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 Senate, December 10, 2009
SENATE 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, 12606b, 12610, and 12914; 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" 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) (b)
"County medical care
facility" means that term as
defined in section 20104.
(f) (c)
"Educational facility"
means a building owned, leased,
or under the control of a public or private school system, college,
or university.
(g) (d)
"Food service
establishment" means a food service
establishment
as defined in section 12901 12905.
(h) (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.
(i) (f)
"Home for the aged" means
that term as defined in
section 20106.
(j) (g)
"Hospice" means that term
as defined in section 20106.
(k) (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.
(l) (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.
(m) "Motor vehicle" means that term as defined in section 33
of the Michigan vehicle code, 1949 PA 300, MCL 257.33.
(n) (k)
"Nursing home" means that
term as defined in section
20109.
(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.
(p) (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.
(q) (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 otherwise exempt under this part, a place of
employment.
(r) (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.
(s) "Smoking paraphernalia" means any equipment, apparatus, or
furnishing that is used in or necessary for the activity of
smoking.
(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.
(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.
(v) "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, an An
individual shall not smoke in a public place or at a meeting of a
public
body, except in a designated smoking area 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
House Bill No. 4377 as amended December 10, 2009
effort to prohibit individuals from smoking in a public place.
(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) 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.
House Bill No. 4377 as amended December 10, 2009
>>
(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. 12606. 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.
Sec. 12606a. (1) A cigar bar in existence on the effective
date of this section 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 and
on January 31 of each year after the effective date of this
section. 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 and that it meets all of the
following requirements:
(a) In the 30-day period immediately preceding the effective
date of this section, 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 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 and on January 31 of each year after
the effective date of this section. 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 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, 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
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) A casino that is in existence on the
effective date of this section may allow smoking in the gaming area
of the casino. Section 12603 applies to a casino that is not in
existence on the effective date of this section and to all areas of
a casino not part of the gaming area. A food service establishment
in or part of a casino is subject to section 12905. However, any
part of the gaming area where food and beverage is taken by patrons
for immediate consumption is not considered a food service
establishment under this part or part 129.
(2) A casino that is in existence on the effective date of
this section shall comply with section 12603(2) for all areas of
the casino not part of the gaming area. Section 12606 does not
apply with respect to employees working in the gaming area of a
casino where smoking is allowed under this section. However,
section 12606 does apply with respect to employees working in areas
other than the gaming area of a casino.
(3) As used in this section, "gaming area" means that term as
defined in R 432.1103 of the Michigan administrative code.
Sec. 12610. Notwithstanding section 12609 or any other
provision of this act to the contrary, the department shall not
promulgate rules to implement or administer the provisions of this
part that were added by the amendatory act that added this section.
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
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 pursuant to sections 2262(2) and 2263. In addition
to the civil fine authorized under section 12611, the department
may
enforce this part and the any
rules promulgated under this part
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. A local health department
authorized
to enforce this part and part 129 and the any rules
promulgated under this part shall enforce this part and part 129
and
the any rules promulgated under this part 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 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 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 An
individual shall not smoke in a food
service
establishment, shall be nonsmoking 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. 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.
(6)
The department or a local health department shall utilize
compliance
or noncompliance with this section or with 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).
(4) (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.
(5) A food service establishment 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) (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 that term
as defined in section 12601.
Sec. 12914. Notwithstanding any other provision of this act to
the contrary, the department shall not promulgate rules to
implement or administer the provisions of this part that were added
by the amendatory act that added this section.
Enacting section 1. (1) Sections 12604a, 12605, 12607, 12615,
12617, 21333, and 21733 of the public health code, 1978 PA 368, MCL
333.12604a, 333.12605, 333.12607, 333.12615, 333.12617, 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 May 1,
2010.
