House Introduced Bill 5195

HOUSE BILL No. 5195

December 9, 1999, Introduced by Reps. Ruth Johnson, Vear, Law, Gilbert, Hager, Hart,
Allen, Pappageorge, Jellema, Mortimer, Voorhees, Green, Scott, Jansen, Shulman and Cassis and
referred to the Committee on Health Policy.

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 12601 and 12909 (MCL 333.12601 and

333.12909), section 12601 as amended by 1988 PA 315 and

section 12909 as amended by 1982 PA 324, and by adding sections

12606 and 12606a; and to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1 Sec. 12601. (1) As used in this part:

2 (a) "Child caring institution" and "child care center" mean

3 those terms as defined in section 1 of Act No. 116 of the
Public

4 Acts of 1973, being section 722.111 of the Michigan Compiled

5 Laws 1973 PA 116, MCL 722.111.

6 (b) "County medical care facility" means that term as

7 defined in section 20104.

02692'99 a LBO
2

1 (c) "Educational facility" means a building owned, leased,

2 or under the control of a public or private school system,

3 college, or university.

4 (D) "FOOD ESTABLISHMENT" MEANS THE TYPE OF FOOD ESTABLISH-

5 MENT AS DEFINED IN THE MICHIGAN FOOD LAW OF 2000.

6 (E) (d) "Food service establishment" means
a THE TYPE OF

7 food service establishment as defined in section 12901
THE

8 MICHIGAN FOOD LAW OF 2000.

9 (F) (e) "Health facility" means a health
facility or

10 agency licensed under article 17, except a home for the aged,

11 nursing home, county medical care facility, hospice, or hospital

12 long-term care unit.

13 (G) (f) "Home for the aged" means that term
as defined in

14 section 20106.

15 (H) (g) "Hospice" means that term as defined
in section

16 20106.

17 (I) (h) "Hospital long-term care unit" means
that term as

18 defined in section 20106.

19 (J) (i) "Licensed premises" means any
portion of a build-

20 ing, structure, room, or enclosure in which alcoholic liquor may

21 be sold for consumption on the premises pursuant to a license

22 issued by the Michigan liquor control commission.

23 (K) (j) "Meeting" means a meeting as defined
in section 2

24 of the open meetings act, Act No. 267 of the Public Acts of

25 1976, being section 15.262 of the Michigan Compiled Laws
1976

26 PA 267, MCL 15.262.

02692'99 a
3

1 (l) (k) "Nursing home" means that
term as defined in

2 section 20109.

3 (M) (l) "Public body" means a public
body as defined in

4 section 2 of the open meetings act, Act No. 267 of the
Public

5 Acts of 1976 1976 PA 267, MCL 15.262.

6 (N) (m) "Public place", except as otherwise
provided in

7 subsection (2), means both of the following:

8 (i) An enclosed, indoor area owned or operated by a
state or

9 local governmental agency and used by the general public or serv-

10 ing as a place of work for public employees or a meeting place

11 for a public body, including an office, educational facility,

12 home for the aged, nursing home, county medical care facility,

13 hospice, hospital long-term care unit, auditorium, arena, meeting

14 room, or public conveyance.

15 (ii) An enclosed, indoor area which is not owned or
operated

16 by a state or local governmental agency, is used by the general

17 public, and is 1 of the following:

18 (A) An educational facility.

19 (B) A home for the aged, nursing home, county medical care

20 facility, hospice, or hospital long-term care unit.

21 (C) An auditorium.

22 (D) An arena.

23 (E) A theater.

24 (F) A museum.

25 (G) A concert hall.

26 (H) Any other facility during the period of its use for a

27 performance or exhibit of the arts.

02692'99 a
4

1 (O) (n) "Smoking" or "smoke" means the
carrying by a

2 person of a lighted cigar, cigarette, pipe, or other lighted

3 smoking device.

4 (2) Public place does not include a private, enclosed room

5 or office occupied exclusively by a smoker, even if the room or

6 enclosed office may be visited by a nonsmoker.

7 (3) In addition, article 1 contains general definitions and

8 principles of construction applicable to all articles of this

9 code.

10 SEC. 12606. (1) SUBJECT TO SUBSECTIONS (2) AND (3), THE

11 OWNER OR OPERATOR OF A FOOD ESTABLISHMENT PRIMARILY ENGAGED IN

12 THE RETAIL SALE OF COLD OR ROOM TEMPERATURE FOOD FOR HOME CON-

13 SUMPTION SHALL NOT PERMIT THE SMOKING OR BURNING OF TOBACCO ON

14 THE PREMISES.

15 (2) A SIGN INDICATING THAT SMOKING IS PROHIBITED IN THE

16 RETAIL GROCERY FOOD ESTABLISHMENT SHALL BE POSTED AT EACH PUBLIC

17 ENTRANCE TO THE FOOD ESTABLISHMENT.

18 (3) A FOOD ESTABLISHMENT PRIMARILY ENGAGED IN THE RETAIL

19 SALE OF COLD OR ROOM TEMPERATURE FOOD FOR HOME CONSUMPTION MAY

20 HAVE A DESIGNATED SMOKING AREA FOR EMPLOYEES AND THE PUBLIC. A

21 DESIGNATED EMPLOYEE AND PUBLIC SMOKING AREA SHALL BE ISOLATED

22 FROM THE RETAIL FOOD AREA AND SHALL BE POSTED.

23 (4) A PERSON, EXCEPT EMPLOYEES OR MEMBERS OF THE GENERAL

24 PUBLIC WHO SMOKE IN A DESIGNATED SMOKING AREA ESTABLISHED UNDER

25 SUBSECTION (3), SHALL NOT SMOKE OR BURN TOBACCO IN A RETAIL GRO-

26 CERY FOOD ESTABLISHMENT.

02692'99 a
5

1 (5) A PERSON WHO VIOLATES THIS SECTION IS GUILTY OF A

2 MISDEMEANOR PUNISHABLE BY A FINE NOT TO EXCEED $100.00.

3 (6) THIS SECTION SHALL BE ENFORCED BY THE MICHIGAN DEPART-

4 MENT OF AGRICULTURE OR OTHER GOVERNMENTAL ENTITY AS DELEGATED BY

5 THE MICHIGAN FOOD LAW OF 2000.

6 SEC. 12606A. (1) EXCEPT AS OTHERWISE PROVIDED IN THIS SEC-

7 TION, ALL PUBLIC AREAS OF A FOOD SERVICE ESTABLISHMENT SHALL BE

8 NONSMOKING. AS USED IN THIS SUBSECTION, "PUBLIC AREA" INCLUDES A

9 BATHROOM, A COATROOM, AND AN ENTRANCE OR OTHER AREA USED BY A

10 PATRON WHEN NOT SEATED AT A FOOD SERVICE TABLE OR COUNTER.

11 PUBLIC AREA DOES NOT INCLUDE THE LOBBY, WAITING ROOM, HALLWAYS,

12 AND LOUNGE AREAS OF A FOOD SERVICE ESTABLISHMENT, BUT THESE AREAS

13 ARE NOT REQUIRED TO BE DESIGNATED AS SMOKING AREAS.

14 (2) SUBJECT TO SUBSECTION (3), A FOOD SERVICE ESTABLISHMENT,

15 WHETHER OR NOT IT IS OWNED AND OPERATED BY A PRIVATE CLUB, WITH A

16 SEATING CAPACITY OF FEWER THAN 50 AND A FOOD SERVICE ESTABLISH-

17 MENT THAT IS OWNED AND OPERATED BY A PRIVATE CLUB MAY DESIGNATE

18 UP TO 75% OF ITS SEATING CAPACITY AS SEATING FOR SMOKERS. A FOOD

19 SERVICE ESTABLISHMENT WITH A SEATING CAPACITY OF 50 OR MORE THAT

20 IS NOT OWNED OR OPERATED BY A PRIVATE CLUB MAY DESIGNATE UP TO

21 50% OF ITS SEATING CAPACITY AS SEATING FOR SMOKERS.

22 (3) A FOOD SERVICE ESTABLISHMENT THAT DESIGNATES SEATING FOR

23 SMOKERS SHALL CLEARLY IDENTIFY THE SEATS FOR NONSMOKERS AS NON-

24 SMOKING, PLACE THE SEATS FOR NONSMOKERS IN CLOSE PROXIMITY TO

25 EACH OTHER, AND LOCATE THE SEATS FOR NONSMOKERS SO AS NOT TO DIS-

26 CRIMINATE AGAINST NONSMOKERS. A FOOD SERVICE ESTABLISHMENT SHALL

27 NOT USE THE DEFINITION OF SEATING CAPACITY AND THE EXEMPTION FROM

02692'99 a
6

1 THAT DEFINITION TO INCREASE THE AMOUNT OF SEATING FOR SMOKERS

2 ABOVE 75%.

3 (4) IN ADDITION TO A FOOD SERVICE ESTABLISHMENT THAT PRO-

4 VIDES ITS OWN SEATING, SUBSECTIONS (1), (2), AND (3) ALSO APPLY

5 TO A FOOD SERVICE ESTABLISHMENT OR GROUP OF FOOD SERVICE ESTAB-

6 LISHMENTS THAT ARE LOCATED IN A SHOPPING MALL WHERE THE SEATING

7 FOR THE FOOD SERVICE ESTABLISHMENT OR GROUP OF FOOD SERVICE

8 ESTABLISHMENTS IS PROVIDED OR MAINTAINED, OR BOTH, BY THE PERSON

9 WHO OWNS OR OPERATES THE SHOPPING MALL. AS USED IN THIS SUBSEC-

10 TION, "SHOPPING MALL" MEANS A SHOPPING CENTER WITH STORES FACING

11 AN ENCLOSED MALL.

12 (5) THE DIRECTOR SHALL INSPECT EACH FOOD SERVICE ESTABLISH-

13 MENT THAT IS SUBJECT TO THIS SECTION. THE INSPECTING ENTITY

14 SHALL DETERMINE COMPLIANCE WITH THIS SECTION DURING EACH

15 INSPECTION.

16 (6) THE DEPARTMENT OR A LOCAL HEALTH DEPARTMENT SHALL UTI-

17 LIZE COMPLIANCE OR NONCOMPLIANCE WITH THIS SECTION OR WITH RULES

18 PROMULGATED TO IMPLEMENT THIS SECTION AS CRITERIA IN THE DETERMI-

19 NATION OF WHETHER TO DENY, SUSPEND, LIMIT, OR REVOKE A LICENSE

20 PURSUANT TO SECTION 4127 OF THE MICHIGAN FOOD LAW OF 2000.

21 (7) WITHIN 5 DAYS OF A WRITTEN COMPLAINT OF VIOLATION OF

22 THIS SECTION, A LOCAL HEALTH DEPARTMENT SHALL INVESTIGATE THE

23 COMPLAINT TO DETERMINE COMPLIANCE. IF A VIOLATION OF THIS SEC-

24 TION IS IDENTIFIED AND NOT CORRECTED AS ORDERED BY THE LOCAL

25 HEALTH DEPARTMENT OR DEPARTMENT WITHIN 2 DAYS AFTER RECEIPT OF

26 THE ORDER BY THE FOOD SERVICE ESTABLISHMENT, THE DIRECTOR MAY

02692'99 a
7

1 ISSUE AN ORDER TO CEASE FOOD SERVICE OPERATIONS UNTIL COMPLIANCE

2 WITH THIS SECTION IS ACHIEVED.

3 (8) THIS SECTION DOES NOT APPLY TO A PRIVATE FACILITY THAT

4 IS SERVICED BY A CATERING KITCHEN OR TO A SEPARATE ROOM IN A FOOD

5 SERVICE ESTABLISHMENT THAT IS USED FOR PRIVATE BANQUETS. THIS

6 SECTION DOES NOT APPLY TO A FOOD SERVICE ESTABLISHMENT THAT IS

7 OWNED AND OPERATED BY A FRATERNAL ORGANIZATION, IF SERVICE IS

8 LIMITED TO MEMBERS OF THE FRATERNAL ORGANIZATION AND THEIR

9 GUESTS.

10 (9) THIS SECTION SHALL ONLY BE ENFORCED BY THE LOCAL HEALTH

11 DEPARTMENT HAVING JURISDICTION.

12 (10) AS USED IN THIS SECTION:

13 (A) "BAR" MEANS THAT TERM AS DEFINED IN SECTION 105 OF THE

14 MICHIGAN LIQUOR CONTROL CODE OF 1998, 1998 PA 58, MCL 436.1105.

15 (B) "ROOM" MEANS AN AREA THAT IS PHYSICALLY DISTINCT FROM

16 THE MAIN DINING AREA OF A FOOD SERVICE ESTABLISHMENT AND FROM

17 WHICH SMOKE CANNOT PASS INTO THE MAIN DINING AREA.

18 (C) "SEATING CAPACITY" MEANS THE ACTUAL NUMBER OF SEATS OR

19 PATRONS IN A FOOD SERVICE ESTABLISHMENT. SEATING CAPACITY DOES

20 NOT INCLUDE SEATS LOCATED AT A BAR OR SEATS AT TABLES THAT ARE

21 LOCATED ADJACENT TO A BAR, IF MEALS ARE NOT SERVED AT THOSE

22 TABLES.

23 (D) "SMOKING" MEANS THE CARRYING BY AN INDIVIDUAL OF A

24 LIGHTED CIGAR, CIGARETTE, OR OTHER LIGHTED SMOKING DEVICE.

25 Sec. 12909. (1) The department shall promulgate rules
to

26 prescribe criteria for programs by local health departments
and

27 procedures for the administration and enforcement of this
part.

02692'99 a
8

1 The department may promulgate rules to prescribe minimum

2 standards of sanitation for the protection of the public
health

3 and otherwise provide for the implementation of this part.
The

4 department in promulgating these rules shall seek the advice
and

5 counsel of local health departments and the food service

6 industry.

7 (2) The manufacturing, processing, or freezing of
frozen

8 desserts as defined in section 2 of the frozen desserts act
of

9 1968, Act No. 298 of the Public Acts of 1968, being section

10 288.322 of the Michigan Compiled Laws, in food service
establish-

11 ments licensed pursuant to this part, which frozen desserts
are

12 intended only for use in the soft form by patrons, guests,

13 patients, or employees, shall comply with the standards of
this

14 part and rules promulgated pursuant to this part.

15 (3) Except as otherwise specifically defined or
described in

16 this part, the provisions of the 1976 recommendations of the

17 United States food and drug administration for a food
service

18 sanitation manual, including a model food service sanitation

19 ordinance and the unabridged form of "the vending of food
and

20 beverages--a sanitation ordinance and code--1965
recommendations

21 of the public health service" are adopted, except any
reference

22 in these ordinances and codes to adulteration, misbranding,

23 advertising, and enforcement procedures. Upon written
request

24 from a local health department, the department may recognize
cer-

25 tain enforcement procedures other than those contained in
this

26 part and rules promulgated under this part, when the
procedures

27 will result in enforcement which is equivalent in
effectiveness

02692'99 a
9

1 and have been legally adopted by the local department of
health.

2 The words "municipality of . . ." as used in the
recommenda-

3 tions for a model food service sanitation ordinance shall
mean

4 the state and the term "regulatory authority" shall mean the

5 local health officer in charge of a local health department
or

6 the local health officer's designated representative. This
sub-

7 section shall expire September 30, 1981 or when the rules
promul-

8 gated under subsection (1) are promulgated, whichever is
sooner.

9 (4) The design, construction, and equipment of a food
serv-

10 ice establishment or vending machine which was in place
before

11 the effective date of standards developed or adopted under
this

12 part shall be considered to be in compliance with this part
if

13 they are in compliance with the standards in effect on the
date

14 they were installed and if they are in good repair and are
being

15 maintained in a sanitary condition.

16 (5) A food service sanitation program which
meets the

17 requirements of this part is a required service under part 24.

18 Enacting section 1. This amendatory act takes effect 6

19 months after the date of its enactment.

20 Enacting section 2. Sections 12901, 12902, 12903, 12904,

21 12905, 12905a, 12906, 12907, 12908, 12910, 12911, 12912, 12913,

22 12915, 12916, 12921, and 12922 of the public health code, 1978

23 PA 368, MCL 333.12901, 333.12902, 333.12903, 333.12904,

24 333.12905, 333.12905a, 333.12906, 333.12907, 333.12908,

25 333.12910, 333.12911, 333.12912, 333.12913, 333.12915, 333.12916,

26 333.12921, and 333.12922, are repealed 6 months after the date of

27 enactment of this amendatory act.

02692'99 a
10

1 Enacting section 3. This amendatory act does not take

2 effect unless Senate Bill No. ______ or House Bill No. 5196

3 (request no. 02692'99) of the 90th Legislature is enacted into

4 law.

02692'99 a Final page. LBO