9.14.050 - Determinations regarding "enclosed structure."

The director shall, when requested by the owner of a structure or by the local law enforcement agency, inspect plans of an existing structure or the plans for a renovated or new structure and issue a written determination as to whether any part of the area constitutes an "enclosed space" pursuant to Labor Code § 6404.5(b). The director's determination may be requested as part of an enforcement proceeding or in connection with the building or renovation of a structure that is being proposed as a place where smoking is to be allowed.

The director shall utilize the following procedure when making such a determination: (1)

Does any portion of the border surrounding the space not have a wall?

(2)

If any portion of the border surrounding the space does not have a wall, what percentage of the circumference of the surrounding area does not have a wall? (While there is no percentage requirement, CAL OSHA has advised cities in the past that "enclosure" is "generally understood to mean a space surrounded by four walls, a floor and a ceiling." CAL OSHA has also stated that, on that basis, "bars, taverns or gaming clubs with patio areas which lack a roof or walls would not be an 'enclosed space.'" Likewise, the attorney general has opined that "walls and roof make it an 'enclosed space' as that term is normally understood." However, any opening is not enough, as the code is liberally construed to reduce employee exposure to tobacco smoke. These authorities could be interpreted to mean that a room that is missing a complete wall will not be considered an "enclosed space.")

(3)

If any portion of the border surrounding the space does not have a wall, is that portion directly exposed to outside air with no physical structure separating the space from the outside space?

(4)

Is the space "separated from the surrounding ground" outside? (This determination is based on Attorney General Opinion No. 97-1201 wherein the attorney general opined that "A bar, restaurant, or tavern with walls and a roof is separated from surrounding ground when the doors and windows are open.")

(5)

If it is questionable whether there is a wall or separation from the surrounding ground, does the separation in place allow for ventilation equivalent to a scenario where no wall was in place? (This element would be satisfied if the structure in place of a wall allows for circulation of outside air equivalent to a scenario where no wall was in place.)

(6)

Is there a ceiling covering the space?

(7)

If the space has a ceiling, does the ceiling permit ventilation equivalent to a scenario where no ceiling was in place? (This element would be satisfied if the structure in place of a ceiling allows for circulation of outside air equivalent to a scenario where no ceiling was in place.)

(8)

Is there a roof covering the space?

(9)

If the space has a roof, does the roof permit for ventilation equivalent to a scenario where no roof was in place? (This element would be satisfied if the structure in place of a roof allows for circulation of outside air equivalent to a scenario where no roof was in place.)

(10)

Does the design of the space or the plans submitted by the applicant take significant steps to reduce employee exposure to environmental tobacco smoke? (This includes additional steps to increase ventilation in the space beyond ordinary openings to the outside space, including mechanical ventilation and/or a combination of openings in the ceiling and/or walls/separations.)

(11)

Is the space a "structural part of the building" pursuant to Labor Code § 6404.5(b)? (Labor Code § 6404.5(b) states that "'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).")

(12)

Can it be said that the space is an "enclosed space" pursuant to Labor Code § 6404.5? (The attorney general has opined that "Although the phrase 'enclosed space' has some inherent vagueness, it gives fair warning of the statute's application. Based on the above factors, is the space an enclosed space?")

(Ord. No. 663, § 1, 10-7-2014)