Opinion No. (1999)

BILL LOCKYER Attorney General ANTHONY M. SUMMERS Deputy Attorney General THE HONORABLE TONY STRICKLAND, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question: May the owner of a bar or tavern with a total of five or fewer employees permit smoking in the bar or tavern? CONCLUSION The owner of a bar or tavern with a total of five or fewer employees may not permit smoking in the bar or tavern. ANALYSIS Labor Code section 6404.5 1 prohibits smoking in most places of employment in California. The question presented for resolution concerns whether this general prohibition is applicable to bars and taverns with five or fewer employees. We conclude that there is no exemption from the prohibition for such places of employment. An employer must maintain a place of employment that is safe and healthful. (§§ 6400 - 6407 .) In enacting section 6404.5 , the Legislature has sought to protect employees from second-hand smoke and to bring uniformity to workplace smoking restrictions. (§ 6404.5 , subd. (a); 81 Ops.Cal.Atty.Gen. 122 , 123 (1998); 79 Ops.Cal.Atty.Gen. 8 , 13 (1996).) Section 6404.5 states in relevant part: ". . . . . . . . . . . .…