|
Michigan Smoking Ban: What It Means for Business
Michigan’s smoking ban law is effective May 1, 2010. Many business owners have questions about what the law requires and what exemptions are available. This article is intended to highlight some important aspects of the new law.
Smoking Prohibition. The smoking ban law broadly prohibits individuals from smoking at food service establishments and other enclosed, indoor public places. It requires persons who own, operate, manage, or control a food service establishment or other public place to make reasonable efforts to prohibit smoking in their establishment. The owner, operator, manager, etc., must: (1) post no smoking signs and symbols; (2) remove all ashtrays and other smoking paraphernalia; (3) inform individuals who are smoking within their establishment that they are in violation of state law and subject to penalties; (4) ask these individuals to refrain from smoking; (5) if applicable, refuse to serve individuals in violation of the law; and (6) if the individual continues to smoke, ask the individual to leave. The smoking ban law, however, contains three important exemptions that allow smoking in certain public places and designated areas.
Casino Exemption. Perhaps the most publicized in the media is the “casino” exemption. It applies to casinos in existence on May 1, 2010 and allows smoking in the gaming areas. A food service establishment within in a casino is, however, subject to the smoking ban. Nevertheless, this “exception to the exemption” is not applicable to any part of the gaming area where food or beverage is served. Finally, casinos operated under the Indian Gaming Regulatory Act are not subject to the smoking ban.
Cigar Bar Exemption. There is also a “cigar bar” exemption. To qualify, a cigar bar must be in existence by May 1, 2010. The owner or operator of the cigar bar must file, on an annual basis, an affidavit with the State Department of Community Health that the cigar bar: (1) generated ten percent or more of its gross annual income from the on-site cigar sales and humidor rentals; (2) is physically separated from any area where the smoking ban law prohibits smoking; (3) has an on-site humidor; (4) limits entry during normal business hours to persons 18 years or older; (5) only allows the smoking of cigars that retail for over $1 per cigar; and (6) prohibits smoking of all other tobacco products. If these requirements are met, your business (or a part of it, such as a cigar lounge) may qualify for the “cigar bar” exemption. If qualified, cigars may be smoked in the designated cigar bar.
Tobacco Specialty Store Exemption. The third exemption is for a “tobacco specialty retail store.” To qualify, a tobacco specialty retail store must be in existence by May 1, 2010. An annual affidavit from the owner or operator of the store must also be filed. It requires that the store: (1) generate 75 percent or more of its total gross annual income from the on-site tobacco product sales and smoking paraphernalia sales; (2) is physically separated from any area where the smoking ban law prohibits smoking; and (3) limits entry to those 18 years or older during normal business hours. If these requirements are met, your business may qualify for the “tobacco specialty retail store” exemption. If qualified, smoking is allowed in the store.
Compliance. A business that does not comply with the law or that fails to properly qualify for an exemption may be subject to fines and other penalties. The fine for a first-time violation is $100 and each subsequent violation is $500. Furthermore, a person who makes a false statement in an affidavit is subject to the penalty of perjury. Other enforcement remedies and a private cause of action are also available against food service establishments and other enclosed, indoor public places. However, a good-faith effort to prohibit smoking may be available as a defense. In addition, a grace period to file a late affidavit may be available to qualify for an exemption. Business owners, operators, managers, etc., should contact counsel for compliance advice with Michigan’s smoking ban law and its exemptions, including affidavit filing requirements.
|
