The Sun
Sunnyvale's Newspaper

Law enforcement clarifies new smoking law

By Steve Enders

Jacob Rodriguez from Sunnyvale's neighborhood preservation office is breathing a little easier after last Friday's countywide meeting concerning the new no-smoking law.

The law took effect two years ago to prohibit smoking in all workplaces in California. This January, a delayed portion of the law finally took effect to include all of California's bars and restaurants as workplaces. The result is that smoking is now illegal in bars and restaurants.

Rodriguez and the Neighborhood Preservation Division of Public Safety are in charge of making people comply with the law in Sunnyvale.

Its proponents say the law was created to protect workers such as waitresses, as well as to create a level playing field with the other businesses already in compliance with the law.

But enforcement officers like Rodriguez weren't quite sure how they should go about enforcing the law, much less what the law even meant.

Friday's meeting, held at the Santa Clara County Health Department's Tobacco Control Program office, shed light on those dilemmas faced by law enforcement officals such as Rodriguez.

Theresa Boscher, an attorney and assistant director of Bar and Restaurant Employees Against Tobacco Hazards (BREATH), led about 50 other health and law enforcement officials from cities all over Santa Clara County through the smoky air surrounding the law, otherwise known as AB13.

Boscher told the group that the law is often misrepresented in the media, which often look for controversy and the case of the rebel bar or restaurant owner who won't comply.

"I fail to see what's controversial about a law that protects the health of workers," she said. "Statewide, we have tremendous compliance [with the law]."

She explained that California's 850,000 waitresses and waiters have the highest death rate among state workers because of health problems related to inhaling secondhand smoke.

Statistics aside, the group mainly focused on what constitutes a workplace under this law.

According to Boscher, who travels the state contacting law enforcement officers, the law is still being defined on a case-by-case basis.

Many cities, she said, are waiting for major court challenges to arise--and none have, yet--to further define the particulars of AB13.

However, precedents have already been set in some cities, allowing for clearer definitions of what can and can't be done to enforce this law.

Boscher told the group that if bar and restaurant owners see someone smoking, they are required to ask the smoker to refrain from doing so or to take it outside.

Previously, some bar managers, such as Flor O'Sullivan at Scruffy Murphy's in Sunnyvale, didn't think there was anything he could do to get someone to stop.

If they fail to stop someone, then the owner and the smoker could both be warned and/or cited.

Although the law is complaint-driven, according to the American Lung Association's Margaret Leathers, some officers have taken a proactive stance in enforcing the law.

In Sacramento recently, television news cameras followed 15 uniformed police officers as they marched into three separate bingo halls looking for smokers. They cited many people while other patrons cheered, Boscher said.

One officer from Gilroy sarcastically snickered and shook his head when it was explained that police officers would probably have to deal with late-night bar complaints.

"Yeah, let the cops take care of it," he said.

But Leathers says people shouldn't jump to the phone and call police if they think someone is violating the law.

She said people should call the Secondhand Smoke Helpline to file complaints.

"The line has an answering machine," she said, "but we're recommending that people call the next day."

The line is operated by the American Lung Association, which is working with the county to keep a database of the number of complaints establishments get.

The penalties for noncompliance can be steep.

Usually, on a first complaint filed by a citizen, the owner of the bar will be warned by a letter that someone in their bar violated AB13.

It's not until the third complaint, in most cases, that a fine will be levied. After that, fines go up and are ultimately referred to CalOSHA, which will fine owners up to $7,000 per violation.

However, if police or code enforcement officers witness a violation, they can cite the owner and whoever is smoking.

They don't even have to see you smoking, Boscher said: Evidence such as a dirty ashtray or smoke lingering in a bar can land you in trouble.

The best way to keep out of trouble, Boscher says, is to get rid of the ashtrays or the cups or whatever it is that people use to smash out their smokes.

"Bar owners say that then people will drop their butts on the floor, which will damage the floor," she said. "That excuse isn't valid, though, because if someone's messing up their bar in any other way, they'd get kicked out."

Bar owners or patrons with questions about AB13 can call the county's Tobacco Control Board at 299-2566. To file a complaint or for additional questions, call the Secondhand Smoke Helpline at 999-0500.

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This article appeared in the Sunnyvale Sun, January 28, 1998.
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