Bill Text: MI HB4377 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Health; smoking; smoke-free workplace and food service establishments; require. Amends heading of pt. 129 & secs. 12601, 12603, 12611, 12613, 12614 & 12905 of 1978 PA 368 (MCL 333.12601 et seq.); adds secs. 12606, 12606a, 12606b, 12610 & 12914 & repeals secs. 12604a, 12605, 12607, 12615, 12617, 21333 & 21733 of 1978 PA 368 (MCL 333.12604a et seq.) & sec. 6127 of 2000 PA 92 (MCL 289.6127).
Spectrum: Moderate Partisan Bill (Democrat 41-13)
Status: (Passed) 2009-12-18 - Assigned Pa 188'09 [HB4377 Detail]
Download: Michigan-2009-HB4377-Engrossed.html
HB-4377, As Passed House, May 26, 2009
SUBSTITUTE FOR
HOUSE BILL NO. 4377
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, and 12905 (MCL 333.12601, 333.12603,
333.12611, 333.12613, 333.12614, and 333.12905), 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, and
section 12905 as amended by 1993 PA 242, and by adding sections
12606, 12606a, and 12606b; 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) "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) (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.
(c) "Cigar bar" means an establishment or area within an
establishment that is open to the public and is designated for the
smoking of tobacco products, purchased on the premises or
elsewhere.
(d) (b)
"County medical care
facility" means that term as
defined in section 20104.
(e) (c)
"Educational facility"
means a building owned, leased,
or under the control of a public or private school system, college,
or university.
(f) (d)
"Food service
establishment" means a food service
establishment
as defined in section 12901 12905.
(g) (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.
(h) (f)
"Home for the aged" means
that term as defined in
section 20106.
(i) (g)
"Hospice" means that term
as defined in section 20106.
(j) (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.
(k) (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.
(l) (k)
"Nursing home" means that
term as defined in section
20109.
(m) "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 cigar bar or tobacco specialty retail store exempt under
section 12606a.
(iii) A food service establishment that is subject to section
12905.
(iv) A casino, but only to the extent that the casino is exempt
under section 12606b.
(n) (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.
(o) (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) Unless exempt under section 12606a, a cigar bar or a
tobacco specialty retail store.
(iv) A place of employment.
(v) Except to the extent that it is exempt under section
12606b, a casino.
(p) (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.
(q) "Smoking paraphernalia" means any equipment, apparatus, or
furnishing that is used in or necessary for the activity of
smoking.
(r) "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.
(s) "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.
(t) "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.
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 this section or
section 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 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. 12606a. (1) A cigar bar that meets all of the
House Bill 4377 (H-3) as amended May 26, 2009
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 if the cigar bar is in existence on the effective date
of this section or 30 days or more before he or she wishes to use
this exemption [IF the cigar bar is in existence on or before December
31, 2009], and on January 31 of each year after the effective
date of the exemption. 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 or before December 31, 2009 and that it]
meets all of the following requirements:
(a) In the 30-day period immediately preceding the filing of
the first affidavit under this subsection, the cigar bar generated
10% or more of its total gross annual income from the on-site sale
of tobacco products 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 tobacco products 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
House Bill 4377 (H-3) as amended May 26, 2009
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.
(2) A tobacco specialty retail store 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 the exemption if the tobacco specialty retail
store is in existence on the effective date of this section or 30
days or more before he or she wishes to use this exemption [if the
tobacco specialty retail store is in existence on or before December 31,
2009], and on
January 31 of each year after the effective date of the exemption.
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 or before December 31, 2009
and that it] meets all of the following requirements:
(a) In the 30-day period immediately preceding the filing of
the first affidavit 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.
(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) The department may request additional information from a
cigar bar or tobacco specialty retail store to verify that the
cigar bar or tobacco specialty retail store meets the requirements
of this section. A cigar bar or tobacco specialty retail store
shall comply with requests from the department under this section.
(4) Except as otherwise provided in this subsection, a cigar
bar or tobacco specialty retail store that does not meet the
requirements of this section or violates this section is not exempt
from the smoking prohibition of section 12603 and shall immediately
prohibit smoking on its premises. A cigar bar or tobacco specialty
retail store that meets all of the requirements of this section
other than filing the affidavit as required under subsection (1) or
(2), 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 is not exempt from the
House Bill 4377 (H-3) as amended May 26, 2009
smoking prohibition of section 12603 and shall immediately prohibit
smoking on its premises. A cigar bar or tobacco specialty retail
store that loses its exemption under this subsection is not exempt
from the smoking prohibition of section 12603, 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), as applicable.
Sec. 12606b. (1) Except as otherwise provided in this section,
a casino may allow smoking on the floor space of the casino that is
intended primarily for playing or conducting gambling games.
Determination of what constitutes floor space shall be made in a
manner acceptable to the [Michigan gaming control board.
]
(2) Smoking is prohibited on the floor space of a casino where
gambling games are conducted or played under either or both of the
following circumstances:
(a) This state negotiates an agreement with the federally
recognized Indian tribes that conduct gambling games in this state
to prohibit smoking in areas where gambling games are conducted
pursuant to an Indian gaming compact or other appropriate
agreement.
(b) [All of the] federally recognized Indian tribes that
conduct gambling games in [the lower peninsula of] this state voluntarily
prohibit smoking
in areas of the tribal casinos where gambling games are conducted
or played, as determined by the records of the Michigan gaming
control board.
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. A person who makes a false statement in an
affidavit under this part is guilty of perjury under section 423 of
the Michigan penal code, 1931 PA 328, MCL 750.423.
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.
Food service establishment does not include an establishment
described in section 12601(m)(ii) or (iv).
(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.
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.
Enacting section 2. This amendatory act takes effect 30 days
after the date it is enacted into law.
