January 28, 2009, Introduced by Senators GEORGE, BASHAM, BIRKHOLZ, BROWN, GLEASON, ANDERSON and SWITALSKI and referred to the Committee on Government Operations and Reform.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending the heading of part 129 and sections 12601 and 12905
(MCL 333.12601 and 333.12905), section 12601 as amended by 1988 PA
315 and section 12905 as amended by 1993 PA 242, and by adding
section 12603a; 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
serving as the work area 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 of a
lighted cigar, cigarette, pipe, or other lighted smoking device.
(o) "Work area" means a site within a place of employment at
which 1 or more employees are routinely assigned to 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. 12603a. (1) An individual shall not smoke in a public
place or at a meeting of a public body.
(2) The state or local governmental agency or the person who
owns or operates a public place shall post signs that state that
smoking in that public place is prohibited.
(3) A person who violates subsection (1) or a state or local
governmental agency or the person who owns or operates a public
place who violates subsection (2) 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.
(4) The department shall enforce this part and rules
promulgated under this part pursuant to sections 2262(2) and 2263.
In addition to the civil fine authorized under subsection (3), the
department may enforce this part and the rules promulgated under
this part through an action commenced pursuant to section 2255 or
any other appropriate action authorized by law. Pursuant to section
2235, the department may authorize a local health department to
enforce this part and the rules promulgated under this part. A
local health department authorized to enforce this part and the
rules promulgated under this part shall enforce this part and the
rules promulgated under this part pursuant to sections 2461(2) and
2462. In addition to the civil fine authorized under subsection
(3), a local health department may enforce this part and the rules
promulgated under this part through an action commenced pursuant to
section 2465 or any other appropriate action authorized by law. In
addition to any other enforcement action authorized by law, a
person alleging a violation of this part may bring a civil action
for appropriate injunctive relief, if the person has used the
public place, child caring institution, child care center, health
facility, or private practice office of an individual who is
licensed under article 15 within 60 days before the civil action is
filed. 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.
(5) The director shall report biennially to the legislature on
the effect and enforcement of this part. The report shall include,
at a minimum, compliance with subsection (2). Upon request of the
department, the director of the department of management and budget
annually shall report to the department, at a minimum, a list of
each public place owned or operated by the state and its compliance
with subsection (2).
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 food service
establishment shall be
nonsmoking
not allow smoking and a
person shall not smoke in a food
service
establishment. 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 and 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) 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 signage. 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.
(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.
Enacting section 1. (1) Sections 12603, 12604a, 12605, 12607,
12611, 12613, 12614, 12615, 12617, 12909, 12915, 21333, and 21733
of the public health code, 1978 PA 368, MCL 333.12603, 333.12604a,
333.12605, 333.12607, 333.12611, 333.12613, 333.12614, 333.12615,
333.12617, 333.12909, 333.12915, 333.21333, and 333.21733, are
repealed.
(2) Section 6127 of the food law of 2000, 2000 PA 92, MCL
289.6127, is repealed.