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. 5336

June 28, 1978

TOBACCO AND TOBACCO PRODUCTS:

Use of cigarettes in public schools

CHILDREN AND MINORS:

Use of cigarettes

SCHOOLS AND SCHOOL DISTRICTS:

Use of cigarettes in public schools

PROSECUTING ATTORNEYS:

Discretion to institute prosecution

ARREST:

Arrest without warrant for misdemeanor

A board of education of a school district may prohibit smoking by all persons on school grounds.

A rule adopted by a board of education of a school district prohibiting all students from smoking is valid.

If a school district operates a night program differently from a day program and the difference in operation has an effect on the health, safety and welfare, it may adopt no-smoking regulations for the day program while permitting smoking for the night program.

A school board may provide an area in which adult students may smoke.

The law does not compel a citizen to report all incidents of violation of a no-smoking law which he or she observes.

A prosecuting attorney is vested by law with the right to exercise sound discretion in determining whether to prosecute individual cases.

A peace officer may not make an arrest without a warrant for a misdemeanor not committed in his presence.

Honorable Thomas Guastello

State Senator

The Capitol

Lansing, Michigan

Honorable Michael J. Griffin

State Representative

The Capitol

Lansing, Michigan

You both have requested my opinion on a number of questions concerning cigarette smoking on school property. Your questions will be addressed seriatim:

'1. May a school district prohibit smoking by all persons on school grounds?'

1915 PA 31, as last amended by 1972 PA 29, MCLA 722.641 et seq; MSA 25.281 et seq, is an act to prohibit the selling, giving or furnishing of cigarettes to minors and to prohibit the harboring of minors for the purpose of indulging in the use of cigarettes. See OAG 1977-1978, No 5202, p ___ (July 11, 1977).

1915 PA 31, supra, Sec. 3 states:

'One who knowingly harbors a person under 18 years of age, or grants to them the privilege of gathering upon or frequenting property or lands held by him, for the purpose of indulging in the use of cigarettes in any form, shall be held under the same penalty as provided in section 1. (1) This act shall not interfere with the right of parents or lawful guardians in the rearing and management of their minor children or wards within the bounds of their own private premises.'

The School Code of 1976, 1976 PA 451, MCLA 380.1 et seq; MSA 15.4001 et seq, provides school districts with the authority to make and enforce rules relating to the care of school property and the conduct of students.

Section 1261 of the School Code of 1976, supra, MCLA 380.1261; MSA 15.41261 states as follows:

'The board of a school district shall have the general care and custody of the schools and property of the district and shall make and enforce suitable regulations for the general management of the schools and the preservation of the property of the district.'

Section 1300 of the School Code of 1976, supra, MCLA 380.1300; MSA 15.41300 states:

'The board of a school district shall make reasonable regulations relative to anything necessary for the proper establishment, maintenance, management, and carrying on of the public schools of the district, including regulations relative to the conduct of pupils concerning their safety while in attendance at school or enroute to and from school.'

State and federal courts have held that the rule making authority of boards of education over the operation of schools is valid as long as such authority is reasonably exercised. See LaPorte v Escanaba Area Public Schools, 51 Mich App 305, 214 NW2d 840 (1974); Nigosian v Weiss, 343 F Supp 757 (ED Mich 1971).

A school rule prohibiting smoking or drinking by high school athletes was upheld as reasonable in O'Connor v Board of Education, 316 NY Supp 2d 799 (1970).

The regulation of smoking in public places is a reasonable exercise of the police power. The legislature has restricted smoking by adults to designated areas in hospitals, 1968 PA 17, MCLA 331.416a; MSA 14.1179(6a); in food service establishments, 1968 PA 269, MCLA 325.802(2); MSA 14.529(2); and in retail food stores, the Michigan Food Law, 1968 PA 39, MCLA 289.707a; MSA 12.933(7a). This regulatory power extends to the prohibition altogether of smoking or carrying lighted tobacco in elevators. 1967 PA 227, MCLA 408.820; MSA 17.495(20).

The public purposes to be served by regulating or prohibiting smoking in public places include reducing the possibility of fires to avoid personal injury or property damage and the protection of the public health. The protection of persons and public property from fire in our public schools is clearly a proper purpose and a rule prohibiting smoking on school premises is reasonably related thereto. Therefore, it is my opinion, that a board of education of a school district may prohibit smoking on school property pursuant to the School Code of 1976, Secs. 1261 and 1300, supra.

'2. May a school district prohibit smoking by all adult students while permitting all other adults on school grounds to smoke?'

The validity of a rule or regulation established pursuant to the School Code of 1976, Secs. 1261 and 1300, supra, is tested by its reasonableness. LaPorte v Escanaba Area Public Schools, supra; Nigosian v Weiss, supra. A rule prohibiting all students from smoking, whether minor or adult, is not unreasonable. Thus, a school district could reasonably permit smoking by adults in the teachers' lounge without permitting adult students to use the lounge for smoking purposes.

'3. May a school district prohibit all adult day students from smoking while permitting all other adults, including adult evening students, to smoke?'

The subject of establishing classifications was discussed by the Michigan Supreme Court in Baldwin v North Shore Estates Association, 384 Mich 42, 50-52; 179 NW2d 398 (1970), as follows:

'This Court has previously discussed at length the principles governing such questions in the case of Fox v. Employment Security Commission (1967), 379 Mich 579, where we said (pp 588, 589):

"This Court has held numerous times that the Michigan Const 1908, art 2, Sec. 1, secures the same right of equal protection as does its counterpart in the Constitution of the United States. Gauthier v. Campbell, Wyant & Cannon Foundry Company [1960], 360 Mich 510, 514, and cases therein cited. The same provisions in Const 1963, art 1, Secs. 1 and 2, must likewise be held to afford the same rights as the Federal equal protection clause.

"There is no doubt that state legislatures have a broad range of discretion in establishing classifications in the exercise of their powers of regulation. However, the constitutional guarantees of equal protection are interposed against discriminations that are entirely arbitrary. In determining what is within legislative discretion and what is arbitrary, regard must be had for the particular subject of the state legislation. There must be a relation between the classification and the purposes of the act in which it is found. Smith v Cahoon, Sheriff [1931], 283 US 553, 566 (51 S Ct 582, 587; 75 L Ed 1264, 1274); Morey v. Doud [1957], 354 US 457, 465 (77 S Ct 1344, 1350; 1 L Ed 2d 1485, 1491); Beauty Built Construction Corporation v. City of Warren [1965], 375 Mich 229; Palmer Park Theatre Company v. City of Highland Park [1961], 362 Mich. 326.

"In the case of People v. Chapman [1942], 301 Mich 584, a statute of this State was challenged as unconstitutionally denying the defendant therein equal protection of the laws. Justice Starr, writing for the Court, stated (pp 597, 598):

"'It is well recognized that the legislature may make classifications of persons, provided such classifications are based on substantial distinctions and are in accord with the aims sought to be achieved. (Citing cases.) However, such classification must be neither arbitrary nor capricious, but must rest on reasonable and justifiable foundations. In Haynes v. Lapeer Circuit Judge, supra [(1918), 201 Mich 138], p 141, the rule is stated:

""Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition against class legislation."'

"See, also, Davidow v. Wadsworth Manfg. Co. [1920], 211 Mich 90, 97-102; Penninsular Stove Co. v. Burton [1922], 220 Mich 284, 286; Smith v. Wayne Probate Judge [1925], 231 Mich 409."

Applying these principles, if the day and night programs are operated in the same manner, there could not be a valid basis for treating day and night students differently. On the other hand, if the programs are operated differently, the difference, a depending upon its relationship to the objective to be achieved, may constitute a basis for different smoking regulations. For example, the night school program might be conducted in a small portion of the school building, where fire prevention is more easily controlled, whereas the day school program would be conducted throughout the whole school building, thus making fire prevention more difficult. In that context, a rule distinguishing between adult day students and adult night students, for smoking purposes, would not be unreasonable.

'4. May a school board provide an area in which adult students may smoke?'

The result reached in 1977-1978, OAG No 5202, supra, was based on 1915 PA 31, MCLA 722.641 et seq; MSA 25.281 et seq, which prohibits a person under 18 years of age from smoking in a public place. 1915 PA 31, supra, does not apply to a person over the age of 18 years. Therefore, it is my opinion that there is no prohibition against a board of education designating an area to be available for adult students to indulge in the use of cigarettes.

'5. If a person under the age of 18 is observed by a school official using cigarettes on school property, what obligation does that official have to report the incident to the local law enforcement agency?'

In the absence of statute, the mere knowledge that a crime has been committed does not make one an accessory after the fact. 22 CJS, Criminal Law, Sec. 99d, p 278. Careful research has revealed that the only statutes which impose a penalty for failing to report a criminal act are: the Child Protection Law, 1975 PA 238, MCLA 722.621 et seq; MSA 25.248(1) et seq, which requires certain professionals to report incidents of child abuse as this term is described in the statute; the Michigan Penal Code, ch LXXXIV, Sec. 545, MCLA 750.545; MSA 28.813, which makes it a felony for a person with knowledge of the commission of the crime of treason to fail to disclose his knowledge to proper authorities and Sec. 545b of the Penal Code, MCLA 750.545b; MSA 28.813(2), which makes failure to report knowledge of the commission of the crime of subversion a felony.

'6. [I]f the local school official does report the offender, what response can the school district reasonably expect from the local law enforcement agencies?'

Prosecuting attorneys are vested by law with the duty to prosecute violations of the criminal law, both felonies and misdemeanors. RS 1846, Chapter 14, Sec. 53, MCLA 49.153; MSA 5.751. However, the duty to prosecute is not absolute but rests in the sound discretion of a prosecuting attorney.

'He is expected to be impartial in abstaining from prosecuting as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned.'

Engle v Chipman, 51 Mich 524, 526, 16 NW 886, 887 (1883)

Thus, the action taken by the prosecuting attorney in response to the report of a violation of 1915 PA 31, supra, is in the discretion of the prosecuting attorney.

'7. [D]oes the statement '. . . may be arrested by an officer of the law who observes the offense . . .' imply that the officer must personally observe the offender in the act before an arrest is possible?'

A peace officer who observes the commission of a misdemeanor is authorized by law to make an immediate arrest. 1927 PA 175, MCLA 764.15(a); MSA 28.874(a). People v Dixon, 45 Mich App 64; 205 NW2d 852 (1973). An officer may not arrest a person without a warrant for a misdemeanor committed outside his presence. People v Southern, 274 Mich 628, 265 NW2d 831 (1936). However, the officer may obtain a warrant for an arrest based on facts sworn to by a complaining witness. MCLA 774.4; MSA 28.1195.

Thus, it is my opinion, that an arrest pursuant to 1915 PA 31, supra, may be made by an officer of the law who observes the offense without a warrant. If the offense is committed outside of the officer's presence, he may obtain a warrant based on the sworn statement of a complaining witness.

Frank J. Kelley

Attorney General

(1) Section 1 provides a punishment of $50.00 fine or imprisonment in the county jail for 30 days for violation of the act.