HOUSE BILL No. 4341

 

February 18, 2009, Introduced by Reps. Bauer, Warren, Slavens, Paul Scott, McDowell, Donigan, Barnett, Byrnes, Liss, Valentine, Coulouris, Ebli, Segal, Miller, Hammel, Bledsoe, Bennett, Lipton, Daley, Griffin, Roy Schmidt, Ball, Lindberg, Polidori, Terry Brown, Meadows, Smith, Dean, Lori, Constan, Kennedy, Womack, Marleau and Scripps and referred to the Committee on Regulatory Reform.

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending the heading of part 129 and sections 12601, 12603,

 

12611, 12613, 12614, 12905, and 12915 (MCL 333.12601, 333.12603,

 

333.12611, 333.12613, 333.12614, 333.12905, and 333.12915),

 

sections 12601 and 12613 as amended by 1988 PA 315, sections 12603

 

and 12611 as amended by 1993 PA 217, section 12614 as added by 1988

 

PA 296, section 12905 as amended by 1993 PA 242, and section 12915

 

as amended by 1982 PA 526, and by adding section 12606; and to

 

repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 12601. (1) As used in this part:

 


     (a) "Child caring institution" and "child care center" mean

 

those terms as defined in section 1 of Act No. 116 of the Public

 

Acts of 1973, being section 722.111 of the Michigan Compiled Laws

 

1973 PA 116, MCL 722.111.

 

     (b) "County medical care facility" means that term as defined

 

in section 20104.

 

     (c) "Educational facility" means a building owned, leased, or

 

under the control of a public or private school system, college, or

 

university.

 

     (d) "Food service establishment" means a food service

 

establishment as defined in section 12901 12905.

 

     (e) "Health facility" means a health facility or agency

 

licensed under article 17, except a home for the aged, nursing

 

home, county medical care facility, hospice, or hospital long-term

 

care unit.

 

     (f) "Home for the aged" means that term as defined in section

 

20106.

 

     (g) "Hospice" means that term as defined in section 20106.

 

     (h) "Hospital long-term care unit" means that term as defined

 

in section 20106.

 

     (i) "Licensed premises" means any portion of a building,

 

structure, room, or enclosure in which alcoholic liquor may be sold

 

for consumption on the premises pursuant to a license issued by the

 

Michigan liquor control commission.

 

     (i) (j) "Meeting" means a meeting as defined in section 2 of

 

the open meetings act, Act No. 267 of the Public Acts of 1976,

 

being section 15.262 of the Michigan Compiled Laws 1976 PA 267, MCL

 


15.262.

 

     (j) (k) "Nursing home" means that term as defined in section

 

20109.

 

     (k) "Place of employment" means an enclosed indoor area that

 

contains 1 or more work areas for 1 or more persons employed by a

 

public or private employer. Place of employment does not include

 

any of the following:

 

     (i) A structure used primarily as the residence of the owner or

 

lessee that is also used as an office for the owner or lessee.

 

     (ii) A food service establishment that is subject to section

 

12905.

 

     (l) "Public body" means a public body as defined in section 2

 

of the open meetings act, Act No. 267 of the Public Acts of 1976

 

1976 PA 267, MCL 15.262.

 

     (m) "Public place" , except as otherwise provided in

 

subsection (2), means both any of the following:

 

     (i) An enclosed, indoor area owned or operated by a state or

 

local governmental agency and used by the general public or serving

 

as a place of work for public employees or a meeting place for a

 

public body, including an office, educational facility, home for

 

the aged, nursing home, county medical care facility, hospice,

 

hospital long-term care unit, auditorium, arena, meeting room, or

 

public conveyance.

 

     (ii) An enclosed, indoor area which that is not owned or

 

operated by a state or local governmental agency, is used by the

 

general public, and is 1 any of the following:

 

     (A) An educational facility.

 


     (B) A home for the aged, nursing home, county medical care

 

facility, hospice, or hospital long-term care unit.

 

     (C) An auditorium.

 

     (D) An arena.

 

     (E) A theater.

 

     (F) A museum.

 

     (G) A concert hall.

 

     (H) Any other facility during the period of its use for a

 

performance or exhibit of the arts.

 

     (iii) A place of employment.

 

     (n) "Smoking" or "smoke" means the carrying by a person

 

burning of a lighted cigar, cigarette, pipe, or any other lighted

 

smoking device matter or substance that contains a tobacco product.

 

     (o) "Smoking paraphernalia" means any equipment, apparatus, or

 

furnishing that is used in or necessary for the activity of

 

smoking.

 

     (p) "Tobacco product" means a product that contains tobacco

 

and is intended for human consumption, including, but not limited

 

to, cigarettes, noncigarette smoking tobacco, or smokeless tobacco,

 

as those terms are defined in section 2 of the tobacco products tax

 

act, 1993 PA 327, MCL 205.422, and cigars.

 

     (q) "Work area" means a site within a place of employment at

 

which 1 or more employees perform services for an employer.

 

     (2) Public place does not include a private, enclosed room or

 

office occupied exclusively by a smoker, even if the room or

 

enclosed office may be visited by a nonsmoker.

 

     (2) (3) In addition, article 1 contains general definitions

 


and principles of construction applicable to all articles of this

 

code.

 

     Sec. 12603. (1) Except as otherwise provided by law, A state

 

or local governmental agency or the person who owns or operates a

 

public place shall not allow smoking in the public place, and an

 

individual shall not smoke in a public place or at a meeting of a

 

public body. , except in a designated smoking area.

 

     (2) This section does not apply to a room, hall, or building

 

used for a private function if the seating arrangements are under

 

the control of the sponsor of the function and not under the

 

control of the state or local governmental agency or the person who

 

owns or operates the room, hall, or building.

 

     (3) This section does not apply to a food service

 

establishment or to licensed premises.

 

     (4) This section shall not apply to a private educational

 

facility after regularly scheduled school hours.

 

     (2) "No smoking" signs or the international "no smoking"

 

symbol shall be clearly and conspicuously posted at the entrances

 

to and in every building or other area where smoking is prohibited

 

under this section. The owner, operator, manager, or person having

 

control of the building or other area shall post the signs. The

 

owner, operator, manager, or person having control of the area

 

shall remove all ashtrays and other smoking paraphernalia from

 

anywhere smoking is prohibited under this section. The owner,

 

operator, manager, or person having control of the area shall

 

inform persons smoking in violation of this act that they are in

 

violation of state law and subject to penalties.

 


     (3) This section may be referred to as the "Dr. Ron Davis

 

Law".

 

     Sec. 12606. (1) An employer or a food service establishment

 

shall not take any retaliatory or adverse personnel action against

 

an employee or applicant for employment on the basis of the

 

individual's exercise of or attempt to exercise his or her rights

 

under this part with respect to place of employment or part 129

 

with respect to food service establishments. Each employer subject

 

to this part and each food service establishment subject to part

 

129 shall adopt, implement, publish, maintain, and modify to

 

reflect any changes a written nonsmoking policy. The employer or

 

food service establishment shall prominently post the nonsmoking

 

policy in the workplace and, within 3 weeks of its adoption, shall

 

disseminate the policy to all employees and to new employees when

 

hired. The employer or food service establishment shall supply a

 

written copy of the nonsmoking policy upon request to any employee

 

or applicant for employment. The employer or food service

 

establishment shall provide a copy of the nonsmoking policy to the

 

department upon request. The employer or food service establishment

 

shall include the following in the written policy required under

 

this subsection:

 

     (a) That smoking is prohibited as required in section 12603 or

 

12905.

 

     (b) That an employee or applicant for employment who exercises

 

or attempts to exercise his or her rights with respect to place of

 

employment or with respect to food service establishments is

 

protected against retaliatory or adverse personnel action.

 


     (2) If an employer or food service establishment is bound by a

 

collective bargaining agreement on the effective date of this

 

section, nothing in this section impairs, diminishes, or otherwise

 

affects any of the rights currently afforded to the employees under

 

the controlling collective bargaining agreement. However, once the

 

collective bargaining agreement in effect on the effective date of

 

this section expires, the smoking prohibitions of sections 12603

 

and 12905 control and parties shall not negotiate any provision

 

that conflicts with these sections.

 

     Sec. 12611. A person who violates section 12603(1) or 12604a

 

or a person or state or local governmental agency that owns or

 

operates a public place and that violates section 12605 or 12607

 

this part or part 129 shall be directed to comply with this part

 

act and is subject to a civil fine of not more than $100.00 for a

 

first violation and not more than $500.00 for a second or

 

subsequent violation.

 

     Sec. 12613. (1) Subject to subsection (2), the department

 

shall enforce this part and part 129 and any rules promulgated

 

under this part or part 129 pursuant to sections 2262(2) and 2263.

 

In addition to the civil fine authorized under section 12611, the

 

department may enforce this part and part 129 and the any rules

 

promulgated under this part or part 129 through an action commenced

 

pursuant to section 2255 or any other appropriate action authorized

 

by law.

 

     (2) Pursuant to section 2235, the department may authorize a

 

local health department to enforce this part and part 129 and the

 

any rules promulgated under this part or part 129. A local health

 


department authorized to enforce this part and part 129 and the any

 

rules promulgated under this part or part 129 shall enforce this

 

part and part 129 and the any rules promulgated under this part or

 

part 129 pursuant to sections 2461(2) and 2462. In addition to the

 

civil fine authorized under section 12611, a local health

 

department may enforce this part and part 129 and the any rules

 

promulgated under this part or part 129 through an action commenced

 

pursuant to section 2465 or any other appropriate action authorized

 

by law.

 

     (3) In addition to any other enforcement action authorized by

 

law, a person alleging a violation of this part or part 129 may

 

bring a civil action for appropriate injunctive relief, if the

 

person has used the public place, child caring institution, or

 

child care center , health facility, or private practice office of

 

an individual who is licensed under article 15 within 60 days after

 

before the civil action is filed.

 

     (4) The remedies under this part are independent and

 

cumulative. The use of 1 remedy by a person shall not bar the use

 

of other lawful remedies by that person or the use of a lawful

 

remedy by another person.

 

     Sec. 12614. (1) The director shall report biennially to the

 

legislature on the effect and enforcement of this part and part

 

129. The report shall include, at a minimum, both of the following:

 

     (a) The policy of each state agency that has developed a

 

policy for the separation of smokers and nonsmokers.

 

     (b) Compliance compliance with section 12607 sections 12603

 

and 12905.

 


     (2) Upon request of the department, the director of the

 

department of management and budget annually shall report to the

 

department, at a minimum, all of the following:

 

     (a) A a list of each public place owned or operated by the

 

state .

 

     (b) Compliance and its compliance with section 12607 12603.

 

     (c) The smoking policy, if any, adopted by each public place

 

listed under subdivision (a).

 

PART 129. FOOD SERVICE SANITATION SMOKE-FREE FOOD SERVICE

 

ESTABLISHMENTS

 

     Sec. 12905. (1) Except as otherwise provided in this section,

 

all public areas of a A food service establishment shall be

 

nonsmoking not allow smoking, and an individual shall not smoke in

 

a food service establishment. A food service establishment shall

 

comply with section 12606. As used in this subsection, "public

 

area" includes, but is not limited to, a bathroom, a coatroom, and

 

an entrance or other area used by a patron when not seated at a

 

food service table or counter. Public area does not include the

 

lobby, waiting room, hallways, and lounge areas of a food service

 

establishment, but these areas are not required to be designated as

 

smoking areas.

 

     (2) Subject to subsection (3), a food service establishment

 

with a seating capacity of fewer than 50, whether or not it is

 

owned and operated by a private club, and a food service

 

establishment that is owned and operated by a private club may

 

designate up to 75% of its seating capacity as seating for smokers.

 

A food service establishment with a seating capacity of 50 or more

 


that is not owned or operated by a private club may designate up to

 

50% of its seating capacity as seating for smokers. A food service

 

establishment that designates seating for smokers shall clearly

 

identify the seats for nonsmokers as nonsmoking, place the seats

 

for nonsmokers in close proximity to each other, and locate the

 

seats for nonsmokers so as not to discriminate against nonsmokers.

 

     (3) A food service establishment shall not use the definition

 

of seating capacity and the exemption from that definition set

 

forth in subsection (9)(c) to increase the amount of seating for

 

smokers above 75%.

 

     (2) (4) In addition to a food service establishment that

 

provides its own seating, subsections (1), (2), and (3) also apply

 

subsection (1) applies to a food service establishment or group of

 

food service establishments that are located in a shopping mall

 

where in which the seating for the food service establishment or

 

group of food service establishments is provided or maintained, or

 

both, by the person who owns or operates the shopping mall. As used

 

in this subsection, "shopping mall" means a shopping center with

 

stores facing an enclosed mall.

 

     (3) (5) The director, an authorized representative of the

 

director, or a representative of a local health department to which

 

the director has delegated responsibility for enforcement of this

 

part shall , in accordance with R 325.25902 of the Michigan

 

administrative code, inspect each food service establishment that

 

is subject to this section. The inspecting entity shall determine

 

compliance with this section during each inspection.

 

     (4) (6) The department or a local health department shall

 


utilize compliance or notify the department of agriculture of any

 

noncompliance with this section or with rules promulgated to

 

implement this section. The department of agriculture may use

 

compliance or noncompliance with this section or any rules

 

promulgated to implement this section as criteria in the

 

determination of whether to deny, suspend, limit, or revoke a

 

license pursuant to section 12907(1) issued under the food law of

 

2000, 2000 PA 92, MCL 289.1101 to 289.8111.

 

     (5) (7) Within 5 days after receipt of a written complaint of

 

violation of this section, a local health department shall

 

investigate the complaint to determine compliance. If a violation

 

of this section is identified and not corrected as ordered by the

 

local health department within 2 days after receipt of the order by

 

the food service establishment, the local health officer may issue

 

an order to cease food service operations until compliance with

 

this section is achieved.

 

     (8) This section does not apply to a private facility that is

 

serviced by a catering kitchen or to a separate room in a food

 

service establishment that is used for private banquets. This

 

section does not apply to a food service establishment that is

 

owned and operated by a fraternal organization, if service is

 

limited to members of the fraternal organization and their guests.

 

     (6) "No smoking" signs or the international "no smoking"

 

symbol shall be clearly and conspicuously posted at the entrance to

 

and in every building or other area where smoking is prohibited

 

under this section. The owner, operator, manager, or person having

 

control of the building or other area shall post the signs. The

 


owner, operator, manager, or person having control of the area

 

shall remove all ashtrays and other smoking paraphernalia from any

 

area where smoking is prohibited under this section. The owner,

 

operator, manager, or person having control of the area shall

 

inform persons smoking in violation of this act that they are in

 

violation of state law and subject to penalties.

 

     (7) (9) As used in this section:

 

     (a) "Bar" means that term as defined in section 2a of the

 

Michigan liquor control act, Act No. 8 of the Public Acts of the

 

Extra Session of 1933, being section 436.2a of the Michigan

 

Compiled Laws.

 

     (b) "Room" means an area that is physically distinct from the

 

main dining area of a food service establishment and from which

 

smoke cannot pass into the main dining area.

 

     (c) "Seating capacity" means the actual number of seats for

 

patrons in a food service establishment. Seating capacity does not

 

include seats located at a bar or seats at tables that are located

 

adjacent to a bar, if meals are not served at those tables.

 

     (a) "Food service establishment" means that term as defined in

 

section 1107 of the food law of 2000, 2000 PA 92, MCL 289.1107.

 

     (b) "Shopping mall" means a shopping center with stores facing

 

an enclosed mall.

 

     (c) (d) "Smoking", means the carrying by an individual of a

 

lighted cigar, cigarette, or other lighted smoking device "smoking

 

paraphernalia", and "tobacco product" mean those terms as defined

 

in section 12601.

 

     Sec. 12915. A county, city, village, or township shall not

 


regulate those aspects of food service establishments or vending

 

machines which are subject to regulation under this part except to

 

the extent necessary to carry out the responsibility of a local

 

health department pursuant to sections 12906 and 12908 may adopt

 

and enforce local codes, ordinances, or regulations that comply

 

with at least the minimum applicable standards set forth in this

 

part. This part shall not relieve the applicant for a license or a

 

licensee from responsibility for securing a local permit or

 

complying with applicable local codes, regulations, or ordinances

 

not that are in conflict with addition to this part.

 

     Enacting section 1. (1) Sections 12604a, 12605, 12607, 12615,

 

12617, 12909, 21333, and 21733 of the public health code, 1978 PA

 

368, MCL 333.12604a, 333.12605, 333.12607, 333.12615, 333.12617,

 

333.12909, 333.21333, and 333.21733, are repealed.

 

     (2) Section 6127 of the food law of 2000, 2000 PA 92, MCL

 

289.6127, is repealed.