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Municipal Law
Update July 29, 2009
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Municipal Law
Practice Group Leader
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Municipal Law
Practice Group
Members
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MICHIGAN
SUPREME COURT AFFIRMS COUNTY SMOKING REGULATIONS
In McNeil v Charlevoix County
(decided July 21, 2009), the Michigan Supreme Court affirmed the
authority of counties to regulate smoking in a variety of
settings. The court's decision may give impetus to smoking
regulations by other counties. It also may give rise to efforts
to provide private causes of action for enforcement of
regulations. Finally, it could give rise to efforts to create
other legal rights for employees that may limit employers' rights to
take employment actions.
A multi-county
health department promulgated an indoor air regulation that was then
approved by each of the boards of commissioners for Antrim,
Charlevoix, Emmet and Otsego counties that included (a) a ban on
smoking in public and private workplaces, (b) a ban on smoking in
business vehicles occupied by more than one person, (c) a requirement
any business' (other than a restaurant's) designated smoking area
must be a separate enclosed area with separate ventilation, and (d)
prohibited employers from taking adverse employment action against an
employee asserting the right to work in a smoke-free
environment. The regulation expressly allowed private citizen
legal action to enforce it. A group of local businesses sued
claiming that the regulation was preempted by Michigan's Clean Indoor
Air Act. MCL 333.12601, et seq.,
and that the regulation restricted employers' rights to take
employment actions interfered with their common-law right to
discharge at-will employees.
The court concluded that a local health department may adopt
regulations necessary to carry out its statutory duties and to
safeguard the public health if the regulations are approved by its
governing body and if the regulation is at least as strict as
existing state law. MCL 333.2435(d); MCL 333.2441(1). The Court
also concluded that "public policy" exceptions to
Michigan's at-will doctrine made the regulation lawful because it
protected employees who exercise a right conferred by law. Suchodolski v Michigan Consolidated Gas,
412 Mich 692, 695-696 (1982).
If you have any questions regarding implementation or
enforcement of a smoking regulations or the impact of this case as it
relates to your community please contact your Clark Hill municipal
attorney.
All articles
are also posted on the Clark Hill Website for future reference and
can be accessed by visiting www.clarkhill.com.
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For further
information about the content of this Municipal Law Update, please
contact Scott
Smith at 616-608-1109. To find out more about
Clark Hill and our Municipal Law team, visit clarkhill.com
or call 800.949.3124
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