TO BE PUBLISHED IN THE OFFICIAL REPORTS 

OFFICE OF THE ATTORNEY GENERAL 

State of California 

DANIEL E. LUNGREN 

Attorney General 

______________________________________ 

OPINION : 

 : No. 97-1201 

of : 

 : March 17, 1998 

DANIEL E. LUNGREN : 

Attorney General : 

 : 

GREGORY L. GONOT : 

Deputy Attorney 

General 

: 

 : 

______________________________________________________________________ 

THE HONORABLE BRETT GRANLUND, MEMBER OF THE CALIFORNIA STATE 

ASSEMBLY, has requested an opinion on the following question: 

May the owner of a bar, restaurant, or tavern allow smoking in his or her establishment by 

opening all doors and windows during the hours of employment? 

CONCLUSION 

The owner of a bar, restaurant, or tavern may not allow smoking in his or her establishment 

merely by opening all doors and windows during the hours of employment. 

ANALYSIS 

Labor Code section 6404.5 Footnote No. 1 prohibits smoking in most places of employment 

in California. Specifically, subdivision (b) of section 6404.5 provides: 

"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." Footnote No, 2 

In enacting section 6404.5 the Legislature has sought both to protect employees from secondhand smoke and to bring uniformity to workplace smoking restrictions. Subdivision (a) of 

section 6404.5 states: 
"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." 

Section 6404.5 makes any violation of the prohibition set forth in subdivision (b) an 

infraction punishable by a fine not to exceed $100 for a first violation, $200 for a second 

violation within one year, and $500 for a third and subsequent violation within one year. (§ 

6404.5, subd. (j).) An employer who takes specified actions to prevent smoking by 

nonemployees may avoid prosecution under the statute. (§ 6404.5, subd. (c).) 

We are asked to determine the meaning of the phrase "enclosed space" for purposes of 

section 6404.5. May the owner of a bar, restaurant, or tavern avoid a violation of section 6404.5 

by opening all doors and windows during the hours of employment? We conclude that a 

violation of the statute may not be avoided merely by taking such steps. 

Preliminarily, we note that no administrative agency of the state, such as the California 

Occupational Safety and Health Standards Board or the Division of Occupational Safety and 

Health, has adopted regulations implementing section 6404.5. Footnote No, 3 Nor are we aware of 

any court decision or administrative decision bearing upon what constitutes an "enclosed space" 

as that term is used in section 6404.5. Does such lack of prior interpretation prevent prosecution 

under the statute? It does not. 

The Fifth Amendment of the United States Constitution provides in part: "No person shall 

. . . be deprived of life, liberty, or property, without due process of law . . . ." The Fourteenth 

Amendment similarly provides that "nor shall any state deprive any person of life, liberty, or 

property, without due process of law. . . ." The California Constitution, article I, section 7, 

subdivision (a) states: "A person may not be deprived of life, liberty, or property without due 

process of law . . . ." 

"The requirement of a reasonable degree of certainty in legislation, especially in the 

criminal law, is a well established element of the guarantee of due process of law." (In re 

Newbern (1960) 53 Cal.2d 786, 792.) Footnote No, 4 "Due process requires the state to give its 

citizens fair notice of potentially criminal conduct." (People v. Sipe (1995) 36 Cal.App.4th 468, 

480; see Kolender v. Lawson (1983) 461 U.S. 352, 357; In re Juan C. (1994) 28 Cal.App.4th 

1093, 1102.) 
Nevertheless, precise language covering every type of proscribed conduct is unnecessary. 

(76 Ops.Cal.Atty.Gen. 67, 70 (1993).) In People v. Deskin (1992) 10 Cal.App.4th 1397, 1400, 

the court explained: 

"Although a particular statute is somewhat vague or general in its language because of 

difficulty in defining the subject matter with precision, it will be upheld if its meaning is 

reasonably ascertainable. [Citation.] Courts must view the statute from the standpoint of the 

reasonable person who might be subject to its terms. Thus, '[i]t is not necessary that a statute 

furnish detailed plans and specifications of the acts or conduct prohibited. The requirement of 

reasonable certainty does not preclude the use of ordinary terms to express ideas which find 

adequate interpretation in common usage and understanding.' [Citation.]" 

In In re Angel J. (1992) 9 Cal.App.4th 1096, 1101, the court stated: "'"'Fair notice' requires only 

that a violation be described with a '"reasonable degree of certainty"' . . . so that 'ordinary people 

can understand what conduct is prohibited.' . . . ."' [Citations.]" In People v. Taylor (1992) 7 

Cal.App.4th 677, 693, the court quoted People v. Gibbons (1989) 215 Cal.App.3d 1204, 1210, as 

follows: 

"'The concept of fair notice is not intended "'to convert into a constitutional dilemma the 

practical difficulties in drawing criminal statutes both general enough to take into account a 

variety of human conduct and sufficiently specific to provide fair warning that certain kinds of 

conduct are prohibited.' [Citation.]" [Citation.] In the case of judicial construction, due process is 

not violated merely because the language of the statute is being applied to a particular situation 

for the first time. . . . Nor do due process concerns of fair warning arise where the language of 

the statute is not being expanded in an unforeseeable manner even though the case is one of first 

impression and even if dicta in prior decisions suggested a narrower application. . . .'" 

In language frequently quoted, the United States Supreme Court stated in Rose v. Locke

(1975) 423 U.S. 48, 49-50: 

"It is settled that the fair-warning requirement embodied in the Due Process Clause 

prohibits the States from holding an individual 'criminally responsible for conduct which he 

could not reasonably understand to be proscribed.' [Citations.] But this prohibition against 

excessive vagueness does not invalidate every statute which a reviewing court believes could 

have been drafted with greater precision. Many statutes will have some inherent vagueness, for 

'[i]n most English words and phrases there lurk uncertainties.' [Citation.] Even trained lawyers 

may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they 

may say with any certainty what some statutes may compel or forbid. [Citations.] All the Due 

Process Clause requires is that the law give sufficient warning that men may conduct themselves 

so as to avoid that which is forbidden." (Fn. omitted.) 

In Roth v. United States (1957) 354 U.S. 476, 491-492, the court additionally pointed out: 

". . . This Court . . . has consistently held that lack of precision is not itself offensive to the 

requirements of due process. '. . . [T]he Constitution does not require impossible standards'; all 

that is required is that the language 'conveys sufficiently definite warning as to the proscribed 
conduct when measured by common understanding and practices. . . .' [Citation.]. . . . '. . . That 

there may be marginal cases in which it is difficult to determine the side of the line on which a 

particular fact situation falls is not sufficient reason to hold the language too ambiguous to define 

a criminal offense. . . .' [Citations.]" 

In People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 345, the court upheld the 

language of a statute against a charge of vagueness by looking to the dictionary for definitions of 

the statutory terms, noting: 

". . .'"A statute will not be held void for uncertainty if any reasonable and practical 

construction can be given its language." It will be upheld if its terms may be made reasonably 

certain by reference to other sources.' [Citations.]" 

In People v. Poulin (1972) 27 Cal.App.3d 54, 60, the Court quoted from People v. Daniel (1959) 

168 Cal.App.2d Supp. 788, 797-798, as follows: 

"'A statute is not necessarily invalid even though in its definition some matter of degree may 

be involved; it will not generally be held invalid if the language is sufficient to enable the 

attorney to explain to his client and advise what questions may be left to the determination of the 

jury, so that he will be able to govern himself accordingly; neither is it necessary that the words 

have a universally recognized meaning; that the charging words will ordinarily be held sufficient 

if their meaning can be fairly ascertained by references to similar statutes or other judicial 

determinations, or by reference to the common law, or to the dictionary, or if the words 

themselves had a common and generally accepted meaning; that the long continued use of words 

in a statute without question as to their sufficiency creates a presumption that they have come to 

be well understood by those to whom they apply. . . . That the courts will consider the underlying 

purpose of the law and although it might desire a little more certainty, as a general rule the court 

will uphold the validity of the statute and interpret it to the best of its ability, particularly when 

any attempt to make it more specific and certain, would tend to nullify its fundamental purpose. . 

. .'" 

In People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312, the court looked to the 

dictionary for definitions in upholding a statute containing a civil penalty of up to $2,500 per day 

for each violation, stating: 

". . .[T]he rule of strict construction of penal statutes has generally been applied in this state 

to criminal statutes, rather than statutes which prescribe only civil monetary penalties. 

[Citations.] . . . . 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

". . .[C]ivil statutes for the protection of the public are, generally, broadly construed in favor 

of that protective purpose. [Citations.] . . . ." 

In In re Christopher J. (1980) 102 Cal.App.3d 76, the defendant claimed that he had not 

committed a burglary (Pen. Code, § 459) because he had not entered a "building." The court 
upheld the conviction, concluding that the term "building" could be interpreted as including an 

attached carport that had a roof and was open on two sides. 

Similarly, here, we have no doubt that an "enclosed space" for purposes of section 6404.5 

includes a bar, restaurant, or tavern even when its doors and windows are open. Looking to the 

dictionary (see, e.g., People v. Spencer (1975) 52 Cal.App.3d 563, 565), we find that "enclose" 

ordinarily means "to close in" or "surround" and that an "enclosure" is "the separation of land 

from common ground by a fence or barrier" or "separation . . . of one part of a building from 

others." (Webster's Third New Internat. Dict. (1971) pp. 746-747.) We have examined the 

legislative history of section 6404.5 and find that it supports application of the statute to 

buildings regardless of whether the doors and windows are open. 

A bar, restaurant, or tavern with walls and a roof is separated from surrounding ground 

when the doors and windows are open. The walls and roof make it an "enclosed space" as that 

term is normally understood. Although the phrase "enclosed space" has some inherent 

vagueness, it gives fair warning of the statute's application. The salutary purposes of section 

6404.5, as a public health and employee safety measure, may not be thwarted by the mere 

opening of doors and windows. 

We conclude that the owner of a bar, restaurant, or tavern may not allow smoking in his or 

her establishment merely by opening all doors and windows during the hours of employment. 

* * * * * 

Footnote No. 1 

All section reference are to the Labor Code unless otherwise specified. 

Footnote No. 2 

Various exclusions from the term "place of employment" are set forth in the statute. (§ 6404.5, subd. (d).) 

Footnote No. 3 

If a regulation is duly adopted, subdivision (f)(3) of section 6404.5 authorizes smoking in gaming clubs, bars, and 

taverns if it complies with the terms of the regulation. 

Footnote No. 4 

"Civil as well as criminal statutes must be sufficiently clear as to give a fair warning of the conduct prohibited . . . ." 

(Morrison v. State Board of Education (1960) 1 Cal.3d 214, 231.)