Smoking Ban Compliance Checklist

Public Act 188 of 2009 (the "Act") prohibits smoking in all food service establishments (FSE) on May 1, 2010.  An FSE is a place in which food or drink is prepared for direct consumption through service on the premises or elsewhere, including establishments that only serve beverages such as taverns, bars, cocktail lounges, or nightclubs.  To be in compliance with the Act on May 1^st, an FSE must take the following actions:

• Clearly and conspicuously post "no smoking" signs or the international "no smoking" symbol at the entrances to and in every building or other area "where smoking is prohibited"

• Remove all ashtrays and other smoking paraphernalia from areas "where smoking is prohibited"

Once the Act is in effect, a person who owns, operates, manages, or is in control of an FSE must make reasonable efforts to prohibit individuals from smoking in an FSE.  The "reasonable effort" mandated by the Act includes the following actions: 

• Inform individuals smoking in violation of the Act that they are in violation of state law and subject to penalties

• Refuse to serve an individual smoking in violation of the Act

• Ask an individual smoking in violation of the Act to refrain from smoking

• If the individual continues to smoke after you have asked him or her to refrain from smoking, ask him or her to leave the food service establishment

The Michigan Department of Community Health will enforce the Act, and will engage local health departments to assist with enforcement efforts.  An individual who violates the Act, which can either be an individual smoker, or a person who owns, operates, manages, or is in control of a food service establishment, is subject to a civil fine of not more than $100.00 for a first violation, and not more than $500.00 for a second or subsequent violation.  In addition to these fines, a local health department officer may issue an order to cease food service operations if the FSE does not correct a violation of the Act within 2 days of receiving a violation order from Department of Community Health or local county health department.  An FSE can successfully defend alleged smoking violations if the owner, operator, manager or person in control of the FSE, can attest through a sworn affidavit subject to penalty of  perjury, that he or she made a good faith effort to prohibit smoking in the FSE by complying with the mandates of the Act.  FSEs are fortunate to have the ability to assert this affirmative defense in such violation actions.  Therefore it is critical that FSEs take the initial steps to comply with the Act, and make "reasonable effort" to enforce the Act in the operation of their business.