STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6460

August 25, 1987

SMOKING:

Public places--designation of nonsmoking areas in room in which smoking is permitted

Smoking in private, enclosed room or office of public place

WORDS AND PHRASES:

"Private, enclosed room or office"

A cubicle enclosed only by five foot high partitions within a room in a public place is not a private, enclosed room which may be occupied by a smoker.

In a public place consisting of a large room divided in whole or in part into work cubicles by means of five foot partitions, designated smoking areas need not be compact and contiguous, but must be selected so as to locate nonsmokers closest to the source of fresh air in the room and must utilize physical barriers and ventilation systems in such a manner as to reduce, as nearly as practicable, the flow of smoke into nonsmoking areas of the room. The designation of every other cubicle as a smoking area in such room in a "checkerboard" fashion would fail to comply with MCL 333.12605; MSA 14.15(12605).

The Legislature has required in MCL 333.12605; MSA 14.15(12605)(3)(a), that patterns of air circulation be considered when designating smoking areas in a room in a public place to assure that nonsmokers are placed in an area of the room having the least exposure to smoke.

Honorable Jack Faxon

State Senator

State Capitol

Lansing, Michigan 48909

You have requested my opinion regarding the proper construction and application of 1978 PA 368, MCL 333.12601 et seq; MSA 14.15(12601) et seq, as added by 1986 PA 198, popularly known as the clean indoor air in public places amendments to the Public Health Code. These provisions are intended to regulate and substantially restrict smoking in public places.

MCL 333.12603(1); MSA 14.15(12603)(1), provides:

The term "public place" is defined by MCL 333.12601(1)(g); MSA 14.15(12601)(1)(g), as including, among other things:

MCL 333.12601(2); MSA 14.15(12601(2), however, provides the following exclusion from the definition of "public place":

Thus, a "private, enclosed room or office occupied exclusively by a smoker" is effectively exempted from the restrictions otherwise placed upon smoking in public places.

The clean indoor air in public places amendments do not define the phrase "private, enclosed room," nor does research disclose any Michigan judicial decisions which have construed or defined the term "room" or "private enclosed room."

The primary rule governing the interpretation of statutes is to ascertain and give effect to the Legislature's intention. White v Ann Arbor, 406 Mich 554, 572; 281 NW2d 283 (1979). In determining the legislative intent, it is necessary to examine the act as a whole. Harrow v Metropolitan Life Ins Co, 285 Mich 349, 356; 280 NW 785 (1938). If one section of a statute is ambiguously worded, the legislative intent may be determined by looking to the clear and express language found in other sections of the same act. Simmons v Marlette Bd of Education 73 Mich App 1; 250 NW2d 777 (1976), citing Bidwell v Whitaker, 1 Mich 469, 479 (1850).

Several other sections of 1986 PA 198 are instructive in determining legislative intent. MCL 333.12605; MSA 14.15(12605), for example, permits a public body to designate smoking areas within public buildings, but goes on to provide, in pertinent part:

Similarly, MCL 333.12607; MSA 14.15(12607), provides, in pertinent part:

The intent of the Legislature in passing amendatory 1986 PA 198 is clear. As these provisions demonstrate, the Legislature intended to restrict smoking in public buildings and to minimize, to the extent possible, the exposure of nonsmokers to the toxic effects of smoke.

If the term "private, enclosed room" were to be construed as including the type of cubicles described in your question, the effect would be to permit persons to smoke freely within such cubicles. Such a result would plainly frustrate the clear legislative intent described above. The five foot high partitions surrounding such cubicles would be of virtually no benefit in preventing or reducing the involuntary exposure of nonsmokers in neighboring cubicles to the toxic effects of smoke. It follows that the Legislature could not have intended such a construction. Harrow v Metropolitan Life Ins Co, supra.

This analysis is consistent with the result reached by those courts which have interpreted and construed the term "room" as used in other statutes. In Strell v Zisman, 5 NJ Misc 427, 429; 136 A 801, 802 (1927), for example, the Court of Chancery of New Jersey was asked to determine if an improvised room or platform constructed in the rear of a store and enclosed with beaver boards to the height of six feet above the platform qualified as a "room" under the New Jersey State Tenement House Act. The court held:

Similarly, Benintendi v Phlevis Realty Corp, 73 F Supp 320 (D NJ, 1947), involved a lodging house in which a large room had been sectioned off into cubicles, each containing a bed available for rent by the night. The court said that the classification of these cubicles as rooms was "quite untenable" and beyond the meaning of the word "room." Rather, the court concluded the cubicles constituted a "mere sectioning off of a single room in order to provide a degree of privacy for the occupier...." 73 F Supp at 322.

It is my opinion, in response to your first question, that a cubicle enclosed only by five foot high partitions within a room in a public place is not a "private, enclosed room" which may be occupied by a smoker within the meaning of MCL 333.12601(2); MSA 14.15(12601)(2).

Your second question concerns the designation of smoking areas in large rooms which have been divided into cubicles of the type involved in your first question. Specifically, you have inquired whether the designated smoking area is required to be "compact and contiguous" or whether it could be "every other cubicle similar to the red squares of a checkerboard?"

MCL 333.12605; MSA 14.15(12605), provides:

Also pertinent to your question is MCL 333.12607(b); MSA 14.15(12607)(b), which requires a governmental agency or building owner to "[a]rrange seating to provide, as nearly as practicable, a smoke-free area."

It is apparent from a review of these provisions that designated smoking areas within a large room must utilize existing barriers and ventilation systems so as to minimize the toxic effects of smoke in both smoking and in adjacent nonsmoking areas. Further, the smoking areas must be designated in a manner which places nonsmokers closest to the source of fresh air and which provides, as nearly as practicable, a smoke-free area in the nonsmoking portions of the building.

The Legislature has not required that designated smoking areas within a large room be "compact and contiguous." Indeed, depending upon the nature and placement of the ventilation ducts within the room, it is entirely conceivable that in a large open area of the kind posited by your question, the selection of several different smoking areas might be preferable, and might more closely comply with the requirements of the statute, than would the designation of a single "compact and contiguous" area.

As is noted above, the partitions surrounding the type of cubicles involved in your question do not significantly hinder the flow of smoke into neighboring cubicles. Given the type of ventilation systems typically used in such areas, a checkerboard designation of the sort posited by your question plainly would fail to locate nonsmokers closest to the source of fresh air and certainly would not minimize the exposure of persons in adjacent nonsmoking areas to the toxic effects of smoke.

It is my opinion, in response to your second question, that in a public place consisting of a large room that has been divided in whole or part into work cubicles by means of five foot high partitions, designated smoking areas need not be compact and contiguous, but must be selected so as to locate the nonsmokers closest to the source of fresh air in the room and must utilize existing physical barriers and ventilation systems in such a manner as to reduce, as nearly as practicable, the flow of smoke into nonsmoking areas of the room. It is my further opinion that in such a work area, the designation of every other cubicle as a smoking area in "checkerboard" fashion would fail to comply with MCL 333.12605; MSA 14.15(12605).

Finally, you ask for clarification of MCL 333.12605(3)(a); MSA 14.15(12605)(3)(a). That provision, quoted in its entirety above, provides that if smoking is permitted in a public place, a policy must be developed for the separation of smokers and nonsmokers which includes, at a minimum, that nonsmokers are "to be located closest to the source of fresh air."

A reading of MCL 333.12605(3)(a); MSA 14.15(12605)(3)(a), in the context of the surrounding sections evidences the clear legislative intent that if smoking is to be permitted in a public place, the governmental agency or building owner must make a reasonable effort to locate any designated smoking areas so as to best minimize the flow of smoke into the nonsmoking areas of the building. At a minimum, this effort must include placing nonsmoking areas of a building or room closest to any sources of fresh air such as air conditioning or heating ducts or windows.

This requirement must be taken into account in implementing other related sections of this Act. For example, MCL 333.12605(2); MSA 14.15(12605)(2), provides that when designating a smoking area within a single room, the governmental agency or property owner will be deemed to be in compliance with the act "if 1/2 of the room is reserved and posted as a no smoking area." However, because of the requirement imposed by MCL 333.12605(3)(a); MSA 14.15(12605)(3)(a), the agency or owner may not arbitrarily designate 1/2 of the room as a smoking area without taking into consideration the air flow patterns within the room. In designating the smoking area, the agency or owner must attempt to locate the nonsmoking area nearest to any sources of fresh air.

It is my opinion, in answer to your third question, that MCL 333.12605(3)(a); MSA 14.15(12605)(3)(a), requires that patterns of air circulation be considered when designating smoking areas in a room in a public place to assure that nonsmokers are placed in an area of the room having the least exposure to smoke.

Frank J. Kelley

Attorney General