How to Protect Your Community from Secondhand Smoke: An Introduction to a Comprehensive Secondhand Smoke Model Ordinance1
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Technical Assistance Legal Center
How to Protect Your Community from Secondhand Smoke:
An Introduction to a Comprehensive Secondhand Smoke
Model Ordinance1
October 2003
Despite enjoying the benefits of some of the strongest smoke-free laws in the country,
Californians still face health risks when exposed to secondhand smoke. The purpose of this
memo is to serve as a guide to local communities interested in passing secondhand smoke laws
that better protect residents from tobacco smoke than current state law. The memo first briefly
describes the legal authority for local jurisdictions to pass such laws regulating smoking (referred
to generally as “secondhand smoke laws”) and then discusses the policy considerations involved
in designing a local ordinance that provides additional protection from secondhand smoke.
The Technical Assistance Legal Center (TALC) has developed a Comprehensive Secondhand
Smoke Model Ordinance that strengthens existing local and state laws in outdoor areas, places of
employment, public places and residences. The ordinance is designed to be adapted to the needs
of individual communities, and is available upon request from TALC at (510) 444-8252 or
talc@phi.org and can be accessed via TALC’s website at http://talc.phi.org under “Publications”
in the “Secondhand Smoke” section.
I. Legal Authority
Because there is no legally protected “right” to smoke, local communities have great flexibility
in adopting laws to protect the health of their residents by limiting the places where people can
smoke.2 Local jurisdictions have the authority both to expand upon the protections provided by
state law, and to restrict smoking in many areas that are not covered by state or federal law.
California state law already provides some protections from secondhand smoke. Existing state
law prohibits smoking in most enclosed places of employment, in and around playgrounds and
tot lots, on the campus of any school receiving Proposition 99 funds, and within twenty feet of
state buildings.3 However, state law is far from comprehensive. Places like outdoor worksites,
1
This publication is provided for general information only and is not offered or intended as legal advice. Readers
should seek the advice of an attorney when confronted with legal issues and attorneys should perform an
independent evaluation of the issues raised in these materials. This material was made possible by funds received
from the California Department of Health Services, under contract #99-85069.
2
For more information about the claim that people have a right to smoke, see TALC’s memo, “There is No
Fundamental ‘Right to Smoke’” available at http://talc.phi.org.
3
Cal. Labor Code § 6404.5; Cal. Health & Safety Code § 104495; Cal. Health & Safety Code § 104420; Cal. Gov’t
Code § 7596 (effective January 1, 2004).
180 Grand Ave., Suite 750, Oakland, CA 94612 * (510) 444-8252 * (510) 444-8253 (Fax) * talc@phi.org * http://talc.phi.org2
some businesses, pedestrian plazas and multi-unit residences are not covered. Local governments
can fill these gaps by exercising their “police power” to protect the public health.
The California State Constitution grants cities and counties the “police power” to enact
ordinances and regulations that protect the health, safety, welfare and morals of their citizens.4 A
local ordinance is legitimate so long as the police power exercised has a rational relationship to a
legitimate state purpose.5 California courts have found that “regulating the smoking of tobacco to
protect the health of local residents is a valid exercise of local police power.”6 Facts and findings
in the ordinance help demonstrate the rationality and legitimacy of the government’s actions and
can be especially beneficial if the ordinance is challenged. TALC has included extensive findings
in its Model Ordinance.
Tobacco control advocates seeking to pass local secondhand smoke laws have faced claims that
the local law conflicts with existing state or federal law, and is thus invalid, under the doctrine of
preemption.7 California’s statewide smoking laws generally do not preempt stricter local laws.
For example, the state smoke-free workplace and tot lot laws expressly permit local jurisdictions
to pass more restrictive ordinances.8 In addition, a California court has held that local
governments also can prohibit smoking in places that are specifically exempted under the Labor
Code, such as in health care facilities and tobacco retail shops.9 Some communities already have
adopted more protective laws.10
When no existing state or federal law restricts smoking (for example, in most outdoor public
places and in residences), preemption is not an issue and local jurisdictions are free to enact
restrictions that are rationally related to their interest in protecting the public’s health. In fact,
many cities and counties already have laws regulating smoking in outdoor places. Existing local
laws range widely in their scope; cities like Davis have prohibited smoking in many outdoor
places, while some communities have banned smoking in the town park.
II. What Local Protections Currently Exist?
The first step in strengthening secondhand smoke laws is to assess the adequacy of current local
laws. To get a copy of your local secondhand smoke laws, call your city or county clerk’s office;
you may give them the specific code section if you know it, or simply ask for the law on
smoking prohibitions. Many municipal codes are available on the internet (often via a link on the
city or county web page).
4
See Cal. Const. art. XI, § 7.
5
See, e.g., Sherwin-Williams Co. v. City and County of San Francisco, 857 F.Supp.1355 (N.Cal., 1994) (local
ordinance requiring salesperson assistance to access cans of spray paint in retail stores bore a rational relationship to
city objective of reducing graffiti by making implements used to make graffiti harder to steal).
6
City of San Jose v. Department of Health Services, 66 Cal.App.4th 35, 43 (1998).
7
See Sherwin-Williams Co. v City of Los Angeles, 4 Cal.4th 893, 897 (1993) (If otherwise valid local legislation
conflicts with state law, it is preempted by such law and is void. A conflict exists if the local legislation duplicates,
contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.)(internal
citations omitted.).
8
Cal. Labor Code § 6404.5(i); Cal. Health & Safety Code § 104495(h).
9
City of San Jose v. Department of Health Services, 66 Cal.App.4th, 35 (1998).
10
San Mateo County now prohibits smoking in “owner operated” businesses. San Mateo Code §4.96.040(f).
Introduction to a Comprehensive Secondhand Smoke Ordinance
Technical Assistance Legal Center – October 20033
Even if you believe there is no local law covering some of the places where people are exposed
to secondhand smoke, you should check the code to identify what your city or county already
restricts, because there may be a law on the books that is not being enforced. Many local
smoking laws were passed prior to the state smoke-free workplace law, and have been revised
and amended many times. If the existing law does prohibit smoking, but that law is not being
enforced, you should consider the best way to increase enforcement. A discussion with the
agency responsible for enforcement (often, but not always, identified in the code) may be
necessary. In addition, TALC has developed a number of materials on improving enforcement,
available at http://talc.phi.org. The Comprehensive Secondhand Smoke Model Ordinance
contains some of these enforcement tools.
Once you have a good idea of the scope of existing laws, the next step is to identify your
community’s need for additional smoke-free areas. You may want to make a list of places
protected by current law and compare it to a list of places that should be smoke-free. You may
want to consider the political feasibility of achieving the community’s goals.
Review the “definitions” section of the existing law carefully because definitions play a key role
in the application of a law of this type. For example, if a definition of “recreation area” exists,
then it likely will be referred to later in the substantive sections of the ordinance. In general, the
broader the definition, the greater the protection. For example, “recreation area” could be defined
as “those areas in public parks used for sporting events, such as basketball and tennis courts” or
as “any area, public or private, where one or more persons engage in a recreational, physical or
sporting activity.” The latter definition is broader and therefore more protective of public health.
The Model Ordinance uses broad definitions to include as many actual locations as possible.
The next section describes some of the questions and options to consider when developing new
protections from secondhand smoke.
III. Possible Additional Local Control of Secondhand Smoke
Communities that are ready to pass a strong comprehensive ordinance protecting individuals in
the places they live, work and gather are encouraged to use TALC’s Comprehensive Secondhand
Smoke Model Ordinance. The Model Ordinance prohibits smoking in many public places,
outdoor sites, and workplaces not covered by the state smoke-free workplace law but where
people may be involuntarily exposed to secondhand smoke. Communities not ready for such a
broad initiative should still consider the public health benefits that a modified version of the
ordinance would provide. This part of the memo identifies four approaches to improving
secondhand smoke laws.
1. Prohibit Smoking in Outdoor Places
Smoking is generally permitted in most outdoor places. State law prohibits smoking only at
playgrounds and the entrances to public buildings. But research indicates that secondhand smoke
poses health hazards even in outdoor settings.11 Communities from Santa Barbara to Modesto
have passed laws limiting smoke in outdoor areas where people congregate for recreation,
services or work. A local ordinance could:
11
See James Repace, “Banning outdoor smoking is scientifically justifiable” Tobacco Control 2000; 9:98.
Introduction to a Comprehensive Secondhand Smoke Ordinance
Technical Assistance Legal Center – October 20034
• Prohibit smoking in all public parks, community gardens, sporting facilities, arenas,
and boardwalks;
• Create a smoke-free zone around doorways and the openings of buildings so that
smoke does not drift into places where smoking is prohibited;
• Prohibit smoking in outdoor dining areas.
Any ordinance prohibiting smoking outdoors should reflect the political realities of the
community to which it will apply. For example, an ordinance prohibiting smoking in outdoor
dining areas may face stiff opposition from bar owners unless there is an exception for bar
patios. Similarly, creating a smoke-free zone around doorways in a busy commercial corridor
may have to be designed so that smoking on the sidewalk is not entirely prohibited. To best
protect public health, exceptions to smoking prohibitions should be as narrow as possible.
2. Expand Workplace Protections
The California smoke-free workplace law covers many, but not all, workplaces.12 However,
cities and counties are not preempted from passing more restrictive laws that prohibit smoking in
areas not covered by state law. In fact, many communities have passed local ordinances
protecting these worksites. For example, Alameda County and the city of Davis prohibit smoking
in many places of employment not covered by the state smoke-free workplace law. A local
ordinance could:
• Prohibit smoking in owner-operated businesses that are not places of employment
under the state smoke-free workplace law, such as bars run solely by the owner;
• Protect employees who work outside by prohibiting smoking in unenclosed places of
employment, such as construction sites;
• Prohibit smoking in many of the fourteen areas that the state law specifically exempts
from prohibition, such as the 65% of hotel and motel rooms where smoking is
currently allowed.
In addition to the Model Ordinance, TALC has prepared a series of legal analyses covering
specific exceptions to the state smoke-free workplace law, explaining the problem caused by the
exception and proposing local solutions. Check the TALC website at http://talc.phi.org for the
most current fact sheets.
3. Provide Protections to People Living in Multi-unit Residences
Complaints about exposure to secondhand smoke in apartments have been increasing, but, so far,
there are few laws restricting smoking in residential settings (note that the common areas of
some multi-unit residences may be places of employment and thus protected under the state
smoke-free workplace law). A number of jurisdictions have begun examining ways to protect
apartment renters and condominium owners from tobacco smoke drifting into their residences.
Keep in mind that this is a new area for smoking regulations so there are not many examples of
existing policies, and consider the following strategies:
12
Cal Health & Safety Code § 6404.5.
Introduction to a Comprehensive Secondhand Smoke Ordinance
Technical Assistance Legal Center – October 20035
• List drifting tobacco smoke as a nuisance, under existing local laws on nuisances. In
California, a nuisance is anything that injures health or obstructs the free use of
property by interfering with the enjoyment of life or property.13 A nuisance lets
affected parties seek monetary damages or a court order to stop the nuisance activity.
• Clarify in a local ordinance that a landlord or property owner has the legal ability to
prohibit smoking on the property. Although it already is legal for a landlord to
prohibit smoking, acknowledging this fact in a local ordinance may relieve any
lingering doubt on the part of the landlord.
• Require landlords to notify prospective tenants whether smoking is permitted in the
building. Prospective tenants with such information can make a more informed
decision about the health consequences of moving in.
Many communities have begun their work in this area by encouraging landlords to prohibit
smoking on their property which they are legally permitted to do. Smoke-free Air For Everyone
(S.A.F.E.) and BREATH, the California Smoke-free Bars, Workplaces and Communities
Program have worked with dozens of landlords and can assist in this effort. Contact S.A.F.E. at
(818) 363-4220 or smokefreeapartments@pacificnet.net and BREATH at (800) 622-2829 or
breath@jps.net.
4. Improve Enforcement
In many California communities, enforcement of tobacco control laws is insufficient because
enforcement agencies lack funds or staffing, or because tobacco control laws are not considered
a priority by the community. With insufficient enforcement, many tobacco control laws fail to
protect the public’s health.
To address the lack of enforcement, ordinances should be drafted carefully to promote
compliance. For example, identifying the government entity responsible for enforcement in the
ordinance removes ambiguity about where the duty lies. In addition, prohibiting the disposal of
tobacco product waste (like cigarette butts) by prohibiting tobacco waste receptacles (like
ashtrays) within smoke-free areas encourages smokers to smoke only in areas with appropriate
waste receptacles. Requirements for clear, conspicuously posted signs ensure that smokers and
nonsmokers alike know where the law applies.
Another approach is to add a clause to a local tobacco control ordinance that would explicitly
allow a private citizen to enforce the ordinance by bringing a civil action against a violator in
small claims court. Because attorneys are not permitted in small claims actions, the cost of such
an option is low, and the process is fairly easy to follow. See TALC’s memo on small claims
court and “Private Enforcement Language” for more information.
5. Additional Resources
For help in drafting language for a local ordinance, please contact TALC at (510) 444-8252 or at
talc@phi.org. In addition to TALC’s Comprehensive Secondhand Smoke Model Ordinance
prohibiting smoking in most public places, TALC has developed a series of legal analyses on
13
Cal. Civil Code § 3479.
Introduction to a Comprehensive Secondhand Smoke Ordinance
Technical Assistance Legal Center – October 20036
specific areas where local ordinances can protect people from secondhand smoke. These legal
analyses, which are available on TALC’s website, include:
• How to Prohibit Smoking in “Enclosed” Places;
• How to Prohibit Smoking in “Retail Tobacco Shops” and “Private Smokers’
Lounges”;
• How to Prohibit Smoking in Owner-Operated Businesses; and
• How to Prohibit Smoking in Places Operated by Volunteers.
TALC is available to assist communities in developing new secondhand smoke protections by
revising existing laws or developing new ordinances.
Introduction to a Comprehensive Secondhand Smoke Ordinance
Technical Assistance Legal Center – October 2003You can also read
