Smoke-Free Environments Law Project

The Center for Social Gerontology, Inc.

2307 Shelby Avenue

Ann Arbor, Michigan 48103

734 665-1126 • fax 734 665-2071 • sfelp@tcsg.org

MICHIGAN CLEAN INDOOR AIR ACT SUMMARY

OVERVIEW:

The Michigan Clean Indoor Air Act prohibits smoking in "public places," except in a designated area. However, the definition of "public place" is quite specific and does not include many locations that would commonly be thought of as "public."

The majority of the requirements of the Clean Indoor Air Act pertain to designated areas. While there are no requirements to actually designate a smoking area, i.e., a public place can be 100% smoke-free and still be in compliance with the Clean Indoor Air Act, a smoking area may be designated by (1) the state or local governmental agency or (2) the person who owns or operates the public place. If a smoking area is designated , the owner/operator must, at a minimum:

· Use existing physical barriers and ventilation systems to minimize the toxic effect of smoke in both smoking and adjacent nonsmoking areas;

· Develop and enforce a written policy for the separation of smokers and nonsmokers which provides, at a minimum:

o Nonsmokers are to be located closest to the source of fresh air;

o Special consideration be given to individuals with a hypersensitivity to tobacco smoke;

o A procedure be in place to receive, investigate, and take action on complaints.

· Further, owner/ operators, are required to:³

· Post signs that state that smoking is prohibited, except in designated areas;

· Arrange seating to provide, as nearly as practicable, a smoke-free area;

EXCEPTIONS:

As the term "public place" suggests, the Clean Indoor Air Act does not apply to most private sector workplaces. Also exempt from the requirements are restaurants ; private educational facilities after regularly scheduled school hours ; private, enclosed rooms or offices (except in health facilities) occupied exclusively by a smoker, even if the room is visited by non-smokers. Further, the Clean Indoor Air Act does not apply to "a room, hall, or building used for a private function if the seating arrangements are under the control of the sponsor of the function and not under the control of the state or local government, or the owner or operator of the room, hall, or building."

The Clean Indoor Air Act places slightly different requirements on two types of facilities: child care facilities and private practice offices of health professionals. In child care centers or on property under the control of a child care center, smoking is completely prohibited. In health facilities, smoking is allowed only in a designated area that is enclosed and ventilated or otherwise constructed to ensure a smoke-free environment in patient care areas and common areas. Further, in a health facility, patients may smoke only if a prohibition "would be detrimental to [that] patient's treatment," as determined by the collective health facility medical staff. Patients who are permitted to smoke must be in a separate room from nonsmoking patients.

ENFORCEMENT:

The Clean Indoor Air Act contains specific provisions for its enforcement. Monetary penalties include $100 fine for the first violation, and $500 for each subsequent violation. Additionally, the Michigan Department of Community Health (MDCH) or a local department of health can enforce the Clean Indoor Act through a civil action. Individuals can notify MDCH at (517) 335-8376 or (517) 335-9377 or their local department of health of alleged violations. Also, any person who has used the facility can allege a violation of the Clean Indoor Air Act and bring an action for injunctive relief, as long as the action is filed within 60 days of the use. All of the above remedies are independent and cumulative. In other words, the use of one of the remedies does not bar the use of another.

ANALYSIS:

The Michigan Clean Indoor Act, at first glance, appears to be a sweeping mandate for clean indoor air. However, the law applies only to "public places" as defined in the law. In those "public places," owner/operators may designate certain areas where smoking is permissible. They are not, however, required to provide physically separated smoking and nonsmoking areas. Nor are they required to make any changes in their ventilation systems.

While Michigan law does give specific requirements for designated areas, those requirements are not all-encompassing. As is the case with nearly all statutory law, vagueness can be problematic. For example, vagueness in the requirements of designated areas (e.g. What is a "source of fresh air?" How big is it? Can "closest to" the fresh air can be 200 feet away, if the smoking area is 250 feet away? What is "special consideration" for residents with hypersensitivity to smoke? Etc.) can have a significant impact on the air quality of the facility and on the level of effort owner/operators must undertake in complying with the law.

Other sections of the laws, like the allowance for facilities to use existing ventilation systems, are similarly problematic. Although installing new or modifying existing systems would be costly, many existing ventilation systems are likely to run to all rooms with no separation, so that smoke from the designated smoking area could enter the rest of the building.

Unfortunately, few of these issues have been clarified through either litigation or non-binding opinions of the Attorney General. In fact, research shows that currently, a sole Attorney General's Opinion interpreting the Clean Indoor Air Act provisions on "private, enclosed rooms" in office settings containing cubicles is the only such interpretation. In that opinion, the Attorney General stated that five foot high cubicles do not meet the requirements in the Clean Indoor Air Act that allow smoking in "private, enclosed rooms occupied exclusively by a smoker."

Overall, the law requires "public places" to put forth a good faith effort to limit smoking to certain areas and to keep facility users informed of the policy. However, the lack of specificity does open the possibility for facilities to be in compliance with the laws while still exposing residents, staff, and visitors to a significant amount of secondhand smoke.

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¹"Public places" are defined as "[a]n enclosed, indoor area owned or operated by a state or local governmental agency and used by the general public or serving as a place of work for public employees or a meeting place for a public body, including an office, educational facility, home for the aged, nursing home, county medical care facility, hospice, hospital long-term care unit, auditorium, arena, meeting room, or public conveyance." Enclosed, indoor areas which are not owned or operated by a state or local governmental unit, but are included in the definition are: "an educational facility, home for the aged, nursing home, county medical care facility, hospice, hospital long-term care unit, an auditorium, an arena, a theater, a museum, a concert hall, and any other facility during the period of its use for a performance exhibit of the arts." Mich. Comp. Laws § 333.12601(m)(i)-(ii) (1998)

²One caveat to the designated area requirement is that in the case of a public place consisting of a single room, the state or governmental agency or person who owns or operates the single room is in compliance if 1/2 of the room is reserved and posted as a nonsmoking area. Mich. Comp. Laws § 333.12605 (2) (1998).

^3
4See fn 1.
⁵Mich. Comp. Laws § 333.12603 (3) (1998). Food services establishments have separate guidelines. See Mich. Comp. Laws ¤ 333.12905 (1998).
⁶Mich. Comp. Laws § 333.12603 (4) (1998).
⁷Mich. Comp. Laws § 333.12601(2) (1998).
⁸Mich. Comp. Laws § 333.12603 (2) (1998).
⁹Mich. Comp. Laws § 333.12604 (1998).
¹⁰Mich. Comp. Laws § 333.12604a (1998).
¹¹Mich. Comp. Laws § 333.12604(1) (1998).
¹²Mich. Comp. Laws § 333.12604a(2)(b) (1998).
¹³Mich. Comp. Laws § 333.12604a(2)(a) (1998).
¹⁴Mich. Comp. Laws § 333.12611 (1998).
¹⁵Mich. Comp. Laws § 333.12613(1)-(2) (1998).
¹⁶Mich. Comp. Laws § 333.12613(3) (1998).
¹⁷Mich. Atty. Gen. Op. No. 6460 (1987).
¹⁸Id.