HOUSE BILL No. 4536

 

April 11, 2013, 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 that term 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 that term 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 that term 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 must 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,

 

2013.