Michigan Restaurant Ass'n v. City of Marquette
Michigan Restaurant Ass'n v. City of Marquette
Opinion of the Court
This case involves an amendment of a Marquette city ordinance. The amendment placed a total ban on smoking in restaurants. Plaintiffs argued that the amendment was in conflict with a state statute governing nonsmoking seating in food service establishments and sought to regulate an area already preempted by state law. The trial court agreed and granted summary disposition in favor of plaintiffs under MCR 2.116(C)(10). Defendant appeals as of right. We affirm.
The state statute in question, MCL 333.12905(2) mandates the maximum number of smoking seats a food service establishment may maintain:
Subject to subsection (3), a food service establishment with a seating capacity of fewer than 50, whether or not it is owned and operated by a private club, and a food service establishment that is owned and operated by a private club may designate up to 75% of its seating capacity as seating for smokers. A food service establishment with a seating capacity of 50 or more that is not owned or operated by a private club may designate up to 50% of its seating capacity as seating for smokers. A food service establishment that designates seating for smokers shall clearly identify the seats for nonsmokers as nonsmoking, place the seats for nonsmokers in close proximity to each other, and locate the seats for nonsmokers so as not to discriminate against nonsmokers.
The ordinance at issue in this case places a complete ban on smoking in restaurants in the city of Marquette. Marquette, as a Michigan home rule city, is subject to the constitution and general laws of this state. People v Llewellyn, 401 Mich 314, 321, n 1; 257 NW2d 902 (1977).
*66 A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation. [Id. at 322.]
In order to determine whether the Marquette ordinance is in conflict with a state statute, this Court must examine whether the ordinance banning smoking in restaurants is inconsistent with or an extension of what the Legislature intended. In essence, to determine whether a direct conflict exists, this Court must consider whether the ordinance prohibits what state law permits. Detroit City Council v Stecher, 430 Mich 74, 89; 421 NW2d 544 (1988), citing Builder’s Ass’n v Detroit, 295 Mich 272, 277; 294 NW 677 (1940); Miller v Fabius Twp Bd, 366 Mich 250, 258; 114 NW2d 205 (1962).
In Miller, a determining factor for deciding whether a local ordinance was preempted by state law was whether the area regulated by the ordinance was local in nature as opposed to a general statewide issue. The local ordinance in Miller prohibited water skiing between 4 p.m. and 10 am., but the state had passed a statute prohibiting water skiing between one hour after sunset and one hour before sunrise. Miller, supra at 259. Our Supreme Court held that the ordinance was not preempted by state statute because the local ordinance added to the state regulation and was not in conflict with state law. Id. The Miller Court reasoned that certain problems affecting specific inland lakes differ, “such as the number of boat users on the lake; the amount of fishing on the lake;
To determine whether a conflict exists, this Court must also ascertain if the ordinance is merely an extension of state law. Id. In Miller, the local ordinance increased the time when water skiing was prohibited rather than prohibiting water siding on certain lakes altogether. Id. at 258-259. The Miller Court analogized this principle to traffic ordinances of a city and the state traffic statutes because densely populated areas of a city with a large number of cars require greater regulation than rural communities and thus the extension of state regulation by local ordinance is appropriate. Id. at 259. The Marquette ordinance does something more than expanding the state statute to make it more stringent. The ordinance creates a general prohibition on smoking as opposed to, for example, creating a higher percentage of nonsmoking tables.
In Detroit v Qualls, 434 Mich 340, 363; 454 NW2d 374 (1990), our Supreme Court stated that whether the problem to be regulated was local in character determined whether the area was preempted by state law. In Qualls, the defendant operated a retail fireworks business in the city of Detroit. Id. at 345. The city of Detroit brought suit against the defendant for forfeiture of the fireworks and argued that the defen
Defendant argues that the nonsmoking ordinance is not preempted because MCL 333.12915 does not preempt every local ordinance regulating food service establishments, but only those in conflict with the state health code. However, this argument fails because MCL 333.12905 directly addresses smoking and nonsmoking seats in restaurants by requiring a certain number of seats to be nonsmoking seating. “[W]here the state law expressly provides that the state’s authority to regulate a specified area of the law is to be exclusive, there is no doubt that municipal regulation is preempted.” Llewellyn, supra at 323,
MCL 333.12915 states:
A county, city, village, or township shall not regulate those aspects of food service establishments or vending machines which are subject to regulation under this part except to the extent necessary to carry out the responsibility of a local health department pursuant to sections 12906 and 12908. This part shall not relieve the applicant for a license or a licensee from responsibility for securing a local permit or complying with applicable local codes, regulations, or ordinances not in conflict with this part. [Emphasis added.]
The difficulty in assessing the meaning of the statute lies in reconciling the first and second sentences of MCL 333.12915. When reading the first part, prohibiting municipalities from enacting ordinances in areas “subject to state regulation,” in conjunction with the second part, allowing “local codes, regulations or ordinances not in conflict” with the health code, it is clear that to withstand this statute, a local ordinance must both address an area not preempted by state statute and be in accordance with the state statute. The Marquette ordinance falls short of both prongs of this standard because it involves an area already specifically covered by state statute and it directly opposes what the state statute specifically allows.
Defendant contends that the statutes should be construed liberally. Defendant argues that because the Marquette ordinance merely expanded the state regulation of smoking in food service establishments, it is not in conflict with state law and is therefore not preempted. Defendant further avers that legislative history should be taken into account when deciding
Affirmed.
Concurring in Part
(concurring in part and dissenting in part). Because MCL 333.12915 (hereinafter § 12915) requires preemption of defendant’s smoking ordinance, I join with the majority in affirming the decision of the trial court. Section 12915 of the Public Health Code provides:
A county, city, village, or township shall not regulate those aspects of food service establishments or vending machines which are subject to regulation under this part except to the extent necessary to carry out the responsibility of a local health department pursuant to sections 12906 and 12908. This part shall not relieve the applicant for a license or a licensee from responsibility for securing a local permit or complying with applicable local codes, regulations, or ordinances not in conflict with this part.
In the first sentence, this statute plainly states that the provisions contained in this part preempt any attempts at further regulation by local governmental entities. MCL 333.12905 (hereinafter § 12905), which is a provision of the part controlled by § 12915, regulates the same area as that addressed by defendant’s smoking ordinance. Therefore, defendant’s ordinance is preempted.
Defendant argues that this reading of § 12915 effectively renders the second sentence of this section meaningless. This argument is without merit because the second sentence addresses only local enactments “not in conflict with this part.” Because this part of the Public Health Code does not occupy the entire field of regulations applicable to food service establishments, the second sentence has meaning in relation to those areas that are not addressed.
Respectfully, I disagree with the analysis of the majority with regard to whether § 12905 alone
Reference
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- Michigan Restaurant Association v. City of Marquette
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- Published