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
SMOKING BANS IN RESTAURANTS & BARS
AND IN WORKPLACES & PUBLIC PLACES IN MICHIGAN:
THE MARQUETTE DECISION
AN ANALYSIS
April 2, 2001
ISSUE: Do Michigan localities have the authority to regulate smoking in restaurants and bars, as well as in other workplaces and public places?
CONCLUSION: On March 13, 2001, the Michigan Court of Appeals issued its ruling in the Marquette smoking ban ordinance case. The City of Marquette has voted to appeal the decision to the Michigan Supreme Court, contending that the Court of Appeals misinterpreted the law. However, until, and if, the Michigan Supreme Court issues a decision in this case (it won't be known until later whether the Court will accept the case), the Court of Appeals decision stands as the law of the State of Michigan.
The following are the key points that can be derived from Michigan law and the Marquette decision:
1. Localities are currently prohibited from totally banning smoking in food service establishments, which include restaurants and bars.
2. It appears from the Marquette decision that localities can regulate smoking in restaurants and bars to some extent, such as limiting the number of smoking seats and possibly requiring smoking areas to be separately enclosed and separately ventilated.
3. Based on Michigan law, localities can totally ban smoking in all workplaces and public areas, except for restaurants and bars. (The Marquette decision only dealt with total smoking bans in restaurants. The right of localities to enact total smoking bans in other workplaces and public places has not been challenged, nor do we believe there is basis for such a challenge.)
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SUMMARY OF CURRENT STATUS OF MICHIGAN LAWS CONCERNING THE AUTHORITY OF LOCALITIES TO ENACT SMOKING BANS IN FOOD SERVICE ESTABLISHMENTS, INCLUDING RESTAURANTS AND BARS
The March 13, 2001 Michigan Appeals Court decision in the Marquette case clearly ruled that localities could not totally ban smoking in food service establishments, which include restaurants and bars. However, a close analysis of the decision leads the Smoke-Free Environments Law Project (SFELP) to believe that the decision still allows localities some room for regulation of smoking in restaurants and bars, as discussed below.
First, the Marquette decision concludes by stating that "the [Marquette] ordinance is in direct conflict with a food service establishment's right under MCL 333.12905(2); MSA 14.15(12905)(2) to designate a certain percentage of its seating capacity as seating for smokers. The question of whether there should be a total ban on smoking in restaurants [and bars] must be left to the legislature." Thus, a locality is prohibited from banning smoking totally in restaurants and bars because state law preempts such local action.
However, the decision also appears to allow localities to regulate certain aspects of smoking in restaurants and bars, providing the local laws do not totally ban smoking in these businesses. The court said that "the state statute in question, MCL 333.12905(5); MSA 14.15(12905)(2) mandates the maximum number of smoking seats a food service establishment may maintain. ... The ordinance at issue in this case places a complete ban on smoking in restaurants in the City of Marquette." In its analysis of the Marquette ordinance, the court stated it "must determine if the ordinance is merely an extension of state law," or if it goes beyond mere extension and prohibits what the state law allows. The court then said: "The Marquette ordinance does something more than expanding the state statute to make it more stringent. The ordinance creates a general prohibition on smoking as opposed to, for example, creating a higher percentage of nonsmoking tables." This statement clearly indicates that Marquette or any other locality does have some ability to regulate smoking in restaurants and bars, e.g., to increase the percentage of nonsmoking seats in restaurants with seating capacity of fewer than 50 to require that 75% of the seats be nonsmoking instead of 25% (the state law says that such a business "may designate up to 75% of its seating capacity as seating for smokers").
The court went on to say that the state law "MCL 333.12905; MSA 14.15(12905) directly addresses smoking and nonsmoking seats in restaurants by requiring a certain number of seats to be nonsmoking seating. 'Where the state law expressly provides that the state's authority to regulate a specified area of the law is to be exclusive, there is no doubt that municipal regulation is preempted.' " However, the court went on to say that MCL 333.12915; MSA 4.15(12915) provides that localities may enact laws which are not in conflict with the state health code. The court said that reconciling these two laws is difficult, and then stated that "it is clear that to withstand this statute [i.e., analysis] a local ordinance must both address an area not preempted by state statute and be in accordance with the state statute. The Marquette ordinance falls short of both prongs of this standard because it involves an area already specifically covered by state statute and it directly opposes what the state statute specifically allows." The 2 judge majority opinion of the court then went on to say that "the [Marquette] ordinance is in direct conflict with a food service establishment's right under MCL 333.12905(2); MSA 14.15(12905)(2) to designate a certain percentage of its seating capacity as seating for smokers. The question of whether there should be a total ban on smoking in restaurants [and bars] must be left to the legislature."
In an opinion concurring in part and dissenting in part, Judge Hoekstra said that he agreed that MCL 333.12905 does regulate the same matter (smoking in restaurants) as the Marquette ordinance, and therefore the ordinance is preempted. However, he goes on to say that, in his opinion, "generally a provision of the Public Health Code preempts enactments of local governmental entities only when the local acts are less stringent than those required by the state's health code. Because I read [Marquette's] smoking ordinance to be more stringent than that of the state, I conclude that it is not preempted by MCL 333.12905." He goes on to say that MCL 333.12905 "is intended to guarantee nonsmoking, not smoking, space. ... Accordingly, because [Marquette's] smoking ordinance provides for more, not less, nonsmoking space, it is not preempted by MCL 333.12905."
Conclusion: Where does this leave localities' authority to regulate smoking in restaurants and bars? Until a higher court renders an opinion on this issue, the answer is somewhat speculative. However, based on the language and example given in the majority opinion, in which the court said
"the Marquette ordinance does something more than expanding the state statute to make it more stringent. The ordinance creates a general prohibition on smoking as opposed to, for example, creating a higher percentage of nonsmoking tables,"
it appears that localities have a clear ability to regulate in some areas concerning smoking in restaurants and bars, including making the law more stringent. The most obvious area for regulation, based on the court's own example, is in specifying the percentages of nonsmoking seats. However, it would also appear that localities could enact a law that the nonsmoking seating must be physically separated and separately ventilated from the smoking areas, since this does not "oppose" the state law by banning smoking in the restaurants or bars, it merely prescribes how they must be located within the facility.
Thus, it is SFELP's interpretation of the Marquette decision that localities are not totally prohibited from enacting ordinances or regulations concerning smoking in restaurants and bars; however, any such laws must be consistent with the Marquette decision. In our opinion, it would be consistent with the Marquette ruling for a locality to enact a law which requires that the smoking seating in the restaurant or bar be separated from the nonsmoking seating by a floor to ceiling wall/barrier and that the smoking area be totally separately ventilated from the nonsmoking area. The crux of this is that smoking would not be banned entirely in restaurants and bars, but that localities do have some authority over how and where such smoking can take place, especially since MCL 333.12905 is intended to guarantee nonsmoking space.
While the above analysis is subject to differing interpretations by others and while it can be expected that opponents of smoking restrictions would argue that localities lack any authority to regulate smoking in restaurants and bars, we believe this to be an accurate reading of the Marquette decision, and, if followed by localities, would be quite likely to pass scrutiny by the courts. The real question is, not whether such a law would be challenged, but what is in the best interest of the health of citizens in the community, consistent with Michigan laws.
BRIEF SUMMARY OF THE AUTHORITY OF MICHIGAN LOCALITIES TO ENACT SMOKING BANS IN WORKPLACES AND PUBLIC PLACES OTHER THAN FOOD SERVICE ESTABLISHMENTS
In a separate analysis produced by SFELP in August, 2000, we concluded that Michigan localities have the authority to restrict smoking in most places of public accommodation, including worksites, both public and private. We stated at that time that some communities have already taken such action, including the City of Marquette, which totally banned smoking in worksites and public places, including restaurants but not bars.
It is notable that when the Marquette ordinance was challenged, the only portion challenged was the ban on smoking in restaurants. The ban on smoking in worksites and public places, other than restaurants, in Marquette has been in effect since January 1, 1999. As we noted previously, the absence of any challenge to the other portions of the Marquette ordinance reflects the fact that local government authority to impose such smoking restrictions on workplaces and public places is not preempted by state law.
Thus, while the Michigan Court of Appeals decision in the Marquette case restricts the ability of localities to regulate smoking in food service establishments, the Court of Appeals was not asked to rule on the authority of localities to regulate smoking in other workplaces or public places. Therefore, there is nothing in the Marquette case decision which changes our earlier view that localities have the authority to restrict smoking in workplaces and public places, other than food service establishments. This authority of localities extends to total smoking bans in workplaces and public places.
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Prepared by the Smoke-Free Environments Law Project, April 2, 2001