HOUSE BILL No. 4624

 

April 19, 2005, Introduced by Reps. Vander Veen, Clack, Anderson, Meisner, Williams and Newell 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, and by amending the heading to part 129; and to repeal acts

 

and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

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 food service establishment shall  be

 

nonsmoking  not allow smoking and a person shall not smoke 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 aby 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, or a representative of a local health

 

department to which the director, an authorized representative of

 

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 noncompliance with this section or with rules

 

promulgated to implement this section as criteria in the

 

determination  recommendation to the department of agriculture 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) 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 signage. 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.

 

     (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.

 

     Enacting section 1. Sections 12909 and 12915 of the public

 

health code, 1978 PA 368, MCL 333.12909 and 333.12915, are

 

repealed.