Confusing Smoking Exemptions Persist
California Lawyer

Confusing Smoking Exemptions Persist

June 2014

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Richard H. Lee, a partner and litigator at Salisian Lee in Los Angeles, is a smoker. That doesn't always go over well - even though he smokes only about a pack of cigarettes a week, along with an occasional cigar. So he's always mindful of whom he invites along when he pops into a cigar bar to relax: "I'm very careful not to put someone I only know professionally in an awkward position."

For more than 15 years, California has prohibited smoking in restaurants and most bars and other indoor places. (See Cal. Labor Code ยง 6404.5.) With many outdoor locations now off limits too, the prohibitions are so thorough that it can feel almost illicit to glimpse people puffing away in the occasional shop or bar. But those venues are likely perfectly law-abiding, just benefiting from a confusing collection of exemptions. Cigar bars, tobacco shops, hotel lobbies, workplaces with fewer than five employees, and a small number of other businesses may allow smoking - as long as they don't serve food.

The confusion is likely to grow as many cities and the federal government restrict the use of electronic cigarettes (which emit vapor instead of smoke), while some businesses and municipalities allow "vaping" in places where smoking is banned.

A 2007 effort to close California's smoking loopholes and a 2010 attempt to ban smoking at state parks and beaches both failed when then-Governor Arnold Schwarzenegger, a cigar smoker, vetoed them. Attempts at change haven't fared any better under Governor Jerry Brown, whose reelection campaign has so far received more than $50,000 from Philip Morris USA.

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