HOUSE BILL No. 4447

 

March 16, 2011, Introduced by Reps. Melton, Geiss and Haugh and referred to the Committee on Regulatory Reform.

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending section 12905 (MCL 333.12905), as amended by 2009 PA

 

188.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

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

 

section, 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.

 

     (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 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.

 

     (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.