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.