September 16, 2014, Introduced by Rep. McMillin and referred to the Committee on Regulatory Reform.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 12601, 12603, 12606a, and 12905 (MCL
333.12601, 333.12603, 333.12606a, and 333.12905), sections 12601,
12603, and 12905 as amended and section 12606a as added by 2009 PA
188.
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) "Child caring institution" and "child care center" mean
those terms as defined in section 1 of 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) "County medical care facility" means that term as defined
in section 20104.
(f) "Educational facility" means a building owned, leased, or
under the control of a public or private school system, college, or
university.
(g)
"Food service establishment" means a food service
establishment
that term as defined in section 12905.
(h) "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) "Home for the aged" means that term as defined in section
20106.
(j) "Hospice" means that term as defined in section 20106.
(k) "Hospital long-term care unit" means that term as defined
in section 20106.
(l) "Meeting" means a meeting that term as defined in section 2
of the open meetings act, 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) "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)
"Public body" means a public body that term as defined in
section 2 of the open meetings act, 1976 PA 267, MCL 15.262.
(q)
"Public place" , except as otherwise provided in
subsection
(2), means 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 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 that is not owned or operated by
a state or local governmental agency, is used by the general
public, and is 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) "Smoking" or "smoke" means the burning of a lighted cigar,
cigarette, pipe, or any other 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) In addition, article 1 contains general definitions and
principles of construction applicable to all articles of this code.
Sec.
12603. (1) An Except as
otherwise provided in this part,
an individual shall not smoke in a public place or at a meeting of
a public body, 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 effort to prohibit individuals from
smoking in a public place.
(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.
(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.
12606a. (1) A cigar bar in existence on the effective
date
of this section May 1, 2010 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
May
31, 2010 and on January 31 of each year
after the effective
date
of this section. beginning in
2011. 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
May 1, 2010 and that it meets all of the following
requirements:
(a)
In the 30-day period immediately preceding the effective
date
of this section, May 1, 2010, 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 May 1,
2010 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 May
31, 2010 and on January 31
of
each year after the effective date of this section. beginning in
2011. Beginning in 2014, a filing fee of $500.00 shall accompany
the affidavit. The department shall use the filing fee to cover the
cost of enforcing this subsection. 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 May 1, 2010 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, May
1, 2010, 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 or, beginning in 2014,
10% 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.
12905. (1) An Except as
otherwise provided in this
section, an individual shall not smoke in a food service
establishment, 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.
(2) In addition to a food service establishment that provides
its own seating, subsection (1) applies to a food service
establishment or group of food service establishments that are
located in a shopping mall 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.
(3) 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 inspect each food service establishment that is subject
to this section. The inspecting entity shall determine compliance
with this section during each inspection.
(4) 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.
(5) A food service establishment that is subject to this
section 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) As used in this section:
(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 that is exempt from the smoking prohibition
under section 12606a.
(b) "Shopping mall" means a shopping center with stores facing
an enclosed mall.
(c) "Smoking" or "smoke" means that term as defined in section
12601.