by the Occupational Safety and Health Standards Board (Cal -OSHA) or the Federal EPA reducing the permissible employee exposure level to environmental tobacco smoke to a level that will prevent anything other than insignificantly harmful effects to exposed employees. If such a regulation is adopted on or before January 1, 1997, smoking is permitted in gaming clubs and bars, if they fully comply with the regulations within two years of adoption of the regulations. If the two agencies adopt inconsistent regulations, the stricter regulation prevails. If a ventilation standard is not adopted by January 1, 1997, AB 13 prohibits smoking in gaming clubs and bars. This prohibition remains until a regulation is adopted. If a regulation is adopted after January 1, 1997, an establishment has two years in which to come into full compliance with the ventilation regulation. During that time, smoking would be permitted. If the establishment fails to come into full compliance during that two year period, then smoking would be prohibited. (It is important to remember that in spite of these provisions of AB 13, if a city wishes to prohibit smoking in gaming clubs and bars, even with a ventilation standard, it may do so.) 9 - THEATRICAL. PRODUCTIONS: Smoking is permitted at theatrical production sites (movie or television production sets and live theater) if smoking is an integral part of the story. 10 -MEDICAL RESEARC /'TREATMENT SITES• Smoking is permittedjat medical research or treatment sites if smoking is integral to the research or treatment_ being conducted. 11 - Smoking is permitted in private residences; except for ihose residences licensed as family day care homes. In those cases, smoking is prohibited during the hours when the home is used as a family day care home 'and in those areas where children are present. i 12 -PATIENT SMOKiNCTAREAS* Smoking is permitted in patient smoking areas of long term health care facilities, as defined in Section 1418 of the Health 11 and Safety�'Code. ' This generally includes any licensed facility that is a skilled nursing, intermediate care, developmentally, disabled, or congregate care. facility. 13 - EBM OYEE B F. KROOMS: Smoking is permitted in employer designatedsmoking rooms,' provided all of the following conditions are met: a. Air from the smoking room shall be exhausted directly to the outside. Aire from the smoking room shall not be recirculated to other parts of ;the building. b. The employer shall .comply with any ventilation standard or other i standard utilizing appropriate technology, adopted by the Occupational Safety and Health Standards Board, or the federal EPA; whichever is --stronger. c. The smoking room shall be located in a nonwork area where no one, as part of his or her job responsibilities, is required to enter. Job responsibilities do not include any custodial or maintenance work carried outJwhen the room is unoccupied., d. There are sufficient nonsmoking breakrooms to accommodate nonsmoking employees. 14 - SMALI L. BUSINESSES AB 13 permits smoking in places of employment with five of fewer full- or part -tune employees, iLa of the following conditions are met: a. The smoking area is not accessible to minors. . b. All employees consent to smoking in the area, and such consent is;not c. Air from the smoking area is exhausted directly to the outside and is not recirculated to other parts of the building, l d. The employer complies with ventilation standards described above for breakrooms (paragraph 13). , .I The provisions of this small business exception do not supersede or make inapplicable any other conditions applicable to other establishments, such as bars or taverns. I In interpreting the small business provision, it is important to remember that for smoking toI be permitted in businesses with five or fewer employees, all four conditions must be met. The two key provisions are that the smoking area is not 3 accessible to minors and that a ventilation system that meets specified criteria must be installed. Because the Unruh Civil Rights Act prohibits arbitrary discrimination, it is impermissible for a business to deny access to minors (unless minors may not legally participate in the business activity, such as gambling or consumption of alcohol). Thus; the operative effect of this exception is very limited. Paragraphs 13 and 14 are not to be interpreted to require employers to provide reasonable accommodations to smokers or to provide breakrooms for smokers or nonsmokers. AB, 13 provides that no person shall smoke in an enclosed place of employment and employers shall not knowingly or intentionally permit smoking in an enclosed place of employment. An employer who has taken reasonable steps to prevent smoking is not liable if a nonemployee enters the place of employment and smokes. These reasonable steps include posting clear and prominent signs where appropriate, requesting that the employee refrain from smoking. Where smoking is prohibited throughout a building or structure, a sign stating " No Smoking", must be posted at each entrance to the building. Where smoking is permitted in designated areas of the building or structure, a sign stating "Smoking is prohibited except in designated areas" must be posted at each entrance to the building- or structure. Reasonable steps do not include physical ejection of a non - employee, or any requirement for making a request of a nonemployee to refrain from smoking which might involve risk of physical harm to the employee or employer. Staff has posted `'No Smoking" signs at entrances to all City buildings in compliance with City policy and AB 13. Enforcement of AB 13 is to be carried; out by local law enforcement agencies, including but not limited to, local health departments, as determined by the local governing body. That is, an individual city may determine which department shall enforce the provisions of AB 13 locally. The local governing body may determine the enforcement entity to be the Police Department or another city department. AB 13 clearly provides that the entity which enforces the measure locally is to be determined by the City Council. Staff is recommending that the Police Department be the City's enforcement agency since enforcement action can occur anytime, that businesses or restaurants are open in the city. While this may become a Priority Three call, it should not necessitate overtime to issue citations for violating the provisions of AB 13. Enforcement actions would be on a complaint only basis; the City would not take a pro -active enforcement approach to this issue. A violation of AB .13 is an infraction subject to subdivision (d) of Section.17 of the Penal Code. It is punishable by a fine not to exceed $100 for the first violation, $200 for a second violation within one year, and $500 for a third or for each subsequent violation within one year. Under the Labor Code, the. Division. of Occupational Safety (Cal -OSHA) is charged with enforcing worker safety violations. Subsection (k) of AB 13 provides that Cal -OSHA must respond only after an employer has violated the bill's provisions three times. That is, after three violations, Cal -OSHA will respond to a complaint filed by an employee of the place of employment. Also, Cal -OSHA enforcement is limited to investigation of employee complaints against employers, not citizen complaints. Therefore, Cal -OSHA will not investigate a complaint from a restaurant or hotel customer. investigation is subject to local enforcement. �• 4 That type of PUBLIC AND BUSINESS AWARENESS The Chamber of Commerce of West Covina published a column in its January 1995', issue of Outlook informing the business community of the new law (copy attached). The newsletter is distributed to every business in the City, whether they are Chamber members or not. During the Proposition 188 discussions this fall, the provisions of AB 13 vs. Prop. 188 were discussed in the newspaper, on television, and in direct mail pieces distributed by both sides of the issue. It is our belief that the public is aware of the new law and most businesses are being advised by their trade organizations as to how it applies to their individual circumstance. RFCONEWENDATION: It is recommended that the City Council designate the Police Department as the City"s Enforcement Agent for AB 13.. �u strative Analyst II 5 .t r Assembly Bill No. 13 CHAPTER 310 An act to add Section 6404.5 to the Labor Code, relating to occupational safety and health. . [Approved by Governor July 21, 1994. Filed with Secretary of State July 21, 1994.1 LEGISLATIVE COUNSEL'S DIGEST AB 13, T. Friedman. Occupational safety and health:. tobacco products. The existing California Occupational Safety and Health Act. of 1973, administered and enforced by the Division of Occupational Safety and Health within the Department of Industrial Relations, prohibits any employer from occupying or maintaining any place of employment that is not safe and healthful. It also provides, under specified circumstances, for misdemeanor penalties with respect to violations. of the act, except where another penalty is specifically provided. This bill would additionally prohibit any employer from knowingly or intentionally permitting, .or any person from engaging in, the smoking of tobacco products in an enclosed space at specified places. of employment. The bill would specify that, for purposes of these provisions; "place of employment" does not include certain portions of a hotel, motel, or other lodging establishments, meeting or banquet rooms subject to certain exceptions, retail or wholesale tobacco shops, private smoker's Idlinges, cabs of motortrucks.or truck tractors as specified, bars and taverns and gaming clubs subject to, certain prescribed conditions, warehouse facilities, theatrical production sites, and medical research or treatment sites, employee breakrooms under prescribed conditions, patient smoking areas in long-term health care facilities; as defined, and specified smoking areas designated by employers with fewer than. 5 employees. It would also specify that, for purposes of these provisions, an employer who permits . any nonemployee access to his or her place of employment on a regular basis has not acted knowingly or intentionally if he or she has taken certain reasonable steps to prevent smoking by a nonemployee. This bill would also specify that the smoking prohibition set forth in these provisions shall constitute a uniform statewide standard for regulating the smoking of tobacco products in- .enclosed places of employment, and shall supersede and render unnecessary specified local ordinances regulating the smoking of : tobacco products in enclosed places of employment. This bill would additionally provide that a violation of the smoldng prohibition set forth in these provisions is an infraction punishable by 86 90 Chi 310 —2— — 3 — Ch. 310 00 specified fines. It would further provide that the smoking prohibition shall be enforced by local law enforcement agencies, as specified, but would specify that the division shall not be required to respond to any complaint regarding a violation of the smoking prohibition, unless the employer has been found guilty of a 3rd violation of the smoking prohibition within the previous year. By establishing a new prohibition the violation of which is, under specified circumstances, an infraction, this bill would create a new crime and would thereby establish a state -mandated local program. The California Constitution requires the state to reimburse local agencies and schAol districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. The people of the State of California 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 that regulation of —smoking in the workplace is a matter of statewide interest and concern. It is the intent of the Legislature in enacting this section to prohibit the smoking of tobacco products in all (100 percent of) enclosed places of employment in this state, as covered by this section, thereby eliminating the need of local governments to enact workplace smoking restrictions within their respective jurisdictions. It is further the intent of the Legislature to create a uniform statewide standard to restrict and prohibit the smoking of tobacco products in enclosed places of employment, as specified in this section, in order to reduce employee exposure to environmental tobacco smoke to a level that will prevent anything other than insignificantly harmful effects to exposed employees, and also to eliminate the confusion and hardship that can result from enactment or enforcement of disparate local workplace smoking restrictions. Notwithstanding any other provision, of this section, it is the intent of the Legislature that any area not defined as a "place of employment" pursuant to subdivision (d) or in which the smoking of tobacco products is not regulated pursuant to subdivision (e) shall be subject to local regulation of smoking of tobacco products. (b) No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment. (c) For purposes of this section, an employer who permits any nonemployee access to his or her place of employment on a regular basis has not acted knowingly or intentionally if he or she has taken the following reasonable steps to prevent smoking by a nonemployee: ..(I) _ Posted clear and prominent signs, as follows; (A) Where smoking is prohibited throughout the building or structure, 'a sign stating "No smoking" shall be posted at each entrance to the building or structure. (B) Where smoking is permitted in designated areas of the building or structure, a sign stating "Smoking is prohibited except in designated areas" shall be posted at each entrance to the building or structure. (2) Has requested, when appropriate, that a nonemployee who is smoking refrain from smoking in the enclosed workplace. For purposes of this subdivision, "reasonable steps" does not include (A) the physical ejectment of a nonemployee from the place of employment or (B) any requirement for making a request to a nonemployee to refrain from smoking, under circumstances involving a risk of physical harm to the employer or any employee. (d) For purposes oUthis section, "place of employment" does not include any of the following: i (1) Sixty-five percent of the guest room accommodations in a i hotel, motel, or similar transient lodging establishment. (2) Areas of. the lobby in a hotel, motel, or other similar transient lodging establishment designated for smoking by the establishment. Such 'an establishment may permit smoking in a designated lobby area that does not exceed 25 percent of the total floor area of .the lobby or, if the total area of the lobby is 2,000 square feet or less, that does not exceed 50 percent of the total floor area of the lobby. For purposes of this paragraph, "lobby" means the common public area of such an establishment in which registration and other similar or related transactions, or both, are conducted and in which the establishment's guests and members of the .public typically congregate. (3) Meeting and banquet rooms in a hotel, motel, other transient i lodging establishment similar to a hotel or motel, restaurant, or public convention center, except while food or beverage functions are taking place, including setup, service, and cleanup activities, or when the room is being used for. exhibit purposes. At times when smoking is not permitted in such a meeting or banquet room pursuant to this paragraph, the establishment may permit smoking in corridors and prefunction areas adjacent to and serving the meeting or banquet room if no employee is stationed in that corridor or area on other than a passing basis. (4) Retail or wholesale tobacco shops and private smokers' — lounges. For purposes of this paragraph: (A) "Private spnokers' lounge" means any enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products, including, but not limited to, cigars and pipes. (B) "Retail or wholesale tobacco shop" means any business establishment the main purpose of which is the sale of tobacco products, including, but not limited to,.cigars, pipe tobacco, and 0 0 86 130 86 150 >o Ch. 310 — 4 — smoking accessories. (5) Cabs of motortrucks, as defined in Section 410 of the Vehicle Code, or truck tractors, as defined in Section 655 of the Vehicle Code, if no nonsmoking employees are present. (6) Warehouse facilities. For purposes of this paragraph, "warehouse .facility" means a warehouse facility with more than 100,000 square feet of total floor space, and 20 or fewer full-time employees working at the facility, but does not include any area within such a facility that is utilized as office space. (7) Gaming clubs, in which smoking is permitted by subdivision (f). For purposes of this paragraph, "gaming club" means any gaming club as defined in Section 19802 of the Business and Professions Code or bingo facility as defined in Section 326.5 of. the Penal Code that restricts access to minors under 18 years of age. (8) Bars and taverns, in which smoking is permitted by . subdivision (f). For purposes of this paragraph, "bar" or "tavern' means a facility primarily devoted to the serving of alcoholic beverages for consumption by guests on the premises, in which the serving of food is incidental. "Bar or tavern" includes those facilities located within a hotel, motel, or other similar transient occupancy establishment. However, when located within a building in conjunction with another use, including a restaurant, "bar" or "tavern" includes only those areas used primarily for the sale and service of alcoholic beverages. "Bar" or "tavern" does not include the dining areas of a restaurant, regardless of whether alcoholic beverages are served therein. (9) Theatrical production sites, if smoking is an integral part of the story in the theatrical production. (10) Medical research or treatment sites, if smoking is integral to the research and treatment being conducted. (11) Private residences, except for private residences licensed as family day care. homes, during the hours of operation as family day care homes and in those areas where children are present. .(12) Patient smoking areas in long-term health care facilities, as defined in Section 1418 of the Health and Safety Code. (13) Breakrooms designated by employers for smoking, provided that all of the following conditions are met: (A) Air from the smoking room shall be exhausted directly to.the outside by an exhaust fan. Air from the smoking room shall not be. recirculated to other parts of the building. (B) The employer shall comply with any ventilation standard or other standard utilizing appropriate technology, including, but not limited to, mechanical, electronic, and biotechnical systems, adopted by the Occupational Safety and Health Standards Board or the federal Environmental Protection Agency. If both adopt inconsistent standards,.the ventilation standards of the Occupational Safety and Health Standards Board shall be no less stringent than the standards adopted by the federal Environmental Protection Agency. . _ 5 — Ch. 310 (C) The smoking room shall be located in a nonwork area where no one, as part of his or her work responsibilities, is required to enter. For purposes of this paragraph, "work responsibilities" does not include any custodial or maintenance work carried out in the breakroom when it is unoccupied. (D) There are sufficient nonsmoking breakrooms. to accommodate. nonsmokers. (14) Employers with a total of five or fewer employees, either full-time or part-time, may permit smoking where all of the following conditions are met: (A) The smoking area is not accessible to minors. (B) All employees who enter the smoking area consent to permit smoking. No one, as part of his or her work responsibilities, shall be required to work in an area where smoking is permitted. An employer who is determined by the division to have used coercion to obtain consent or who has required an employee to work in the smoking area shall be subject to the penalty provisions of Section 6427. (C) Air from the smoking area shall be exhausted directly to the outside by an exhaust fan. Air from the smoking area_ shall not be recirculated to other parts of the building. (D) The employer shall comply with any ventilation standard or other standard utilizing appropriate technology, including, but not limited to, mechanical, electronic, and biotechnical systems, adopted by .the Occupational Safety and Health Standards Board or the federal Environmental Protection Agency. If both adopt inconsistent standards, the ventilation standards of the Occupational Safety and Health Standards Board shall be no less stringent than the standards adopted by the federal Environmental Protection Agency. This paragraph shall not be construed to (i) supersede or render inapplicable any condition or limitation on smoking areas made applicable to specific types of business establishments by any other paragraph of this subdivision or (ii) apply in _lieu of any otherwise applicable paragraph of this subdivision that has become inoperative. (e) Paragraphs (13) and (14) of subdivision (d):-shall not be construed to require employers to . provide reasonable accommodation to smokers, or to provide breakrooms for smokers or nonsmokers. (f) (1) Except as otherwise provided in this subdivision, smoking may be permitted in gaming clubs, as defined in paragraph (7) . of subdivision (d), and in bars and taverns, as defined in paragraph (8) of subdivision (d), until the earlier of the following: (A) January 1, 1997. (B) The date of adoption of a regulation (i) by the Occupational Safety and Health Standards Board reducing the permissible employee exposure level to environmental tobacco smoke to a level that will prevent anything other than insignificantly harmful effects to exposed employees or (ii) by the federal Environmental • r� L 86. 180 86 200 G Ch. 310 — 6 — Protection Agency establishing a standard for reduction of permissible exposure to environmental tobacco smoke to an exposure level that will prevent anything other than insignificantly harmful effects to exposed persons. (2) If a regulation specified in subparagraph (B) of paragraph (1) . is adopted on or before January 1, 1997, smoking may thereafter be permitted in gaming clubs and in bars and taverns, subject to full compliance with, or conformity to, the standard in the regulation within two years following the date of adoption of the regulation. An employer failing to.achieve compliance with, or conformity to, such a regulation within this two-year period shall prohibit smoking in the gaming club, bar, or tavern until compliance or conformity is achieved. If the Occupational Safety and Health Standards Board and the federal Environmental Protection Agency both adopt regulations specified in subparagraph (B) of paragraph (1) that are inconsistent, the regulations of the Occupational Safety Standards Board shall be no less stringent than the regulations of the federal Environmental Protection Agency. (3) If a regulation specified in subparagraph (B) of paragraph (1) is not adopted on or before January 1, 1997, the exemptions specified in paragraphs (7) and (8) of subdivision (d) shall be inoperative on and after January 1, 1997, until such a regulation is adopted. Upon adoption of such a regulation on or after January 1, 1997, smoking may thereafter be permitted In gaming clubs and in bars and taverns, subject to full compliance with, or conformity to,.the standard in the regulation within two years following the date of adoption of the regulation. An -employer failing to achieve compliance with, or conformity to, such a regulation within this two-year period shall prohibit smoking in the gaming club, bar, or tavern until compliance or conformity is achieved. If the Occupational Safety and Health Standards Board and the federal Environmental Protection Agency both adopt regulations specified in subparagraph (B) of paragraph (1) that are inconsistent, the regulations of the Occupational Safety Standards Board shall be no less stringent than the regulations of the federal Environmental Protection Agency. (g) The smoking prohibition set forth in this section shall constitute a uniform statewide standard for regulating the smoking of tobacco products in enclosed places of employment and shall supersede and render unnecessary the local enactment or enforcement of local ordinances regulating the smoking of tobacco products in enclosed places of employment. Insofar as the smoking prohibition set -forth in this section is applicable to all (100 percent of) places of employment within this state and, therefore, provides the maximum degree of coverage,'the practical effect of this section is to eliminate the need of . local governments to enact enclosed workplace smoking restrictions within their respective jurisdictions. (h) Nothing in this section shall prohibit an employer from prohibiting smoking in an enclosed place- of employment for any 86 M i — 7 — Ch. 310 reason. (i) The enactment of local regulation of smoking of tobacco products in enclosed places of employment by local governments shall be suspended only for as long as, and to the extent that, the (100 percent) smoking prohibition provided for in this section remains in effect. In the event this section is repealed or modified by subsequent legislative or judicial action so that the (100 percent) smoking prohibition is no longer applicable to all enclosed places of employment in California, local governments shall have the fullright and authority to enforce previously enacted, and to enact and enforce new, restrictions on the smoking of tobacco products in enclosed places of employment within their jurisdictions, including a complete prohibition of smoking. Notwithstanding any other provision of this section, any area not defined as a "place of employment" or in which the smoking is not regulated pursuant to subdivision (d) or (e), shall be subject to local regulation of smoking of tobacco products. 0) Any violation of the prohibition set forth in subdivision. (b) is an infraction subject to subdivision (d) of Section 17 of the Penal Code and, notwithstanding Section 19.8 of the Penal Code, is • punishable by a fine not to exceed one hundred dollars ($100) for a first violation, two hundred dollars ($200) for a second violation within one year, and five hundred dollars ($500) for a third and for each. subsequen t violation within one year. This subdivision shall be enforced by local law enforcement agencies including, but not i limited to, local health departments, as determined by the local governing body. (k) Notwithstanding Section 6309, the division shall' not be required to respond to any complaint regarding. the smoking of tobacco products in an enclosed space at a place of employment, unless the employer has been found guilty pursuant to subdivision (j) of a third violation of subdivision. (b) within the previous year. i (1) If any provision of this act or the application thereof to any j person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision of application, and to this end the I provisions of this act are severable. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs which may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, changes the definition of a crime or infraction, changes the penalty for a crime or infraction, or eliminates a crime or infraction. Notwithstanding Section 17580 of the Government Code, unless otherwise specified in this act, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution. O 86 250 _ ..