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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6519 May 31, 1988 PUBLIC HEALTH CODE: Smoking in public places SMOKING: Regulation of smoking upon premises of an enclosed grandstand at racetrack WORDS AND PHRASES: 'Arena' An individual may smoke in the enclosed grandstand of a racetrack licensed for the purpose of the sale of alcoholic liquor for consumption on the premises. Since an enclosed grandstand at a racetrack is not an arena in which sporting events take place, it is not a public place subject to the smoking in public places regulation provisions of the Public Health Code. Honorable R. Robert Geake State Senator The Capitol Lansing, Michigan 48913 You have requested my opinion on whether the Public Health Code, 1978 PA 368, Secs. 12601-12617, as added by 1986 PA 198, MCL 333.12601-333.12607 et seq; MSA 14.15(12601)-14.15(12607) et seq, which regulate the smoking of cigars, cigarettes, pipes or other lighted smoking devices in public places, are applicable to the enclosed grandstand at the Northville Downs racecourse at Northville, Michigan. Northville Downs racecourse is licensed by the Liquor Control Commission pursuant to the Michigan Liquor Control Act, 1933 (Ex Sess) PA 8, MCL 436.1 et seq; MSA 18.971 et seq, to sell alcoholic liquor for consumption on the premises. The licensed premises includes the entire grandstand and the clubhouse area. Additionally, Northville Downs is licensed as a food service establishment pursuant to the Public Health Code, Sec. 12901 et seq; MCL 333.12901 et seq; MSA 14.15(12901) et seq. Northville Downs' food service establishment license is limited to the clubhouse, which is a dining area with a seating capacity of approximately 200 persons, and to the concession stands in the grandstand. The food service establishment license does not extend to the enclosed grandstand area. As such, it must provide in its clubhouse dining area nonsmoking tables consistent with MCL 333.12905(2); MSA 14.15(12905)(2), which provides in pertinent part: 'A food service establishment with seating capacity of more than 150 persons shall provide not less than 9 tables, each with a seating capacity of not fewer than 4 persons, or the equivalent for nonsmokers. The tables shall be clearly identified as nonsmoking, placed in close proximity to each other, and located so as not to discriminate against nonsmokers.' MCL 333.12603(1); MSA 14.15(12603)(1), provides that 'an individual shall not smoke in a public place or at a meeting of a public body, except in a designated smoking area.' But MCL 333.12603(3); MSA 14.15(12603)(3), provides that '[t]he section shall not apply to a food service establishment or to licensed premises.' MCL 333.12601(1)(b) and (d); MSA 14.15(12601)(1)(b) and (d), define 'food service establishment' and 'licensed premises' as follows: '(b) 'Food service establishment' means a food service establishment as defined in section 12901. '(d) 'Licensed premises' means any portion of a building, structure, room, or enclosure located on real estate which is owned, leased, used, controlled, or operated by a licensee authorized by the Michigan liquor control commission to sell alcoholic liquor for consumption on the premises.' MCL 333.12603; MSA 14.15(12603), is the operative section which prohibits an individual from smoking in a public place except in a designated smoking area, unless the area in question is exempt from this requirement. An individual is defined in the Public Health Code, MCL 333.1105(1); MSA 14.15(1105)(1) as 'a natural person.' Since Northville Downs' enclosed grandstand is included as part of the 'licensed premises,' for sale of alcoholic liquor for consumption on the premises and MCL 333.12603; MSA 14.15(12603), does not apply to such licensed premises, it is my opinion that an individual may smoke in any area of the enclosed grandstands. Also pertinent to your question are MCL 333.12605 and 333.12607; MSA 14.15(12605) and 14.15(12607), which provide as follows: 'Sec. 12605. (1) A smoking area may be designated by the state or local governmental agency or the person who owns or operates a public place, except in a public place in which smoking is prohibited by law. If a smoking area is designated, existing physical barriers and ventilation systems shall be used to minimize the toxic effect of smoke in both smoking and adjacent nonsmoking areas. '(2) In the case of a public place consisting of a single room, the state or local governmental agency or the person who owns or operates the single room shall be in compliance with this part if 1/2 of the room is reserved and posted as a no smoking area. '(3) If smoking is permitted in a public place, the state or local governmental agency or the person who owns or operates the public place shall develop a policy for the separation of smokers and nonsmokers which provides, at a minimum, for both of the following: (a) Nonsmokers to be located closest to the source of fresh air. (b) Special consideration to be given to individuals with a hypersensitivity to tobacco smoke. '. . .. 'Sec. 12607. The state or local governmental agency or the person who owns or operates a public place shall, at a minimum, do both of the following in order to prevent smoking: (a) Post signs which state that smoking in that public place is prohibited except in designated smoking areas, pursuant to this part. (b) Arrange seating to provide, as nearly as practicable, a smoke-free area.' These provisions require the person who owns a public place where smoking is allowed to designate a smoking area, and they specify the criteria to be applied in the designation of a smoking area. MCL 333.12601(1)(g); MSA 14.15(12601)(g), provides: "Public place', except as otherwise provided in subsection (2), means both of the following: (i) An 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, health facility, auditorium, arena, meeting room, or public conveyance. (ii) An enclosed, indoor area which is not owned or operated by a state or local governmental agency, is used by the general public and is 1 of the following: (A) An educational facility. (B) A health facility. (C) An auditorium. (D) An arena. (E) A theater. (F) A museum. (G) A concert hall. (H) Any other facility during the period of its use for a performance or exhibit of the arts.' Northville Downs, as you advise in your letter, is a private harness racing facility. However, it is used by the general public. Although it is not owned or operated by a state or local governmental agency, the facility may, nevertheless, fall within the definition of a 'public place' set forth in MCL 333.12601(g)(ii); MSA 14.15(12601)(g)(ii). The Legislature has defined an educational facility and a health facility in MCL 333.12601(1)(a); MSA 14.15(12601)(1)(a), and in MCL 333.20106; MSA 14.15(20106), respectively. The grandstand of Northville Downs does not fall within those specific definitions. The Legislature has not defined the terms 'auditorium,' 'arena,' 'theater,' 'museum,' 'concert hall' or 'performance or exhibit of the arts.' The only term, if any, that might apply to Northville Downs would be 'arena.' A review of Michigan case law has disclosed no precedent which has defined 'arena.' Since the Legislature has not defined the term 'arena,' this word is to be given its plain and ordinary meaning. Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980). Without a statutory definition or controlling judicial decision, resort may be had to dictionary definitions. State v Levenburg, 406 Mich 455, 465; 280 NW2d 810 (1979). Webster's Third New International Dictionary, Unabridged Edition (1963), defines the term 'arena' as 'a central area or open space within an enclosure used for indoor sports.' The term 'arena' has been defined in Steinberg v Forest Hills Golf Range, 303 NY 577, 583; 105 NE2d 93, 95 (1952), where the Court of Appeals of New York concluded: 'And, just as clearly, it [the gold driving range] is not an 'arena'. Generally defined as 'The central part of an amphitheatre, in which the combate or spectacular displays take place,' 1 Oxford English Dictionary (1933), p. 439, or as 'Any place of public contest or exertion,' Webster's New International Dictionary, op. cit., p. 145, the term necessarily implies an effort before spectators, and, where sports events are involved, the element of a public contest between competitors.' See also Murphy v McClintock, 160 Mont 355; 503 F2d 1013 (1972). Under any of the above definitions, however, it is clear that the grandstand at a racecourse such as that which is located at Northville Downs does not constitute an 'arena.' It is my opinion, therefore, that since an enclosed grandstand at a racetrack is not an arena in which sporting events take place, it is not a public place subject to the smoking in public places regulation provisions of the Public Health Code. Frank J. Kelley Attorney General
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