Bill Text: MI HB4196 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Health; smoking; smoke-free commercial and public buildings; require. Amends headings of pts. 126 & 129 & secs. 12601, 12603, 12611, 12613, 12614, 12905 & 12915 of 1978 PA 368 (MCL 333.12601 et seq.); adds sec. 12606 & repeals secs. 12604a, 12605, 12607, 12615, 12617, 12909, 21333 & 21733 of 1978 PA 368 (MCL 333.12604a et seq.) & sec. 6127 of 2000 PA 92 (MCL 289.6127).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-02-10 - Printed Bill Filed 02/06/2009 [HB4196 Detail]

Download: Michigan-2009-HB4196-Introduced.html

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HOUSE BILL No. 4196

 

February 5, 2009, Introduced by Rep. Slavens and referred to the Committee on Regulatory Reform.

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending the headings of parts 126 and 129 and sections 12601,

 

12603, 12611, 12613, 12614, 12905, and 12915 (MCL 333.12601,

 

333.12603, 333.12611, 333.12613, 333.12614, 333.12905, and

 

333.12915), 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, section 12905 as amended by 1993 PA 242,

 

and section 12915 as amended by 1982 PA 526, and by adding section

 

12606; and to repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

PART 126. SMOKING IN PUBLIC PLACES MICHIGAN CLEAN INDOOR AIR ACT

 

     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.

 

     (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.

 

     (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.

 

     (k) "Nursing home" means that term as defined in section

 

20109.

 

     (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.

 

     (m) "Public place", except as otherwise provided in subsection

 

(2), means both 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 is not owned or operated by

 

a state or local governmental agency, is used by the general

 

public, and is 1 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.

 

     (b) "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.

 

     (c) "Commercial or public building" means the interior space

 

of any nonresidential building and includes, but is not limited to,

 

the following:

 

     (i) School buildings.

 

     (ii) Industrial and office buildings.

 

     (iii) Government-owned buildings.

 

     (iv) Colleges and universities.

 

     (v) Museums.

 

     (vi) Airports.

 

     (vii) Health facilities and agencies.

 

     (viii) Churches.

 

     (ix) Preschools.

 

     (x) Stores.

 

     (xi) Warehouses.

 

     (xii) Factories.

 

     (xiii) Hotels and motels.

 

     (d) (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.

 

     (e) "Smoking paraphernalia" means any equipment, apparatus, or

 

furnishing that is used in or necessary for the activity of

 

smoking.

 

     (f) "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.

 

     (g) "Tobacco specialty retail store" means an establishment

 

that is not required to be licensed as a food service

 

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.

 

     (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 in

 

this part, a state or local governmental agency or the person who

 

owns or operates a commercial or public building shall not allow

 

smoking in the commercial or public building. An individual shall

 

not smoke in a public place or at a meeting of a public body,

 

except in a designated smoking area commercial or public building.

 

     (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 commercial or public building where smoking is

 

prohibited under this section. The owner, operator, manager, or

 

person having control of the commercial or public building shall

 

post the signs. The owner, operator, manager, or person having

 

control of the commercial or public building 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 commercial or public building shall

 

inform persons smoking in violation of this act that they are in

 

violation of state law and subject to penalties.

 

     Sec. 12606. (1) A cigar bar 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

 

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, 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

 

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, not

 

including any sales of tobacco products from vending machines.

 

     (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,

 

not including any sales of tobacco products from vending machines.

 

     (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.

 

     (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, 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 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) The information submitted by a cigar bar or a tobacco

 

specialty retail store to the department under this section is

 

exempt from disclosure under the freedom of information act, 1976

 

PA 442, MCL 15.231 to 15.246.

 

     (5) 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. 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.

 

     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, child

 

care center, health facility, or private practice office of an

 

individual who is licensed under article 15 entered the commercial

 

or public building 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 comply with part 126. 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%.

 

     (4) In addition to a food service establishment that provides

 

its own seating, subsections (1), (2), and (3) also apply part 126

 

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.

 

     (2) (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.

 

     (3) (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.

 

     (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) (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 a cigar bar or tobacco

 

specialty retail store exempt under section 12606.

 

     (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.

 

     Sec. 12915. A county, city, village, or township shall not

 

regulate those aspects of food service establishments or vending

 

machines which are subject to regulation under this part except to

 

the extent necessary to carry out the responsibility of a local

 

health department pursuant to sections 12906 and 12908 may adopt

 

and enforce local codes, ordinances, or regulations that comply

 

with at least the minimum applicable standards set forth in this

 

part. This part shall not relieve the applicant for a license or a

 

licensee from responsibility for securing a local permit or

 

complying with applicable local codes, regulations, or ordinances

 

not that are in conflict with addition to this part.

 

     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.