EXECUTIVE SUMMARY
OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of The Showboat Lounge – Decision After Reconsideration

The Division cited tavern owners for a willful/serious violation of Labor Code section 6404.5 which prohibits people from smoking and employers from permitting people to smoke in enclosed workplaces. At the inspection the Division determined that Employer was permitting smoking in the enclosed work area. Employer challenged the Division's authority to enforce the statewide enclosed workplace smoking ban against Employer by issuing a citation for violation of Labor Code section 6404.5(b). The Board held that the Legislature did not authorize the Division to enforce Labor Code section 6404.5 by issuance of a citation against Employer. Although Labor Code section 6317 authorizes the Division to issue a citation for violation of "any standard, rule, order or regulation established pursuant to this part" [Part 1 of Division 5 of the Labor Code]," the smoking ban statute was not established pursuant to Part 1 of the Labor Code within the meaning of Labor Code section 6317. The statewide "standard" enacted by the Legislature was designed to preempt local standards by establishing a uniform smoking prohibition with exclusive enforcement jurisdiction granted to local law enforcement. The legislative history of section 6404.5 supports an intended diminished enforcement role for the Division in response to complaints of violations of the smoking ban and makes no express delegation of enforcement power to the Division. The Division can refer the violation to local law enforcement authorities (Section 6404.5(j)); or, since the Standards Board has not elected to exercise its authority to promulgate a safety and health standard or order regulating employee exposure to tobacco that supplements the statutory prohibition (an action which the Legislature recognized could be done), the Division could exercise its statutorily authorized power to write a "special order" with respect to a place of employment believed to be unhealthful which cannot be made safe under existing standards or orders of the Standards Board. However, the Division's direct issuance of a citation for a violation of section 6404.5(b) exceeded its enforcement authority. Employer's appeal was granted and the civil penalty set aside.

THE SHOWBOAT LOUNGE, 01-125 (MS Word)
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May 29, 2003