Defendant argues that this reading of 12915 effectively renders the second sentence of this section meaningless. Respectfully, I disagree with the analysis of the majority with regard to whether 12905 alone preempts defendant's smoking ordinance. Generally, a provision of the Public Health Code preempts enactments of local governmental entities only when the local acts are less stringent than those required by the state's health code. Because I read defendant's smoking ordinance to be more stringent than that of the state, I conclude that it is not preempted by 12905. Plaintiffs' argument to the contrary begins with the premise that 12905 guarantees that smoking space be made available, but allows individual food service establishments to reduce that space in their discretion.
Plaintiffs misinterpret the plain intent of the statute.
Section 12905 is intended to guarantee nonsmoking, not smoking, space. The subsections are designed to ensure that nonsmoking areas exist within food service establishments. Accordingly, because defendant's smoking ordinance provides for more, not less, nonsmoking space, it is not preempted by 12905.