September 9, 2004, Introduced by Reps. Daniels, Gieleghem and Zelenko and referred to the Committee on Commerce.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 12905 (MCL 333.12905), as amended by 1993 PA
242.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 12905. (1) Except as otherwise provided in this
2 section, all public areas of a food service establishment shall
3 be nonsmoking. As used in this subsection, "public area"
4 includes, but is not limited to, a bathroom, a coatroom, and an
5 entrance or other area used by a patron when not seated at a food
6 service table or counter. Public area does not include the
7 lobby, waiting room, hallways, and lounge areas of a food service
8 establishment, but these areas are not required to be designated
9 as smoking areas.
10 (2) Subject to subsection (3), a food service establishment
1 with a seating capacity of fewer than 50, whether or not it is
2 owned and operated by a private club, and a food service
3 establishment that is owned and operated by a private club may
4 designate up to 75% of its seating capacity as seating for
5 smokers. A food service establishment with a seating capacity of
6 50 or more that is not owned or operated by a private club may
7 designate up to 50% of its seating capacity as seating for
8 smokers. A food service establishment that designates seating
9 for smokers shall clearly identify the seats for nonsmokers as
10 nonsmoking, place the seats for nonsmokers in close proximity to
11 each other, and locate the seats for nonsmokers so as not to
12 discriminate against nonsmokers.
13 (3) A food service establishment shall not use the definition
14 of seating capacity and the exemption from that definition set
15 forth in subsection (9)(c)
(10)(d) to increase the amount of
16 seating for smokers above 75%.
17 (4) In addition to a food service establishment that provides
18 its own seating, subsections (1), (2), and (3) also apply to a
19 food service establishment or group of food service
20 establishments that are located in a shopping mall where the
21 seating for the food service establishment or group of food
22 service establishments is provided or maintained, or both, by the
23 person who owns or operates the shopping mall. As used in this
24 subsection, "shopping mall" means a shopping center with stores
25 facing an enclosed mall.
26 (5) A food service establishment shall not seat a person less
27 than 18 years of age in an area designated as a smoking area
1 under subsection (2). In the case of a willful violation of this
2 subsection, a food service establishment is liable for a civil
3 fine of $1,000.00 for a first violation and is liable for a civil
4 fine of $6,000.00 for a second or subsequent violation. After
5 deducting the costs of bringing the action, the department shall
6 allocate the remainder of the civil fine to programs dealing with
7 the cessation of smoking.
8 (6) (5) The
director, an authorized representative of the
9 director, or a representative of a local health department to
10 which the director has delegated responsibility for enforcement
11 of this part shall ,
in accordance with R 325.25902 of the
12 Michigan
administrative code, inspect each
food service
13 establishment that is subject to this section. The inspecting
14 entity shall determine compliance with this section during each
15 inspection.
16 (7) (6) The
department or a local health department shall
17 utilize compliance or noncompliance with this section or with
18 rules promulgated to implement this section as criteria in the
19 determination of whether to deny, suspend, limit, or revoke a
20 license. pursuant
to section 12907(1).
21 (8) (7) Within
5 days after receipt of a written complaint
22 of violation of this section, a local health department shall
23 investigate the complaint to determine compliance. If a
24 violation of this section is identified and not corrected as
25 ordered by the local health department within 2 days after
26 receipt of the order by the food service establishment, the local
27 health officer may issue an order to cease food service
1 operations until compliance with this section is achieved.
2 (9) (8) This
section does not apply to a private facility
3 that is serviced by a catering kitchen or to a separate room in a
4 food service establishment that is used for private banquets.
5 This section does not apply to a food service establishment that
6 is owned and operated by a fraternal organization, if service is
7 limited to members of the fraternal organization and their
8 guests.
9 (10) (9) As
used in this section:
10 (a) "Bar"
means that term as defined in section 2a 105 of
11 the Michigan liquor
control act, Act No. 8 of the Public Acts of
12 the Extra Session of
1933, being section 436.2a of the Michigan
13 Compiled Laws code of 1998, 1998 PA 58, MCL 436.1105.
14 (b) "Food service establishment" means that term as defined
15 in section 1107 of the food law of 2000, 2000 PA 92, MCL
16 289.1107.
17 (c) (b) "Room"
means an area that is physically distinct
18 from the main dining area of a food service establishment and
19 from which smoke cannot pass into the main dining area.
20 (d) (c) "Seating
capacity" means the actual number of seats
21 for patrons in a food service establishment. Seating capacity
22 does not include seats located at a bar or seats at tables that
23 are located adjacent to a bar, if meals are not served at those
24 tables.
25 (e) (d) "Smoking"
means the carrying by an individual of a
26 lighted cigar, cigarette, or other lighted smoking device.