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. 6719 May 4, 1992 APARTMENT COMPLEXES: Separation of smokers and non-smokers in privately-owned apartment complexes SMOKING: Separation of smokers and non-smokers in privately-owned apartment complexes Neither state nor federal law prohibits a privately-owned apartment complex from renting only to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex. Honorable Paul T. Baade State Representative The Capitol Lansing, Michigan You have asked whether state or federal law prohibits a privately-owned apartment complex from renting only to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex. The Michigan Public Health Code, 1978 PA 368, sections 12601-12617, MCL 333.12601-333.12617 et seq; MSA 14.15(12601)-14.15(12617) et seq, regulate smoking in public places. Section 12601(1)(m) of the Public Health Code 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, home for the aged, nursing home, county medical care facility, hospice, hospital long-term care unit, 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 home for the aged, nursing home, county medical care facility, hospice, or hospital long-term care unit. (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. (2) Public place does not include a private, enclosed room or office occupied exclusively by a smoker, even if the room or enclosed office may be visited by a nonsmoker. The privately-owned apartment complex described in your letter does not fall within the definition of a public place as set forth in section 12601(1)(m) of the Public Health Code. Section 12905(1) of the Public Health Code, MCL 333.12905(1); MSA 14.15(12905)(1), provides: Subject to subsections (2), (3), and (4), a food service establishment with a seating capacity of 50 or more individuals shall post a sign at the entrance to the dining area indicating the availability of a nonsmoking area. Upon the request of a patron, the food service establishment, shall seat the patron in a nonsmoking area which shall be clearly marked by sign. Clearly, the Michigan Legislature has required the separation of smokers and non-smokers in those privately-owned food service establishments with the requisite seating capacity. In addition, it has become common practice for privately-owned motels and hotels to provide smoking and non-smoking floors for their guests, thereby separating smokers and non-smokers. Michigan civil rights laws prohibit discrimination in real estate transactions, including rental transactions. The Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101 et seq; MSA 3.548(101) et seq, section 502 provides, in pertinent part, as follows: A person engaging in a real estate transaction, ... shall not on the basis of religion, race, color, national origin, age, sex, or marital status of a person or a person residing with that person: (a) Refuse to engage in a real estate transaction with a person. The Michigan Handicappers' Civil Rights Act, 1976 PA 220, MCL 37.1101 et seq; MSA 3.550(101) et seq, section 502, is similar to section 502 of 1976 PA 453 except that it prohibits discrimination in a real estate transaction "on the basis of a handicap that is unrelated to the individual's ability to acquire, rent, or maintain property or use by an individual of adaptive devices or aids...." By their terms, there is no violation of either section 502 of 1976 PA 453 or section 502 of 1976 PA 220 unless the refusal to sell, rent, or lease real estate is based upon one or more of the personal characteristics specified by the statutes. Neither of these statutes encompasses any prohibition against the separation of smoking and non-smoking tenants in privately-owned apartment complexes. You have also asked whether these rental restrictions on smokers would violate federal law. The Federal Fair Housing Act, 42 USC 3601, et seq, prohibits discrimination in the sale or rental of a dwelling because of race, color, religion, sex, familial status or national origin. 42 USC 3604. However, similar to Michigan law, the federal statute does not encompass any prohibition against the separation of smoking and non-smoking tenants in privately-owned apartment complexes. It is my opinion, therefore, that neither state nor federal law prohibits a privately-owned apartment complex from renting only to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex. Frank J. Kelley Attorney General