HOUSE BILL No. 4668

April 26, 2005, Introduced by Reps. Lemmons, Jr., Lemmons, III, Sheltrown, Leland, Alma Smith and Clack and referred to the Committee on Commerce.

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending sections 12905 and 12922 (MCL 333.12905 and 333.12922),

 

section 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  A food service establishment shall  be

 

nonsmoking  not allow smoking and a person shall not smoke in a

 

public area of 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)  (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) "Public area" means any area within a food service

 

establishment in which a person less than 18 years of age is

 

allowed to be present and includes, but is not limited to, a

 

bathroom, coatroom, entrance or other area used by patrons when not

 

seated, and the dining and lounge areas of a food service

 

establishment.

 

     (c) "Shopping mall" means a shopping center with stores facing

 

an enclosed mall.

 

     (d) "Smoking" means the carrying by an individual of a lighted

 

cigar, cigarette, or other lighted smoking device.

 

     Sec. 12922. A person who violates this part or a rule

 

promulgated under this part is  guilty of a misdemeanor  liable for


 

a civil fine of not more than $2,000.00 for each violation.

 

     Enacting section 1. Sections 12909 and 12915 of the public

 

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

 

repealed.

 

     Enacting section 2. This amendatory act does not take effect

 

unless Senate Bill No.____ or House Bill No.____ (request no.

 

02687'05) of the 93rd Legislature is enacted into law.