BILL NUMBER: SB 140 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 10, 2015
INTRODUCED BY Senator Leno
(Principal coauthor: Senator Pan)
(Principal coauthor: Assembly Member Ting)
( Coauthor: Senator
Hernandez Coauthors: Senators
Hernandez, McGuire, and Stone )
(Coauthor: Assembly Member Chiu)
JANUARY 26, 2015
An act to amend Sections 22950.5, 22958, and
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, 113978,
114332.3, 114371, 118910, 118925, 118930, 118935, 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 bill would change the STAKE Act's definition of tobacco
products to include electronic devices, such as electronic
cigarettes, that deliver nicotine or other substances, 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 the 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 new
definition of 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.
(c) (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
substances 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 the age of 18 years
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 from four hundred dollars
($400) to six hundred dollars ($600) for the first violation, (2) a
civil penalty of from nine hundred dollars ($900)
to one thousand dollars ($1,000) for the second violation within a
five-year period, (3) a civil penalty of from 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 from 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 from
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 (c) 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 tobacco products as defined
in subdivision (b) of Section 30121 and subdivision (b) of Section
30131.1 of the Revenue and Taxation Code a product or
device as defined in subdivision (c) 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. 4. 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.
(f) 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. 5. 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.
(c) 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. 6. 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.
(c) 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. 7. 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.
(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.
SEC. 8. 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.
(f) 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. 9. 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.
(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.
SEC. 10. 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.
(c) 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. 11. 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.
(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.
(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 (c) 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.
SEC. 12. 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.
SEC. 13. SEC. 14. 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 beverage 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 beverage
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.
(j) 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. 14. SEC. 15. 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 F 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 F 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.
(j) 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. 15. SEC. 16. 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.
(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. 16. SEC. 17. Section 118925 of
the Health and Safety Code is amended to read:
118925. (a) It is unlawful for any person to smoke a tobacco
product or any other plant 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.
(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. 17. 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. 18. 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.
SEC. 19. SEC. 20. 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.
(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.
(c) 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.
(d) A violation of this section is an infraction punishable by a
fine not exceeding one hundred dollars ($100) for each violation.
SEC. 20. SEC. 21. Section 119405 of
the Health and Safety Code is repealed.
SEC. 21. SEC. 22. 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.
(m) 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. 22. SEC. 23. 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 the age of 18 years
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 the age of 18 years
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.
(g) 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. 23. SEC. 24. 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 an 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.
(e) 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. 24. SEC. 25. 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.
(h) 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. 25. SEC. 26. 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.
(f) 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. 27. This act does not affect any laws or
regulations regarding medical cannabis.
SEC. 26. SEC. 28. 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.