Michigan no smoking law to take effect May 1

March 22, 2010
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On May 1 — roughly 40 days from now — House Bill 4377 will amend Michigan's Public Health Code to prohibit smoking in public places, in places of employment, and in food service establishments such as restaurants, cafeterias, food courts in shopping malls, and bars.

Exceptions will be made, however, for cigar bars and tobacco specialty retail stores, for gambling areas of casinos and for home offices.

The bill, sometimes referred to by names such as the "No Smoking Law" and the "Smoke-Free Law," will amend current Michigan laws dealing with smoking in public places. When the law takes effect, Michigan will become the 38th state to limit smoking in public places.

Under the new law:

  • A state or local governmental agency, or a person who owns or operates an establishment that is open to the public (i.e., a public place) cannot allow smoking there.

  • The definition of "public place" will be expanded to include a "place of employment," and that term will refer to an enclosed indoor area serving as the work area for one or more persons employed by a public or private employer. A "work area" will be defined as a site within a place of employment where one or more employees perform services for an employer. Food service establishments are excluded because they are covered under separate provisions of the new law.

  • A place of employment will not include an exempt cigar bar, a tobacco specialty retail store, or the gambling areas of a casino. Further, the term will not include a residence that also is used as an office for the owner or lessee.

  • A food service establishment cannot allow smoking by its employees and its customers.

Employers will be prohibited from taking retaliatory action against either an employee or an applicant for employment on the basis that he or she insisted on enforcement of the law prohibiting smoking.

Employers also will have to adopt a written nonsmoking policy, prominently post the policy, and disseminate the policy to employees and new hires. The policy will have to be supplied to the Department of Community Health upon request.

The written policy must indicate both that smoking is prohibited, and that employees or applicants exercising their rights are protected from retaliation.

A "No Smoking" sign must be clearly and conspicuously posted at entrances to and within every building or other area where smoking is prohibited. Ashtrays and other smoking paraphernalia must be removed from places where smoking is prohibited. Persons with control over no-smoking areas will be obligated to inform individuals found smoking that they are in violation of the law and subject to penalties.

Collective bargaining agreements with unionized employees allowing smoking will not be changed during the life of the contract. However, once the agreement expires, the new non-smoking law will take control, and the parties cannot negotiate provisions in conflict with those prohibitions.

Under certain specified criteria, cigar bars and tobacco specialty retail stores will be exempt from no-smoking requirements and could allow smoking on their premises. However, these establishments must file documentation as required by the Department of Public Health in order to claim an exemption.

In order to prevent establishments from changing their current identities to become cigar and tobacco specialty stores, certain historical sales data must be supplied and maintained in order to claim this exemption. No one under the age of 18 will be allowed entry to these establishments.

A casino may allow smoking but only on the floor space of the casino intended primarily for gambling games.

The new no-smoking law will be enforced by the Michigan Department of Community Health. Local health departments can assist in carrying out enforcement of the new law. Fines of up to $100 for a first violation, and up to $500 for a second or subsequent violation, can be imposed.

Violations can also result in an order requiring a food service provider to cease operations.

Individuals and entities alleging violations can also bring civil actions for appropriate injunctive relief.

Richard Fries (rdfries@varnumlaw.com) is a partner in the law firm of Varnum LLP.

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