Amended in Senate April 13, 2015

Amended in Senate March 10, 2015

Senate Bill No. 140

Introduced by Senator Leno

(Principal coauthor: Senator Pan)

(Principal coauthor: Assembly Member Ting)

(Coauthors: Senators Hernandez, McGuire, and Stone)

(Coauthor: Assembly Member Chiu)

January 26, 2015

An act to amend Sections 22950.5, 22958, 22962, and 22971 of the Business and Professions Code, to amend Section 1947.5 of the Civil Code, to amend Section 48901 of the Education Code, to amend Section 7597 of the Government Code, to amend Sections 1234, 1286, 1530.7, 1596.795, 104495, begin delete 113978, end delete 114332.3, 114371, 118910, 118925, begin delete 118930, 118935, end delete and 118948 of, and to repeal Section 119405 of, the Health and Safety Code, to amend Section 6404.5 of the Labor Code, to amend Section 308 of the Penal Code, to amend Sections 561 and 99580 of the Public Utilities Code, and to amend Section 12523 of the Vehicle Code, relating to electronic cigarettes.

LEGISLATIVE COUNSEL’S DIGEST

SB 140, as amended, Leno. Electronic cigarettes.

Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, prohibits a person from selling or otherwise furnishing tobacco products to minors. Existing law permits enforcing agencies to assess various civil penalties for violations of the STAKE Act. Existing law makes it a crime to furnish tobacco products to minors. Existing law also prohibits a person from selling or otherwise furnishing an electronic cigarette to minors, and makes a violation punishable as an infraction.

This begin insert bill would define the term “smoking” for purposes of the STAKE Act. end insert begin insert The end insert bill would begin insert also end insert change the STAKE Act’s definition of tobacco products to include electronic devices, such as electronic cigarettes, that deliver nicotine or other begin delete substances, end delete begin insert vaporized liquids, end insert and make furnishing such a tobacco product to a minor a misdemeanor.

Existing law, the Cigarette and Tobacco Products Licensing Act of 2003, requires the State Board of Equalization to administer a statewide program to license manufacturers, importers, distributors, wholesalers, and retailers of cigarettes and tobacco products. Under existing law, a violation of this act is a misdemeanor.

This bill would change begin delete the end delete begin insert that end insert act’s definition of tobacco products to reflect the STAKE Act’s new definition of tobacco products.

Existing law prohibits the smoking of cigarettes and other tobacco products in a variety of specified areas. Under existing law, a violation of some of these prohibitions is punishable as an infraction.

This bill would change the location restrictions for smoking cigarettes and other tobacco products to reflect the STAKE Act’s begin delete new definition end delete begin insert definitions of smoking and end insert begin delete of end delete tobacco products. The bill would make the use of electronic cigarettes in some of these restricted locations a violation punishable as an infraction.

Existing law prohibits the smoking of medical marijuana in any place where smoking is prohibited by law.

This bill would declare that its provisions do not affect any law or regulation regarding medical marijuana.

By expanding the scope of a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 22950.5 of the Business and Professions
Code is amended to read:

22950.5.  

For purposes of this division, the following terms
have the following meanings:

(a) “Department” means the State Department of Public Health.

(b) “Enforcing agency” means the State Department of Public
Health, another state agency, including, but not limited to, the
office of the Attorney General, or a local law enforcement agency,
including, but not limited to, a city attorney, district attorney, or
county counsel.

begin insert

(c) “Smoking” means inhaling, exhaling, burning, or carrying
any lighted or heated cigar, cigarette, or pipe, or any other lighted
or heated tobacco or plant product intended for inhalation, whether
natural or synthetic, in any manner or in any form. “Smoking”
includes the use of an electronic smoking device that creates an
aerosol or vapor, in any manner or in any form, or the use of any
oral smoking device for the purpose of circumventing the
prohibition of smoking.

end insert begin delete

(c)

end delete

begin insert (d) end insert  (1) “Tobacco product” means any of the following:

(A) A product containing, made, or derived from tobacco or
nicotine that is intended for human consumption, whether smoked,
heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or
ingested by any other means, including, but not limited to,
cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or
snuff.

(B) An electronic device that delivers nicotine or other
begin delete substances end delete begin insert vaporized liquids end insert to the person inhaling from the device,
including, but not limited to, an electronic cigarette, cigar, pipe,
or hookah.

(C) Any component, part, or accessory of a tobacco product,
whether or not sold separately.

(2) “Tobacco product” does not include a product that has been
approved by the United States Food and Drug Administration for
sale as a tobacco cessation product or for other therapeutic purposes
where the product is marketed and sold solely for such an approved
purpose.

SEC. 2.  

Section 22958 of the Business and Professions Code
is amended to read:

22958.  

(a) An enforcing agency may assess civil penalties
against any person, firm, or corporation that sells, gives, or in any
way furnishes to another person who is under 18 years of age, any
tobacco, cigarette, cigarette papers, any other instrument or
paraphernalia that is designed for the smoking or ingestion of
tobacco, tobacco products, or any controlled substance, according
to the following schedule: (1) a civil penalty of four hundred dollars
($400) to six hundred dollars ($600) for the first violation, (2) a
civil penalty of nine hundred dollars ($900) to one thousand dollars
($1,000) for the second violation within a five-year period, (3) a
civil penalty of one thousand two hundred dollars ($1,200) to one
thousand eight hundred dollars ($1,800) for a third violation within
a five-year period, (4) a civil penalty of three thousand dollars
($3,000) to four thousand dollars ($4,000) for a fourth violation
within a five-year period, or (5) a civil penalty of five thousand
dollars ($5,000) to six thousand dollars ($6,000) for a fifth violation
within a five-year period.

(b) (1) In addition to the civil penalties described in subdivision
(a), upon the assessment of a civil penalty for the third, fourth, or
fifth violation, the department, within 60 days of the date of service
of the final administrative adjudication on the parties or payment
of the civil penalty for an uncontested violation, shall notify the
State Board of Equalization of the violation. The State Board of
Equalization shall then assess a civil penalty of two hundred fifty
dollars ($250) and suspend or revoke a license issued pursuant to
Chapter 2 (commencing with Section 22972) of Division 8.6 in
accordance with the following schedule:

(A) A 45-day suspension of the license for a third violation at
the same location within a five-year period.

(B) A 90-day suspension of the license for a fourth violation at
the same location within a five-year period.

(C) Revocation of the license for a fifth violation at the same
location within a five-year period.

(2) The provisions of Chapter 4 (commencing with Section
55121) of Part 30 of Division 2 of the Revenue and Taxation Code
apply with respect to the collection of the penalty imposed by the
State Board of Equalization pursuant to paragraph (1).

(c) (1) For each suspension or revocation pursuant to
subdivision (b), the civil penalty of two hundred fifty dollars ($250)
assessed pursuant to that subdivision, notwithstanding Section
22953, shall be deposited into the Cigarette and Tobacco Products
Compliance Fund established pursuant to Section 22990. Moneys
from that civil penalty deposited into this fund shall be made
available to the State Board of Equalization, upon appropriation
by the Legislature, for the purposes of meeting its duties under
subdivision (b).

(2) The department shall, upon request, provide to the State
Board of Equalization information concerning any person, firm,
or corporation that has been assessed a civil penalty for violation
of the STAKE Act pursuant to this section when the department
has notified the State Board of Equalization of the violation.

(d) The enforcing agency shall assess penalties pursuant to the
schedule set forth in subdivision (a) against a person, firm, or
corporation that sells, offers for sale, or distributes tobacco products
from a cigarette or tobacco products vending machine, or a person,
firm, or corporation that leases, furnishes, or services these
machines in violation of Section 22960.

(e) An enforcing agency may assess civil penalties against a
person, firm, or corporation that sells or deals in tobacco or any
preparation thereof, and fails to post conspicuously and keep posted
in the place of business at each point of purchase the notice
required pursuant to subdivision (b) of Section 22952. The civil
penalty shall be in the amount of two hundred dollars ($200) for
the first offense and five hundred dollars ($500) for each additional
violation.

(f) An enforcing agency shall assess penalties in accordance
with the schedule set forth in subdivision (a) against a person, firm,
or corporation that advertises or causes to be advertised a tobacco
product on an outdoor billboard in violation of Section 22961.

(g) If a civil penalty has been assessed pursuant to this section
against a person, firm, or corporation for a single, specific violation
of this division, the person, firm, or corporation shall not be
prosecuted under Section 308 of the Penal Code for a violation
based on the same facts or specific incident for which the civil
penalty was assessed. If a person, firm, or corporation has been
prosecuted for a single, specific violation of Section 308 of the
Penal Code, the person, firm, or corporation shall not be assessed
a civil penalty under this section based on the same facts or specific
incident upon which the prosecution under Section 308 of the Penal
Code was based.

(h) (1) In the case of a corporation or business with more than
one retail location, to determine the number of accumulated
violations for purposes of the penalty schedule set forth in
subdivision (a), violations of this division by one retail location
shall not be accumulated against other retail locations of that same
corporation or business.

(2) In the case of a retail location that operates pursuant to a
franchise as defined in Section 20001, violations of this division
accumulated and assessed against a prior owner of a single
franchise location shall not be accumulated against a new owner
of the same single franchise location for purposes of the penalty
schedule set forth in subdivision (a).

(i) Proceedings under this section shall be conducted pursuant
to Section 131071 of the Health and Safety Code, except in cases
where a civil penalty is assessed by an enforcing agency other than
the department, in which case proceedings shall be conducted
pursuant to the procedures of that agency that are consistent with
Section 131071 of the Health and Safety Code.

SEC. 3.  

Section 22962 of the Business and Professions Code
is amended to read:

22962.  

(a) For purposes of this section, the following terms
have the following meanings:

(1) “Self-service display” means the open display of tobacco
products or tobacco paraphernalia in a manner that is accessible
to the general public without the assistance of the retailer or
employee of the retailer.

(2) “Tobacco paraphernalia” means cigarette papers or wrappers,
blunt wraps as defined in Section 308 of the Penal Code, pipes,
holders of smoking materials of all types, cigarette rolling
machines, or other instruments or things designed for the smoking
or ingestion of tobacco products.

(3) “Tobacco product” means a product or device as defined in
subdivision begin delete (c) end delete begin insert (d) end insert of Section 22950.5 of the Business and
Professions Code.

(4) “Tobacco store” means a retail business that meets all of the
following requirements:

(A) Primarily sells tobacco products.

(B) Generates more than 60 percent of its gross revenues
annually from the sale of tobacco products and tobacco
paraphernalia.

(C) Does not permit any person under 18 years of age to be
present or enter the premises at any time, unless accompanied by
the person’s parent or legal guardian, as defined in Section 6903
of the Family Code.

(D) Does not sell alcoholic beverages or food for consumption
on the premises.

(b) (1) (A) Except as permitted in subdivision (b) of Section
22960, it is unlawful for a person engaged in the retail sale of
tobacco products to sell, offer for sale, or display for sale any
tobacco product or tobacco paraphernalia by self-service display.
A person who violates this section is subject to those civil penalties
specified in the schedule in subdivision (a) of Section 22958.

(B) A person who violates this section is subject to those civil
penalties specified in the schedule in subdivision (a) of Section
22958.

(2) It is unlawful for a person engaged in the retail sale of blunt
wraps to place or maintain, or to cause to be placed or maintained,
any blunt wraps advertising display within two feet of candy,
snack, or nonalcoholic beverage displayed inside any store or
business.

(3) It is unlawful for any person or business to place or maintain,
or cause to be placed or maintained, any blunt wrap advertising
display that is less than four feet above the floor.

(c) Subdivision (b) shall not apply to the display in a tobacco
store of cigars, pipe tobacco, snuff, chewing tobacco, or dipping
tobacco, provided that in the case of cigars they are generally not
sold or offered for sale in a sealed package of the manufacturer or
importer containing less than six cigars. In any enforcement action
brought pursuant to this division, the retail business that displays
any of the items described in this subdivision in a self-service
display shall have the burden of proving that it qualifies for the
exemption established in this subdivision.

(d) The Attorney General, a city attorney, a county counsel, or
a district attorney may bring a civil action to enforce this section.

(e) This section does not preempt or otherwise prohibit the
adoption of a local standard that imposes greater restrictions on
the access to tobacco products than the restrictions imposed by
this section. To the extent that there is an inconsistency between
this section and a local standard that imposes greater restrictions
on the access to tobacco products, the greater restriction on the
access to tobacco products in the local standard shall prevail.

SEC. 4.  

Section 22971 of the Business and Professions Code
is amended to read:

22971.  

For purposes of this division, the following terms shall
have the following meanings:

(a) “Board” means the State Board of Equalization.

(b) “Brand family” has the same meaning as that term is defined
in paragraph (2) of subdivision (a) of Section 30165.1 of the
Revenue and Taxation Code.

(c) “Cigarette” means a cigarette as defined in Section 30003
of the Revenue and Taxation Code.

(d) (1) “Control” or “controlling” means possession, direct or
indirect, of the power:

(A) To vote 25 percent or more of any class of the voting
securities issued by a person.

(B) To direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities, by contract, other than a commercial contract for goods
or nonmanagement services, or as otherwise provided; however,
no individual shall be deemed to control a person solely on account
of being a director, officer, or employee of that person.

(2) For purposes of subparagraph (B) of paragraph (1), a person
who, directly or indirectly, owns, controls, holds, with the power
to vote, or holds proxies representing 10 percent or more of the
then outstanding voting securities issued by another person, is
presumed to control that other person.

(3) For purposes of this division, the board may determine
whether a person in fact controls another person.

(e) “Display for sale” means the placement of cigarettes or
tobacco products in a vending machine or in retail stock for the
purpose of selling or gifting the cigarettes or tobacco products.
For purposes of this definition, the clear and easily visible display
of cigarettes or tobacco products shall create a rebuttable
presumption that either were displayed for sale.

(f) “Distributor” means a distributor as defined in Section 30011
of the Revenue and Taxation Code.

(g) “Gifting” means any transfer of title or possession without
consideration, exchange, or barter, in any manner or by any means,
of cigarettes or tobacco products that have been purchased for
resale under a license issued pursuant to this division if the transfer
occurs while the license is suspended or after the effective date of
its revocation.

(h) “Importer” means an importer as defined in Section 30019
of the Revenue and Taxation Code.

(i) “Law enforcement agency” means a sheriff, a police
department, or a city, county, or city and county agency or
department designated by the governing body of that agency to
enforce this chapter or to enforce local smoking and tobacco
ordinances and regulations.

(j) “License” means a license issued by the board pursuant to
this division.

(k) “Licensee” means any person holding a license issued by
the board pursuant to this division.

(l) “Manufacturer” means a manufacturer of cigarettes or
tobacco products sold in this state.

(m) “Notice” or “notification” means, unless as otherwise
provided, the written notice or notification provided to a licensee
by the board by either actual delivery to the licensee or by
first-class mail addressed to the licensee at the address on the
license.

(n) “Package of cigarettes” means a package as defined in
Section 30015 of the Revenue and Taxation Code.

(o) “Person” means a person as defined in Section 30010 of the
Revenue and Taxation Code.

(p) “Retailer” means a person who engages in this state in the
sale of cigarettes or tobacco products directly to the public from
a retail location. Retailer includes a person who operates vending
machines from which cigarettes or tobacco products are sold in
this state.

(q) “Retail location” means both of the following:

(1) Any building from which cigarettes or tobacco products are
sold at retail.

(2) A vending machine.

(r) “Sale” or “sold” means a sale as defined in Section 30006
of the Revenue and Taxation Code.

(s) “Tobacco products” means a product or device as defined
in subdivision begin delete (c) end delete begin insert (d) end insert of Section 22950.5.

(t) “Unstamped package of cigarettes” means a package of
cigarettes that does not bear a tax stamp as required under Part 13
(commencing with Section 30001) of Division 2 of the Revenue
and Taxation Code, including a package of cigarettes that bears a
tax stamp of another state or taxing jurisdiction, a package of
cigarettes that bears a counterfeit tax stamp, or a stamped or
unstamped package of cigarettes that is marked “Not for sale in
the United States.”

(u) “Wholesaler” means a wholesaler as defined in Section
30016 of the Revenue and Taxation Code.

SEC. 5.  

Section 1947.5 of the Civil Code is amended to read:

1947.5.  

(a) A landlord of a residential dwelling unit, as defined
in Section 1940, or his or her agent, may prohibit the smoking of
a cigarette, as defined in Section 104556 of the Health and Safety
Code, or other tobacco product on the property or in any building
or portion of the building, including any dwelling unit, other
interior or exterior area, or the premises on which it is located, in
accordance with this article.

(b) (1) Every lease or rental agreement entered into on or after
January 1, 2012, for a residential dwelling unit on property on any
portion of which the landlord has prohibited the smoking of
cigarettes or other tobacco products pursuant to this article shall
include a provision that specifies the areas on the property where
smoking is prohibited, if the lessee has not previously occupied
the dwelling unit.

(2) For a lease or rental agreement entered into before January
1, 2012, a prohibition against the smoking of cigarettes or other
tobacco products in any portion of the property in which smoking
was previously permitted shall constitute a change of the terms of
tenancy, requiring adequate notice in writing, to be provided in
the manner prescribed in Section 827.

(c) A landlord who exercises the authority provided in
subdivision (a) to prohibit smoking shall be subject to federal,
state, and local requirements governing changes to the terms of a
lease or rental agreement for tenants with leases or rental
agreements that are in existence at the time that the policy limiting
or prohibiting smoking is adopted.

(d) This section shall not be construed to preempt any local
ordinance in effect on or before January 1, 2012, or any provision
of a local ordinance in effect on or after January 1, 2012, that
restricts the smoking of cigarettes or other tobacco products.

(e) A limitation or prohibition of the use of any tobacco product
shall not affect any other term or condition of the tenancy, nor
shall this section be construed to require statutory authority to
establish or enforce any other lawful term or condition of the
tenancy.

begin insert

(f) For purposes of this section, “smoking” has the meaning of
the definition in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin delete

(f)

end delete

begin insert (g) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

SEC. 6.  

Section 48901 of the Education Code is amended to
read:

48901.  

(a)  No school shall permit the smoking or use of a
tobacco product by pupils of the school while the pupils are on
campus, or while attending school-sponsored activities or while
under the supervision and control of school district employees.

(b) The governing board of any school district maintaining a
high school shall take all steps it deems practical to discourage
high school students from smoking.

begin insert

(c) For purposes of this section, “smoking” has the meaning of
the definition in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin delete

(c)

end delete

begin insert (d) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

SEC. 7.  

Section 7597 of the Government Code is amended to
read:

7597.  

(a) No public employee or member of the public shall
smoke a tobacco product inside a public building, or in an outdoor
area within 20 feet of a main exit, entrance, or operable window
of a public building, or in a passenger vehicle, as defined by
Section 465 of the Vehicle Code, owned by the state.

(b) This section shall not preempt the authority of any county,
city, city and county, California Community College campus,
campus of the California State University, or campus of the
University of California to adopt and enforce additional smoking
and tobacco control ordinances, regulations, or policies that are
more restrictive than the applicable standards required by this
chapter.

begin insert

(c) For purposes of this section, “smoke” and “smoking” have
the meaning of the definition in subdivision (c) of Section 22950.5
of the Business and Professions Code.

end insert begin delete

(c)

end delete

begin insert (d) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

SEC. 8.  

Section 1234 of the Health and Safety Code is amended
to read:

1234.  

(a)  Smoking a tobacco product shall not be permitted
in patient areas of a clinic except those rooms designated for
occupancy exclusively by smokers.

(b)  Clearly legible signs shall either:

(1)  State that smoking is unlawful and be conspicuously posted
by, or on behalf of, the owner or manager of such clinic, in all
areas of a clinic where smoking is unlawful.

(2)  Identify “smoking permitted” areas, and be posted by, or
on behalf of, the owner or manager of such clinic, only in areas of
a clinic where smoking is lawfully permitted.

If “smoking permitted” signs are posted, there shall also be
conspicuously posted, near all major entrances, clearly legible
signs stating that smoking is unlawful except in areas designated
“smoking permitted.”

(c)  This section shall not apply to skilled nursing facilities,
intermediate care facilities, and intermediate care facilities for the
developmentally disabled.

begin insert

(d) For purposes of this section, “smoking” has the meaning
of the definition in subdivision (c) of Section 22950.5 of the
Business and Professions Code.

end insert begin delete

(d)

end delete

begin insert (e) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

SEC. 9.  

Section 1286 of the Health and Safety Code is amended
to read:

1286.  

(a)  Smoking a tobacco product shall be prohibited in
patient care areas, waiting rooms, and visiting rooms of a health
facility, except those areas specifically designated as smoking
areas, and in patient rooms as specified in subdivision (b).

(b)  Smoking a tobacco product shall not be permitted in a
patient room unless all persons assigned to the room have requested
a room where smoking is permitted. In the event that the health
facility occupancy has reached capacity, the health facility shall
have reasonable time to reassign patients to appropriate rooms.

(c)  Clearly legible signs shall either:

(1)  State that smoking is unlawful and be conspicuously posted
by, or on behalf of, the owner or manager of the health facility, in
all areas of a health facility where smoking is unlawful, or

(2)  Identify “smoking permitted” areas, and be posted by, or
on behalf of, the owner or manager of the health facility, only in
areas of the health facility where smoking is lawfully permitted.

If “smoking permitted” signs are posted, there shall also be
conspicuously posted, near all major entrances, clearly legible
signs stating that smoking is unlawful except in areas designated
“smoking permitted.”

(d)  No signs pertaining to smoking are required to be posted
in patient rooms.

(e)  This section shall not apply to skilled nursing facilities,
intermediate care facilities, and intermediate care facilities for the
developmentally disabled.

begin insert

(f) For purposes of this section, “smoking” has the meaning of
the definition in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin delete

(f)

end delete

begin insert (g) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

SEC. 10.  

Section 1530.7 of the Health and Safety Code is
amended to read:

1530.7.  

(a) Group homes, foster family agencies, small family
homes, transitional housing placement providers, and crisis
nurseries licensed pursuant to this chapter shall maintain a
smoke-free environment in the facility.

(b) A person who is licensed or certified pursuant to this chapter
to provide residential care in a foster family home or certified
family home shall not smoke a tobacco product or permit any other
person to smoke a tobacco product inside the facility, and, when
the child is present, on the outdoor grounds of the facility.

(c) A person who is licensed or certified pursuant to this chapter
to provide residential foster care shall not smoke a tobacco product
in any motor vehicle that is regularly used to transport the child.

begin insert

(d) For purposes of this section, “smoke” has the meaning of
the definition in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin delete

(d)

end delete

begin insert (e) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

SEC. 11.  

Section 1596.795 of the Health and Safety Code is
amended to read:

1596.795.  

(a) The smoking of a tobacco product in a private
residence that is licensed as a family day care home shall be
prohibited in the home and in those areas of the family day care
home where children are present. Nothing in this section shall
prohibit a city or county from enacting or enforcing an ordinance
relating to smoking in a family day care home if the ordinance is
more stringent than this section.

(b)  The smoking of a tobacco product on the premises of a
licensed day care center shall be prohibited.

begin insert

(c) For purposes of this section, “smoking” has the meaning of
the definition in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin delete

(c)

end delete

begin insert (d) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

SEC. 12.  

Section 104495 of the Health and Safety Code is
amended to read:

104495.  

(a)  For the purposes of this section, the following
definitions shall govern:

(1)  “Playground” means any park or recreational area
specifically designed to be used by children that has play equipment
installed, or any similar facility located on public or private school
grounds, or on city, county, or state park grounds.

(2)  “Tot lot sandbox area” means a designated play area within
a public park for the use by children under five years of age. Where
the area is not contained by a fence, the boundary of a tot lot
sandbox area shall be defined by the edge of the resilient surface
of safety material, such as concrete or wood, or any other material
surrounding the tot lot sandbox area.

(3)  “Public park” includes a park operated by a public agency.

begin insert

(4) “Smoke” and “smoking” have the meaning of the definition
in subdivision (c) of Section 22950.5 of the Business and
Professions Code.

end insert begin delete

(4)  “Smoke or smoking” means the carrying of a lighted pipe,
lighted cigar, or lighted cigarette of any kind, or the lighting of a
pipe, cigar, or cigarette of any kind, including, but not limited to,
tobacco, or any other weed or plant.

end delete

(5)  “Cigarette” means the same as defined in Section 104556.

(6)  “Cigar” means the same as defined in Section 104550.

(7) “Tobacco product” means a product or device as defined in
subdivision begin delete (c) end delete begin insert (d) end insert of Section 22950.5 of the Business and
Professions Code.

(b)  No person shall smoke a cigarette, cigar, or other tobacco
product within 25 feet of any playground or tot lot sandbox area.

(c)  No person shall dispose of cigarette butts, cigar butts, or
any other tobacco-related waste within 25 feet of a playground or
a tot lot sandbox area.

(d)  No person shall intimidate, threaten any reprisal, or effect
any reprisal, for the purpose of retaliating against another person
who seeks to attain compliance with this section.

(e)  Any person who violates this section is guilty of an
infraction and shall be punished by a fine of two hundred fifty
dollars ($250) for each violation of this section. Punishment under
this section shall not preclude punishment pursuant to Section
13002, Section 374.4 of the Penal Code, or any other provision of
law proscribing the act of littering.

(f)  The prohibitions contained in subdivisions (b), (c), and (d)
shall not apply to private property.

(g)  The prohibitions contained in subdivisions (b) and (c) shall
not apply to a public sidewalk located within 25 feet of a
playground or a tot lot sandbox area.

(h)  This section shall not preempt the authority of any county,
city, or city and county to regulate smoking around playgrounds
or tot lot sandbox areas. Any county, city, or city and county may
enforce any ordinance adopted prior to January 1, 2002, or may
adopt and enforce new regulations that are more restrictive than
this section, on and after January 1, 2002.

begin delete

SEC. 13.  

Section 113978 of the Health and Safety Code is
amended to read:

113978.  

(a) Food facilities shall have a “no smoking tobacco
products” sign posted in the food preparation, food storage, and
warewashing areas.

(b) For purposes of this section, “tobacco product” means a
product or device as defined in subdivision (c) of Section 22950.5
of the Business and Professions Code.

end delete

begin delete SEC. 14. end delete
begin insert SEC. 13. end insert   

Section 114332.3 of the Health and Safety Code is
amended to read:

114332.3.  

(a) No potentially hazardous food or beverage stored
or prepared in a private home may be offered for sale, sold, or
given away from a nonprofit charitable temporary food facility.
Potentially hazardous food shall be prepared in a food
establishment or on the premises of a nonprofit charitable
temporary food facility.

(b) All food and beverages shall be protected at all times from
unnecessary handling and shall be stored, displayed, and served
so as to be protected from contamination.

(c) Potentially hazardous food and beverages shall be maintained
at or below 7 degrees Celsius (45 degrees Fahrenheit) or at or
above 57.2 degrees Celsius (135 degrees Fahrenheit) at all times.

(d) Ice used in beverages shall be protected from contamination
and shall be maintained separate from ice used for refrigeration
purposes.

(e) All food and food containers shall be stored off the floor on
shelving or pallets located within the facility.

(f) Smoking a tobacco product is prohibited in nonprofit
charitable temporary food facilities.

(g) (1) Except as provided in paragraph (2), live animals, birds,
or fowl shall not be kept or allowed in nonprofit charitable
temporary food facilities.

(2) Paragraph (1) does not prohibit the presence, in any room
where food is served to the public, guests, or patrons, of a guide
dog, signal dog, or service dog, as defined by Section 54.1 of the
Civil Code, accompanied by a totally or partially blind person,
deaf person, person whose hearing is impaired, or handicapped
person, or dogs accompanied by persons licensed to train guide
dogs for the blind pursuant to Chapter 9.5 (commencing with
Section 7200) of Division 3 of the Business and Professions Code.

(3) Paragraph (1) does not apply to dogs under the control of
uniformed law enforcement officers or of uniformed employees
of private patrol operators and operators of a private patrol service
who are licensed pursuant to Chapter 11.5 (commencing with
Section 7580) of Division 3 of the Business and Professions Code,
while these employees are acting within the course and scope of
their employment as private patrol persons.

(4) The persons and operators described in paragraphs (2) and
(3) are liable for any damage done to the premises or facilities by
the dog.

(5) The dogs described in paragraphs (2) and (3) shall be
excluded from food preparation and utensil wash areas. Aquariums
and aviaries shall be allowed if enclosed so as not to create a public
health problem.

(h) All garbage shall be disposed of in a sanitary manner.

(i) Employees preparing or handling food shall wear clean
clothing and shall keep their hands clean at all times.

begin insert

(j) For purposes of this section, “smoking” has the meaning of
the definition in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin delete

(j)

end delete

begin insert (k) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

begin delete SEC. 15. end delete
begin insert SEC. 14. end insert   

Section 114371 of the Health and Safety Code is
amended to read:

114371.  

Certified farmers’ markets shall meet all of the
following requirements:

(a) All food shall be stored at least six inches off the floor or
ground or under any other conditions that are approved. Tents,
canopies, or other overhead coverings are not required for fresh
whole produce sales displays or storage, except when specifically
required pursuant to this chapter. Flavored nuts and dried fruits
that are being sold on a bulk or nonprepackaged basis shall be
displayed and dispensed by the producer from covered containers.
All processed food products being sold shall be in compliance with
Section 113735 and the applicable provisions of Section 110460,
114365, or 114365.2.

(b) Food preparation is prohibited at certified farmers’ markets
with the exception of food samples. Trimming whole produce for
sale shall not be considered food preparation. Distribution of food
samples may occur provided that the following sanitary conditions
exist:

(1) Samples shall be kept in clean, nonabsorbent, and covered
containers intended by the manufacturer for use with foods. Any
cutting or distribution of samples shall only occur under a tent,
canopy, or other overhead covering.

(2) All food samples shall be distributed by the producer in a
manner that is sanitary and in which each sample is distributed
without the possibility of a consumer touching the remaining
samples.

(3) Clean, disposable plastic gloves shall be used when cutting
food samples.

(4) Fresh, whole produce intended for sampling shall be washed
or cleaned in another manner of any soil or other material by
potable water in order that it is wholesome and safe for
consumption.

(5) Notwithstanding Section 114205, available potable water
may be required for handwashing and sanitizing; the need
determined and manner approved by the enforcement agency.

(6) Potentially hazardous food samples shall be maintained at
or below 45 degrees Fahrenheit and shall be disposed of within
two hours after cutting. A certified farmers’ market or an
enforcement officer may cause immediate removal and disposal,
or confiscate and destroy, any potentially hazardous food samples
found not in compliance with this paragraph.

(7) Wastewater shall be disposed of in a facility connected to
the public sewer system or in a manner approved by the
enforcement agency.

(8) Utensils and cutting surfaces shall be smooth, nonabsorbent,
and easily cleanable, or single-use articles shall be utilized. If the
producer uses only single-use articles or maintains an adequate
supply of clean replacement articles readily available at the site at
the time of use, warewashing facilities shall not be required.

(c) Approved toilet and handwashing facilities shall be available
within 200 feet travel distance of the premises of the certified
farmers’ market or as approved by the enforcement officer.

(d) No live animals, birds, or fowl shall be kept or allowed, and
no individual shall bring a live animal, bird, or fowl, within 20
feet of any area where food is stored or held for sale within a
certified farmers’ market. This subdivision does not apply to guide
dogs, signal dogs, or service dogs when used in accordance with
the federal Americans with Disabilities Act of 1990 (42 U.S.C.
Sec. 12101 et seq.), and as provided in Section 36.104 of Title 28
of the Code of Federal Regulations. All guide dogs, signal dogs,
and service dogs shall be used and properly identified in accordance
with Section 54.1 and subdivision (b) of Section 54.2 of the Civil
Code, and Sections 30850, 30851, and 30852 of the Food and
Agricultural Code.

(e) All garbage and refuse shall be stored and disposed of in a
manner approved by the enforcement officer.

(f) Smoking of cigarettes, cigars, pipe tobacco, and other tobacco
products shall not be permitted within 25 feet of the common
commerce area comprised of sales personnel and shopping
customers of the certified farmers’ market.

(g) Notwithstanding Chapter 10 (commencing with Section
114294) vendors selling food adjacent to, and under the jurisdiction
and management of, a certified farmers’ market may store, display,
and sell from a table or display fixture apart from the mobile
facility in a manner approved by the enforcement agency.

(h) Temporary food facilities may be operated at a separate
community event adjacent to, and in conjunction with, certified
farmers’ markets. The organization in control of the community
event at which these temporary food facilities operate shall comply
with Section 114381.1.

(i) All harvested, cut, wrapped, or otherwise processed meat,
poultry, and fish products shall be from approved sources as set
forth in Section 113735, and shall be properly labeled or have
documentation present at the point of sale that demonstrates
compliance with this requirement. All harvested, cut, wrapped, or
otherwise processed meat, poultry, and fish products offered for
sale shall be transported, stored, displayed, and maintained at a
temperature of 41 degrees Fahrenheit or colder. The temperature
holding capabilities of the storage containers used shall be
sufficient to maintain safe product temperatures. Storage containers
for meat, poultry, and fish products shall be insulated and have
interior surfaces that are smooth, nonabsorbent, and easily
cleanable. All meat, poultry, and fish products shall be stored in
a manner that reduces the risk of cross-contamination.

begin insert

(j) For purposes of this section, “smoking” has the meaning of
the definition in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin delete

(j)

end delete

begin insert (k) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

begin delete SEC. 16. end delete
begin insert SEC. 15. end insert   

Section 118910 of the Health and Safety Code is
amended to read:

118910.  

(a) The Legislature declares its intent not to preempt
the field of regulation of the smoking of tobacco products. A local
governing body may ban completely the smoking of tobacco
products, or may regulate smoking of tobacco products in any
manner not inconsistent with this article and Article 3 (commencing
with Section 118920) or any other provision of state law.

begin insert

(b) For purposes of this section, “smoking” has the meaning
of the definition in subdivision (c) of Section 22950.5 of the
Business and Professions Code.

end insert begin delete

(b)

end delete

begin insert (c) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

begin delete SEC. 17. end delete
begin insert SEC. 16. end insert   

Section 118925 of the Health and Safety Code is
amended to read:

118925.  

(a)  begin insert (1) end insert begin insert   end insert It is unlawful for any person to smoke a
tobacco product begin delete or any other plant product end delete in any vehicle of a
passenger stage corporation, the National Railroad Passenger
Corporation (Amtrak) except to the extent permitted by federal
law, in any aircraft except to the extent permitted by federal law,
on a public transportation system, as defined by Section 99211 of
the Public Utilities Code, or in any vehicle of an entity receiving
any transit assistance from the state.

begin insert

(2) (A) For purposes of this subdivision, “smoke” has the
meaning of the definition in subdivision (c) of Section 22950.5 of
the Business and Professions Code.

end insert begin delete

(b)

end delete

begin insert (B) end insert  For purposes of this begin delete section, end delete begin insert subdivision, end insert “tobacco product”
means a product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of
Section 22950.5 of the Business and Professions Code.

begin insert

(b) It is unlawful for any person to smoke any plant product
other than a tobacco product in any vehicle of a passenger stage
corporation, the National Railroad Passenger Corporation
(Amtrak) except to the extent permitted by federal law, in any
aircraft except to the extent permitted by federal law, on a public
transportation system, as defined by Section 99211 of the Public
Utilities Code, or in any vehicle of an entity receiving any transit
assistance from the state.

end insert

begin delete

SEC. 18.  

Section 118930 of the Health and Safety Code is
amended to read:

118930.  

(a) A notice prohibiting smoking tobacco products,
displayed as a symbol and in English, shall be posted in each
vehicle or aircraft subject to this article.

(b) For purposes of this section, “tobacco product” means a
product or device as defined in subdivision (c) of Section 22950.5
of the Business and Professions Code.

SEC. 19.  

Section 118935 of the Health and Safety Code is
amended to read:

118935.  

(a)  Every person and public agency providing
transportation services for compensation, including, but not limited
to, the National Railroad Passenger Corporation (Amtrak) to the
extent permitted by federal law, passenger stage corporations, and
local agencies that own or operate airports, shall designate and
post, by signs of sufficient number and posted in locations that
may be readily seen by persons within the area, a contiguous area
of not less than 75 percent of any area made available by the person
or public agency as a waiting room for these passengers where the
smoking of tobacco products is prohibited. Not more than 25
percent of any given area may be set aside for smokers of tobacco
products.

(b)  Every person or public agency subject to subdivision (a)
shall also post, by sign of sufficient number and posted in locations
as to be readily seen by persons within the area of any building
where tickets, tokens, or other evidences that a fare has been paid
for transportation services that are provided by the person or public
agency, a notice that the smoking of tobacco products by persons
waiting in line to purchase the tickets, tokens, or other evidences
that a fare has been paid is prohibited.

(c)  It is unlawful for any person to smoke tobacco products in
an area posted pursuant to this section.

(d)

 
For purposes of this section, “tobacco product” means a product
or device as defined in subdivision (c) of Section 22950.5 of the
Business and Professions Code.

end delete

begin delete SEC. 20. end delete
begin insert SEC. 17. end insert   

Section 118948 of the Health and Safety Code is
amended to read:

118948.  

(a) It is unlawful for a person to smoke a tobacco
product in a motor vehicle, whether in motion or at rest, in which
there is a minor.

begin insert

(b) For purposes of this section, “smoke” has the meaning of
the definition in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin delete

(b) For purposes of this section, “to smoke” means to have in
one’s immediate possession a lighted pipe, cigar, or cigarette
containing tobacco or any other plant.

end delete

(c) For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

(d)  A violation of this section is an infraction punishable by a
fine not exceeding one hundred dollars ($100) for each violation.

begin delete SEC. 21. end delete
begin insert SEC. 18. end insert   

Section 119405 of the Health and Safety Code is
repealed.

begin delete SEC. 22. end delete
begin insert SEC. 19. end insert   

Section 6404.5 of the Labor Code is amended 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. “Enclosed space”
includes lobbies, lounges, waiting areas, elevators, stairwells, and
restrooms that are a structural part of the building and not
specifically defined in subdivision (d).

(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 in violation of this
section if he or she has taken the following reasonable steps to
prevent smoking by a nonemployee:

(1) 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 ejection 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 of this section, “place of employment” does
not include any of the following:

(1) Sixty-five percent of the guestroom accommodations in a
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.
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 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
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 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 smokers’ 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
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 floorspace, and 20 or fewer full-time
employees working at the facility, but does not include any area
within 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, where smoking is prohibited pursuant
to Section 1596.795 of the Health and Safety Code.

(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.

(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 subparagraph, “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, 1998.

(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
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, 1998, 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, the 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 and Health 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, 1998, the exemptions
specified in paragraphs (7) and (8) of subdivision (d) shall become
inoperative on and after January 1, 1998, until a regulation is
adopted. Upon adoption of such a regulation on or after January
1, 1998, 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, the 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 and Health Standards Board
shall be no less stringent than the regulations of the federal
Environmental Protection Agency.

(4) From January 1, 1997, to December 31, 1997, inclusive,
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), subject to both of the following
conditions:

(A) If practicable, the gaming club or bar or tavern shall
establish a designated nonsmoking area.

(B) If feasible, no employee shall be required, in the
performance of ordinary work responsibilities, to enter any area
in which smoking is permitted.

(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)
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 of tobacco products in an enclosed place of
employment for any 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 full
right 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 smoking is not regulated pursuant to
subdivision (d) or (e), shall be subject to local regulation of
smoking of tobacco products.

(j) Any violation of the prohibition set forth in subdivision (b)
is an infraction, 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 subsequent violation within one year. This
subdivision shall be enforced by local law enforcement agencies,
including, but not 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.

(l) If any provision of this act or the application thereof to any
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 or application, and to this end
the provisions of this act are severable.

begin insert

(m) For purposes of this section, “smoking” has the meaning
of the definition in subdivision (c) of Section 22950.5 of the
Business and Professions Code.

end insert begin delete

(m)

end delete

begin insert (n) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

begin delete SEC. 23. end delete
begin insert SEC. 20. end insert   

Section 308 of the Penal Code is amended to read:

308.  

(a) (1) Every person, firm, or corporation that knowingly
or under circumstances in which it has knowledge, or should
otherwise have grounds for knowledge, sells, gives, or in any way
furnishes to another person who is under 18 years of age any
tobacco, cigarette, or cigarette papers, or blunts wraps, or any other
preparation of tobacco, or any other instrument or paraphernalia
that is designed for the smoking or ingestion of tobacco, tobacco
products, or any controlled substance, is subject to either a criminal
action for a misdemeanor or to a civil action brought by a city
attorney, a county counsel, or a district attorney, punishable by a
fine of two hundred dollars ($200) for the first offense, five
hundred dollars ($500) for the second offense, and one thousand
dollars ($1,000) for the third offense.

Notwithstanding Section 1464 or any other law, 25 percent of
each civil and criminal penalty collected pursuant to this
subdivision shall be paid to the office of the city attorney, county
counsel, or district attorney, whoever is responsible for bringing
the successful action, and 25 percent of each civil and criminal
penalty collected pursuant to this subdivision shall be paid to the
city or county for the administration and cost of the community
service work component provided in subdivision (b).

Proof that a defendant, or his or her employee or agent,
demanded, was shown, and reasonably relied upon evidence of
majority shall be defense to any action brought pursuant to this
subdivision. Evidence of majority of a person is a facsimile of or
a reasonable likeness of a document issued by a federal, state,
county, or municipal government, or subdivision or agency thereof,
including, but not limited to, a motor vehicle operator’s license, a
registration certificate issued under the federal Selective Service
Act, or an identification card issued to a member of the Armed
Forces.

For purposes of this section, the person liable for selling or
furnishing tobacco products to minors by a tobacco vending
machine shall be the person authorizing the installation or
placement of the tobacco vending machine upon premises he or
she manages or otherwise controls and under circumstances in
which he or she has knowledge, or should otherwise have grounds
for knowledge, that the tobacco vending machine will be utilized
by minors.

(2) For purposes of this section, “blunt wraps” means cigar
papers or cigar wrappers of all types that are designed for smoking
or ingestion of tobacco products and contain less than 50 percent
tobacco.

(b) Every person under 18 years of age who purchases, receives,
or possesses any tobacco, cigarette, or cigarette papers, or any
other preparation of tobacco, or any other instrument or
paraphernalia that is designed for the smoking of tobacco, tobacco
products, or any controlled substance shall, upon conviction, be
punished by a fine of seventy-five dollars ($75) or 30 hours of
community service work.

(c) Every person, firm, or corporation that sells, or deals in
tobacco or any preparation thereof, shall post conspicuously and
keep so posted in his, her, or their place of business at each point
of purchase the notice required pursuant to subdivision (b) of
Section 22952 of the Business and Professions Code, and any
person failing to do so shall, upon conviction, be punished by a
fine of fifty dollars ($50) for the first offense, one hundred dollars
($100) for the second offense, two hundred fifty dollars ($250) for
the third offense, and five hundred dollars ($500) for the fourth
offense and each subsequent violation of this provision, or by
imprisonment in a county jail not exceeding 30 days.

(d) For purposes of determining the liability of persons, firms,
or corporations controlling franchises or business operations in
multiple locations for the second and subsequent violations of this
section, each individual franchise or business location shall be
deemed a separate entity.

(e) Notwithstanding subdivision (b), any person under 18 years
of age who purchases, receives, or possesses any tobacco, cigarette,
or cigarette papers, or any other preparation of tobacco, any other
instrument or paraphernalia that is designed for the smoking of
tobacco, or tobacco products is immune from prosecution for that
purchase, receipt, or possession while participating in either of the
following:

(1) An enforcement activity that complies with the guidelines
adopted pursuant to subdivisions (c) and (d) of Section 22952 of
the Business and Professions Code.

(2) An activity conducted by the State Department of Public
Health, a local health department, or a law enforcement agency
for the purpose of determining or evaluating youth tobacco
purchase rates.

(f) It is the Legislature’s intent to regulate the subject matter of
this section. As a result, a city, county, or city and county shall not
adopt any ordinance or regulation inconsistent with this section.

begin insert

(g) For purposes of this section, “smoking” has the meaning
of the definition in subdivision (c) of Section 22950.5 of the
Business and Professions Code.

end insert begin delete

(g)

end delete

begin insert (h) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

begin delete SEC. 24. end delete
begin insert SEC. 21. end insert   

Section 561 of the Public Utilities Code is amended
to read:

561.  

(a) Every railroad corporation, passenger stage
corporation, passenger air carrier, and street railroad corporation
providing departures originating in this state shall prohibit the
smoking of a tobacco product in the passenger seating area of
every passenger car, passenger stage, aircraft, or other vehicle.

(b) Every such corporation and carrier shall display in the
passenger seating area of every passenger car, passenger stage,
aircraft, or other vehicle, notices sufficient in number, posted in
such locations as to be readily seen by boarding passengers,
advising passengers of the no smoking requirements pursuant to
subdivision (a). Words on such notices which state “No Smoking”
or an equivalent phrase shall be at least three-quarters of one inch
high, and any other explanatory words on the notices shall be at
least one-quarter of one inch high.

(c) No person shall smoke a tobacco product in a space known
by him or her to be designated for nonsmoking passengers. A
violation of this subdivision is not a crime.

(d) As used in this section, “passenger air carrier” shall have
the same meaning as provided in Sections 2741 and 2743.

begin insert

(e) For purposes of this section, “smoke” and “smoking” have
the meaning of the definition in subdivision (c) of Section 22950.5
of the Business and Professions Code.

end insert begin delete

(e)

end delete

begin insert (f) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

begin delete SEC. 25. end delete
begin insert SEC. 22. end insert   

Section 99580 of the Public Utilities Code is amended
to read:

99580.  

(a) Pursuant to subdivision (e) of Section 640 of the
Penal Code, a public transportation agency may enact and enforce
an ordinance to impose and enforce an administrative penalty for
any of the acts described in subdivision (b). The ordinance shall
include the provisions of this chapter and shall not apply to minors.

(b) (1) Evasion of the payment of a fare of the system.

(2) Misuse of a transfer, pass, ticket, or token with the intent to
evade the payment of a fare.

(3) Playing sound equipment on or in a system facility or
vehicle.

(4) Smoking a tobacco product, eating, or drinking in or on a
system facility or vehicle in those areas where those activities are
prohibited by that system.

(5) Expectorating upon a system facility or vehicle.

(6) Willfully disturbing others on or in a system facility or
vehicle by engaging in boisterous or unruly behavior.

(7) Carrying an explosive or acid, flammable liquid, or toxic or
hazardous material in a system facility or vehicle.

(8) Urinating or defecating in a system facility or vehicle, except
in a lavatory. However, this paragraph shall not apply to a person
who cannot comply with this paragraph as a result of a disability,
age, or a medical condition.

(9) (A) Willfully blocking the free movement of another person
in a system facility or vehicle.

(B) This paragraph shall not be interpreted to affect any lawful
activities permitted or first amendment rights protected under the
laws of this state or applicable federal law, including, but not
limited to, laws related to collective bargaining, labor relations,
or labor disputes.

(10) Skateboarding, roller skating, bicycle riding, or roller
blading in a system facility, including a parking structure, or in a
system vehicle. This paragraph does not apply to an activity that
is necessary for utilization of a system facility by a bicyclist,
including, but not limited to, an activity that is necessary for
parking a bicycle or transporting a bicycle aboard a system vehicle,
if that activity is conducted with the permission of the agency of
the system in a manner that does not interfere with the safety of
the bicyclist or other patrons of the system facility.

(11) (A) Unauthorized use of a discount ticket or failure to
present, upon request from a system representative, acceptable
proof of eligibility to use a discount ticket, in accordance with
Section 99155, and posted system identification policies when
entering or exiting a system station or vehicle. Acceptable proof
of eligibility must be clearly defined in the posting.

(B) In the event that an eligible discount ticket user is not in
possession of acceptable proof at the time of request, an issued
notice of fare evasion or passenger conduct violation shall be held
for a period of 72 hours to allow the user to produce acceptable
proof. If the proof is provided, that notice shall be voided. If the
proof is not produced within that time period, that notice shall be
processed.

(12) Sale or peddling of any goods, merchandise, property, or
services of any kind whatsoever on the facilities, vehicles, or
property of the public transportation system without the express
written consent of the public transportation system or its duly
authorized representatives.

(c) (1) The public transportation agency may contract with a
private vendor or governmental agency for the processing of notices
of fare evasion or passenger conduct violation, and notices of
delinquent fare evasion or passenger conduct violation pursuant
to Section 99581.

(2) For the purpose of this chapter, “processing agency” means
either of the following:

(A) The agency issuing the notice of fare evasion or passenger
conduct violation and the notice of delinquent fare evasion or
passenger conduct violation.

(B) The party responsible for processing the notice of fare
evasion or passenger conduct violation and the notice of delinquent
violation, if a contract is entered into pursuant to paragraph (1).

(3) For the purpose of this chapter, “fare evasion or passenger
conduct violation penalty” includes, but is not limited to, a late
payment penalty, administrative fee, fine, assessment, and costs
of collection as provided for in the ordinance.

(4) For the purpose of this chapter, “public transportation
agency” shall mean a public agency that provides public
transportation as defined in paragraph (1) of subdivision (f) of
Section 1 of Article XIX A of the California Constitution.

(5) All fare evasion and passenger conduct violation penalties
collected pursuant to this chapter shall be deposited in the general
fund of the county in which the citation is administered.

(d) (1) If a fare evasion or passenger conduct violation is
observed by a person authorized to enforce the ordinance, a notice
of fare evasion or passenger conduct violation shall be issued. The
notice shall set forth the violation, including reference to the
ordinance setting forth the administrative penalty, the date of the
violation, the approximate time, and the location where the
violation occurred. The notice shall include a printed statement
indicating the date payment is required to be made, and the
procedure for contesting the notice. The notice shall be served by
personal service upon the violator. The notice, or copy of the
notice, shall be considered a record kept in the ordinary course of
business of the issuing agency and the processing agency, and
shall be prima facie evidence of the facts contained in the notice
establishing a rebuttable presumption affecting the burden of
producing evidence.

(2) When a notice of fare evasion or passenger conduct violation
has been served, the person issuing the notice shall file the notice
with the processing agency.

(3) If, after a notice of fare evasion or passenger conduct
violation is issued pursuant to this section, the issuing officer
determines that there is incorrect data on the notice, including, but
not limited to, the date or time, the issuing officer may indicate in
writing on a form attached to the original notice the necessary
correction to allow for the timely entry of the corrected notice on
the processing agency’s data system. A copy of the correction shall
be mailed to the address provided by the person cited at the time
the original notice of fare evasion or passenger conduct violation
was served.

(4) If a person contests a notice of fare evasion or passenger
conduct violation, the issuing agency shall proceed in accordance
with Section 99581.

(e) In setting the amounts of administrative penalties for the
violations listed in subdivision (b), the public transportation agency
shall not establish penalty amounts that exceed the maximum fine
amount set forth in Section 640 of the Penal Code.

(f) A person who receives a notice of fare evasion or passenger
conduct violation pursuant to this section shall not be subject to
citation for a violation of Section 640 of the Penal Code.

(g) If an entity enacts an ordinance pursuant to this section it
shall, both two years and five years after enactment of the
ordinance, report all of the following information to the Senate
Committee on Transportation and Housing and the Assembly
Committee on Transportation:

(1) A description of the ordinance, including the circumstances
under which an alleged violator is afforded the opportunity to
complete the administrative process.

(2) The amount of the administrative penalties.

(3) The number and types of citations administered pursuant to
the ordinance.

(4) To the extent available, a comparison of the number and
types of citations administered pursuant to the ordinance with the
number and types of citations issued for similar offenses and
administered through the courts both in the two years prior to the
ordinance and, if any, since enactment of the ordinance.

(5) A discussion of the effect of the ordinance on passenger
behavior.

(6) A discussion of the effect of the ordinance on revenues to
the entity described in subdivision (a) and, in consultation with
the superior courts, the cost savings to the county courts. The
superior courts are encouraged to collaborate on and provide data
for this report.

begin insert

(h) For purposes of this section, “smoking” has the meaning
of the definition in subdivision (c) of Section 22950.5 of the
Business and Professions Code.

end insert begin delete

(h)

end delete

begin insert (i) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

begin delete SEC. 26. end delete
begin insert SEC. 23. end insert   

Section 12523 of the Vehicle Code is amended to
read:

12523.  

(a) No person shall operate a youth bus without having
in possession a valid driver’s license of the appropriate class,
endorsed for passenger transportation and a certificate issued by
the department to permit the operation of a youth bus.

(b) Applicants for a certificate to drive a youth bus shall present
evidence that they have successfully completed a driver training
course administered by or at the direction of their employer
consisting of a minimum of 10 hours of classroom instruction
covering applicable laws and regulations and defensive driving
practices and a minimum of 10 hours of behind-the-wheel training
in a vehicle to be used as a youth bus. Applicants seeking to renew
a certificate to drive a youth bus shall present evidence that they
have received two hours of refresher training during each 12
months of driver certificate validity.

(c) The driver certificate shall be issued only to applicants
qualified by examinations prescribed by the Department of Motor
Vehicles and the Department of the California Highway Patrol,
and upon payment of a fee of twenty-five dollars ($25) for an
original certificate and twelve dollars ($12) for the renewal of that
certificate to the Department of the California Highway Patrol.
The examinations shall be conducted by the Department of the
California Highway Patrol. The Department of Motor Vehicles
may deny, suspend, or revoke a certificate valid for driving a youth
bus for the causes specified in this code or in regulations adopted
pursuant to this code.

(d) An operator of a youth bus shall, at all times when operating
a youth bus, do all of the following:

(1) Use seat belts.

(2) Refrain from smoking tobacco products.

(3) Report any accidents reportable under Section 16000 to the
Department of the California Highway Patrol.

(e) A person holding a valid certificate to permit the operation
of a youth bus, issued prior to January 1, 1991, shall not be required
to reapply for a certificate to satisfy any additional requirements
imposed by the act adding this subdivision until the certificate he
or she holds expires or is canceled or revoked.

begin insert

(f) For purposes of this section, “smoking” has the meaning of
the definition in subdivision (c) of Section 22950.5 of the Business
and Professions Code.

end insert begin delete

(f)

end delete

begin insert (g) end insert  For purposes of this section, “tobacco product” means a
product or device as defined in subdivision begin delete (c) end delete begin insert (d) end insert of Section
22950.5 of the Business and Professions Code.

begin delete SEC. 27. end delete
begin insert SEC. 24. end insert   

This act does not affect any laws or regulations
regarding medical cannabis.

begin delete SEC. 28. end delete
begin insert SEC. 25. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.