January 20, 2011, Introduced by Rep. Geiss and referred to the Committee on Regulatory Reform.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 12601, 12603, 12606a, and 12905 (MCL
333.12601, 333.12603, 333.12606a, and 333.12905), sections 12601,
12603, and 12905 as amended and section 12606a as added by 2009 PA
188, and by adding section 12603a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 12601. (1) As used in this part:
(a) "Casino" means that term as defined in section 2 of the
Michigan gaming control and revenue act, 1996 IL 1, MCL 432.202.
Casino does not include a casino operated under the Indian gaming
regulatory act, 25 USC 2701 to 2721.
(b) "Child caring institution" and "child care center" mean
those terms as defined in section 1 of 1973 PA 116, MCL 722.111.
(c) "Cigar" means any roll of tobacco weighing 3 or more
pounds per 1,000, which roll has a wrapper or cover consisting only
of tobacco.
(d) "Cigar bar" means an establishment or area within an
establishment that is open to the public and is designated for the
smoking of cigars, purchased on the premises or elsewhere.
(e) "County medical care facility" means that term as defined
in section 20104.
(f) "Educational facility" means a building owned, leased, or
under the control of a public or private school system, college, or
university.
(g) "Food service establishment" means a food service
establishment as defined in section 12905.
(h) "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.
(i) "Home for the aged" means that term as defined in section
20106.
(j) "Hospice" means that term as defined in section 20106.
(k) "Hospital long-term care unit" means that term as defined
in section 20106.
(l) "Licensed club" means a club that is licensed under section
532 of the Michigan liquor control code of 1998, 1998 PA 58, MCL
436.1532.
(m) (l) "Meeting"
means a meeting as defined in section 2 of
the open meetings act, 1976 PA 267, MCL 15.262.
(n) (m)
"Motor vehicle" means
that term as defined in section
33 of the Michigan vehicle code, 1949 PA 300, MCL 257.33.
(o) (n)
"Nursing home" means that
term as defined in section
20109.
(p) (o)
"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 and
for no other employees.
(ii) A food service establishment that is subject to section
12905.
(iii) A motor vehicle.
(q) (p)
"Public body" means a
public body as defined in
section 2 of the open meetings act, 1976 PA 267, MCL 15.262.
(r) (q)
"Public place" ,
except as otherwise provided in
subsection
(2), means 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 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 that is not owned or operated by
a state or local governmental agency, is used by the general
public, and is 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) Unless otherwise exempt under this part, a place of
employment.
(s) (r)
"Smoking" or
"smoke" means the burning of a lighted
cigar, cigarette, pipe, or any other matter or substance that
contains a tobacco product.
(t) (s)
"Smoking paraphernalia"
means any equipment,
apparatus, or furnishing that is used in or necessary for the
activity of smoking.
(u) (t)
"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.
(v) (u)
"Tobacco specialty retail
store" means an
establishment in which the primary purpose is the retail sale of
tobacco products and smoking paraphernalia, and in which the sale
of other products is incidental. Tobacco specialty retail store
does not include a tobacco department or section of a larger
commercial establishment or any establishment with any type of
liquor, food, or restaurant license.
(w) (v)
"Work area" means a site
within a place of employment
at which 1 or more employees perform services for an employer.
(2) In addition, article 1 contains general definitions and
principles of construction applicable to all articles of this code.
Sec.
12603. (1) An Except as
otherwise provided in this part,
an individual shall not smoke in a public place or at a meeting of
a public body, and a state or local governmental agency or the
person who owns, operates, manages, or is in control of a public
place shall make a reasonable effort to prohibit individuals from
smoking in a public place.
(2) The owner, operator, manager, or person having control of
a public place, a food service establishment, or a casino subject
to section 12606b shall do all of the following:
(a) Clearly and conspicuously post "no smoking" signs or the
international "no smoking" symbol at the entrances to and in every
building or other area where smoking is prohibited under this act.
(b) Remove all ashtrays and other smoking paraphernalia from
anywhere smoking is prohibited under this act.
(c) Inform individuals smoking in violation of this act that
they are in violation of state law and subject to penalties.
(d) If applicable, refuse to serve an individual smoking in
violation of this act.
(e) Ask an individual smoking in violation of this act to
refrain from smoking and, if the individual continues to smoke in
violation of this act, ask him or her to leave the public place,
food service establishment, or nonsmoking area of the casino.
(3) The owner, operator, manager, or person in control of a
hotel, motel, or other lodging facility shall comply with
subsection (2) and section 12606. It is an affirmative defense to a
prosecution or civil or administrative action for a violation of
this section that the owner, operator, manager, or person in
control of a hotel, motel, or other lodging facility where smoking
is prohibited under this section made a good faith effort to
prohibit smoking by complying with subsection (2). To assert the
affirmative defense under this subsection, the owner, operator,
manager, or person shall file a sworn affidavit setting forth his
or her efforts to prohibit smoking and his or her actions of
compliance with subsection (2).
(4) This section may be referred to as the "Dr. Ron Davis
Law".
Sec. 12603a. The owner or operator of a food service
establishment or a place of employment that is not a public place
described in section 12601(r)(i) or (ii) may allow smoking in a legal
smoking room in the eligible place of employment or food service
establishment if all of the following requirements are met:
(a) The legal smoking room is an enclosed room separate from
the nonsmoking areas of the eligible place of employment or food
service establishment. The legal smoking room shall be enclosed on
all sides by any combination of solid walls, windows, or doors that
extend from the floor to ceiling.
(b) The legal smoking room is equipped with 1 of the
following:
(i) A separate ventilation or air filtration system designed to
remove smoke from the air in the room and prevent smoke from
infiltrating into the nonsmoking areas of the eligible place of
employment or food service establishment.
(ii) A double-door system designed to prevent the release of
smoke from the room by trapping it between the 2 doors and
preventing smoke from infiltrating into the nonsmoking areas of the
eligible place of employment or food service establishment.
(c) No individual is required to enter or pass through the
legal smoking room of the eligible place of employment or food
service establishment unless he or she does so on a voluntary
basis. This subdivision applies to an employee of the owner or
operator of an eligible place of employment or food service
establishment, and section 12606 applies to the right granted to
employees under this subdivision.
(d) The legal smoking room is closed 1 hour or more before the
end of normal business hours of the eligible place of employment or
food service establishment to allow thorough ventilation before any
employee is required to enter the room to perform any cleaning or
other room maintenance.
Sec.
12606a. (1) A cigar bar in existence on the effective
date
of this section May 1, 2010 that meets all of the requirements
of this section is exempt from the smoking prohibition of section
12603 and may allow smoking on its premises. To qualify for the
exemption under this section, the person who owns or operates a
cigar bar shall file an affidavit with the department on or before
the
expiration of 30 days after the effective date of this section
May
31, 2010 and on January 31 of each year
after the effective
date
of this section beginning in
2011. The affidavit shall be
signed by the owner or operator of the cigar bar and shall certify
that
the cigar bar was in existence on the effective date of this
section
May 1, 2010 and that it meets all of the following
requirements:
(a)
In the 30-day period immediately preceding the effective
date
of this section May 1, 2010, the cigar bar generated 10% or
more of its total gross annual income from the on-site sale of
cigars and the rental of on-site humidors.
(b) For each calendar year after the calendar year in which
the first affidavit is filed under this subsection, the cigar bar
generates 10% or more of its total gross annual income from the on-
site sale of cigars and the rental of on-site humidors.
(c) The cigar bar is located on premises that are physically
separated from any areas of the same or adjacent establishment in
which smoking is prohibited under this part or part 129 and where
smoke does not infiltrate into those nonsmoking areas. As used in
this subdivision, "physically separated" means an area that is
enclosed on all sides by any combination of solid walls, windows,
or doors that extend from the floor to ceiling.
(d) The cigar bar has installed on its premises an on-site
humidor.
(e) The cigar bar prohibits entry to a person under the age of
18 during the time the cigar bar is open for business.
(f) The cigar bar allows only the smoking of cigars on the
premises that retail for over $1.00 per cigar.
(g) The cigar bar prohibits the smoking of all other tobacco
products.
(2)
A tobacco specialty retail store in existence on the
effective
date of this section May 1,
2010 that meets all of the
requirements of this section is exempt from the smoking prohibition
of section 12603 and may allow smoking on its premises. To qualify
for the exemption under this section, the person who owns or
operates a tobacco specialty retail store shall file an affidavit
with
the department on or before the expiration of 30 days after
the
effective date of this section May
31, 2010 and on January 31
of
each year after the effective date of this section beginning in
2011. The affidavit shall be signed by the owner or operator of the
tobacco specialty retail store and shall certify that the tobacco
specialty
retail store was in existence on the effective date of
this
section May 1, 2010 and that it meets all of the following
requirements:
(a)
In the 30-day period immediately preceding the filing of
the
effective date of this section May
1, 2010, the tobacco
specialty retail store generated 75% or more of its total gross
annual income from the on-site sale of tobacco products and smoking
paraphernalia.
(b) For each calendar year after the calendar year in which
the first affidavit is filed under this subsection, the tobacco
specialty retail store generated 75% or more of its total gross
annual income from the on-site sale of tobacco products and smoking
paraphernalia.
(c) The tobacco specialty retail store is located on premises
that are physically separated from any areas of the same or
adjacent establishments in which smoking is prohibited under this
part or part 129 and where smoke does not infiltrate into those
nonsmoking areas. As used in this subdivision, "physically
separated" means an area that is enclosed on all sides by any
combination of solid walls, windows, or doors that extend from the
floor to ceiling.
(d) The tobacco specialty retail store prohibits entry to a
person under the age of 18 during the time the tobacco specialty
retail store is open for business.
(3) A licensed club in existence on the effective date of the
amendatory act that added this sentence that meets all of the
requirements of this section is exempt from the smoking prohibition
of section 12603 and may allow smoking on its licensed premises. To
qualify for the exemption under this section, the licensed club
shall file an affidavit with the department on or before the
expiration of 30 days after the effective date of the amendatory
act that added this sentence and on January 31 beginning in the
immediately succeeding year. The affidavit shall be signed by the
principal officer of the licensed club and shall certify that the
licensed club was in existence on the effective date of the
amendatory act that added this sentence, that a recorded vote of a
majority of the members of the club during a general meeting held
not more than 30 days before the date of the affidavit approved the
club's filing for exemption from the smoking prohibition, and that
the licensed club meets all of the following requirements:
(a) The licensed club is located on premises that are
physically separated from any areas of the same or adjacent
establishments in which smoking is prohibited under this part or
part 129 and where smoke does not infiltrate into those nonsmoking
areas. As used in this subdivision, "physically separated" means an
area that is enclosed on all sides by any combination of solid
walls, windows, or doors that extend from the floor to ceiling.
(b) The licensed club prohibits entry to a person under the
age of 18 during the time the licensed club is open for business.
(c) The licensed club prohibits smoking on its licensed
premises when the club is open to the public or rented out or used
for an event that is not club-sponsored.
(4) (3)
The department may request
additional information from
a
cigar bar, or tobacco specialty retail store, or licensed club to
verify
that the cigar bar, or tobacco specialty retail store, or
licensed club meets the requirements of this section. A cigar bar,
or
tobacco specialty retail store, or licensed club shall comply
with requests from the department under this section.
(5) (4)
Except as otherwise provided in
this subsection, a
cigar
bar, or tobacco specialty retail store, or licensed club that
does not meet the requirements of this section or violates this
section
is not exempt from the smoking prohibition of section 12603
this act and shall immediately prohibit smoking on its premises. A
cigar
bar, or tobacco specialty retail store, or licensed club that
meets all of the requirements of this section other than filing the
affidavit
as required under subsection (1), or (2), or (3), retains
its exemption and may continue to allow smoking during the period
beginning on the date the affidavit is due and ending on the
expiration of 21 days after that date. However, if the affidavit
remains
unfiled after the 21-day grace period, the cigar bar, or
tobacco specialty retail store, or licensed club is not exempt from
the
smoking prohibition of section 12603 this act and shall
immediately
prohibit smoking on its premises. A cigar bar, or
tobacco specialty retail store, or licensed club that loses its
exemption under this subsection is not exempt from the smoking
prohibition
of section 12603 this act,
shall immediately prohibit
smoking on its premises, and may only again qualify for the
exemption under this section by filing an affidavit and meeting all
of
the requirements of subsection (1), or (2), or (3), as
applicable.
Sec.
12905. (1) An Except as
otherwise provided in this
section or section 12603a, an individual shall not smoke in a food
service establishment, and the person who owns, operates, manages,
or is in control of a food service establishment shall make
reasonable effort to prohibit individuals from smoking in a food
service establishment. This section does not apply to the outdoor
patio area of a food service establishment if both of the following
requirements are met:
(a) No food is served in the outdoor patio area. As used in
this subdivision, "food" does not include any beverage.
(b) Alcoholic liquor is allowed in the outdoor patio area
under an on-premises license for that establishment issued under
the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1101
to 436.2303.
(2) In addition to a food service establishment that provides
its own seating, subsection (1) applies to a food service
establishment or group of food service establishments that are
located in a shopping mall 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.
(3) 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 inspect each food service establishment that is subject
to this section. The inspecting entity shall determine compliance
with this section during each inspection.
(4) 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.
(5)
A Except as otherwise
provided in section 12603a, a food
service establishment that is subject to this section shall comply
with sections 12603(2) and 12606. It is an affirmative defense to a
prosecution or civil or administrative action for a violation of
this section that the owner, operator, manager, or person in
control of a food service establishment where smoking is prohibited
under this section made a good faith effort to prohibit smoking by
complying with section 12603(2). To assert the affirmative defense
under this subsection, the owner, operator, manager, or person
shall file a sworn affidavit setting forth his or her efforts to
prohibit smoking and his or her actions of compliance with section
12603(2).
(6) An individual who violates this part shall be directed to
comply with this part 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.
(7) As used in this section:
(a) "Food service establishment" means that term as defined in
section 1107 of the food law of 2000, 2000 PA 92, MCL 289.1107.
Food service establishment does not include a cigar bar or licensed
club that is exempt from the smoking prohibition under section
12606a.
(b) "Shopping mall" means a shopping center with stores facing
an enclosed mall.
(c) "Smoking" or "smoke" means that term as defined in section
12601.
Enacting section 1. This amendatory act takes effect July 1,
2011.