By Hirschi H.B. No. 2755
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to public health initiatives to reduce the incidence of
1-3 morbidity and mortality from the use of tobacco products; creating
1-4 offenses and providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subtitle G, Title 2, Health and Safety Code, is
1-7 amended by adding Chapter 146 to read as follows:
1-8 CHAPTER 146. TOBACCO SALES
1-9 Sec. 146.001. DEFINITIONS. In this chapter:
1-10 (1) "Agent" includes employee.
1-11 (2) "Executive director" means the executive director
1-12 of the office.
1-13 (3) "Office" means the office of tobacco products.
1-14 (4) "Original factory-sealed container" does not
1-15 include:
1-16 (A) a carton of cigarettes in packs; or
1-17 (B) any container designed for shipping
1-18 purposes.
1-19 (5) "Person" includes corporation, organization,
1-20 business trust, estate, trust, partnership, association, and any
1-21 other legal entity.
1-22 (6) "Tobacco" includes cigarettes, cigars, chewing
1-23 tobacco, pipe tobacco, and snuff.
2-1 Sec. 146.002. OFFICE OF TOBACCO PRODUCTS. The office of
2-2 tobacco products is in the department.
2-3 Sec. 146.003. EXECUTIVE DIRECTOR. (a) The commissioner
2-4 shall appoint an executive director of the office. The appointment
2-5 shall be made without regard to the race, color, handicap, sex,
2-6 religion, age, or national origin of the appointee.
2-7 (b) The executive director shall administer and enforce all
2-8 laws and rules implemented by the office. The executive director
2-9 shall also:
2-10 (1) issue licenses and permits under this chapter; and
2-11 (2) investigate, in cooperation with other
2-12 authorities, alleged violations of this chapter and Sections
2-13 161.081, 161.082, and 161.083.
2-14 (c) A person is not eligible for appointment as the
2-15 executive director if the person or the person's spouse:
2-16 (1) holds a license or permit issued by the office;
2-17 (2) is employed by or participates in the management
2-18 of a business entity or other organization that holds a license or
2-19 permit issued by the office; or
2-20 (3) owns or controls directly or indirectly more than
2-21 a 10 percent interest in a business entity or other organization
2-22 that holds a license or permit issued by the office.
2-23 Sec. 146.004. SUNSET PROVISION. The office is subject to
2-24 Chapter 325, Government Code (Texas Sunset Act). Unless continued
2-25 in existence by that chapter, the office is abolished and this
3-1 chapter expires September 1, 1997.
3-2 Sec. 146.005. OPEN RECORDS; ADMINISTRATIVE PROCEDURE ACT.
3-3 (a) The office is subject to the open records law, Chapter 424,
3-4 Acts of the 63rd Legislature, Regular Session, 1973 (Article
3-5 6252-17a, Vernon's Texas Civil Statutes), except that files
3-6 relating to an investigation of an alleged violation of this
3-7 chapter or Section 161.081, 161.082, or 161.083 are not subject to
3-8 disclosure.
3-9 (b) The office is subject to the Administrative Procedure
3-10 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
3-11 Statutes).
3-12 Sec. 146.006. PERSONNEL; LIMITATION ON EMPLOYMENT. (a) The
3-13 executive director shall hire the employees of the office.
3-14 (b) A person may not be an employee of the office who is
3-15 exempt from the state's position classification plan or is
3-16 compensated at or above the amount prescribed by the General
3-17 Appropriations Act for step 1, salary group 17, of the position
3-18 classification salary schedule if the person or the person's spouse
3-19 is an officer, manager, or paid consultant of a Texas trade
3-20 association in tobacco manufacturing or vending.
3-21 (c) For the purposes of this section, a Texas trade
3-22 organization is a nonprofit, cooperative, and voluntarily joined
3-23 association of business or professional competitors in this state
3-24 that is designed to assist its members and its industry or
3-25 profession in dealing with mutual business or professional problems
4-1 and in promoting their common interest.
4-2 Sec. 146.007. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
4-3 (a) The office shall prepare information of public interest
4-4 describing the functions of the office and the procedures by which
4-5 complaints are filed with and resolved by the office. The office
4-6 shall make the information available to the public and appropriate
4-7 state agencies.
4-8 (b) The office shall establish methods by which consumers
4-9 are notified of the name, mailing address, and telephone number of
4-10 the office for the purpose of directing complaints to the office.
4-11 The office may provide for that notification on a sign prominently
4-12 displayed in the place of business of each person licensed by the
4-13 office.
4-14 (c) The office shall keep an information file about each
4-15 complaint filed with the office that the office has authority to
4-16 investigate or resolve. If a written complaint is filed with the
4-17 office that the office has authority to investigate or resolve, the
4-18 office, at least quarterly and until final disposition of the
4-19 complaint, shall notify the parties to the complaint of the status
4-20 of the complaint unless notice would jeopardize an undercover
4-21 investigation.
4-22 Sec. 146.008. ACCOUNT; AUDIT. (a) The tobacco licensing
4-23 account is created in the general revenue fund to be used by the
4-24 office in the administration of this chapter. Fees received by the
4-25 office under this chapter shall be deposited in the state treasury
5-1 to the credit of the tobacco licensing account.
5-2 (b) The transactions of the office are subject to audit by
5-3 the state auditor in accordance with Chapter 321, Government Code.
5-4 Sec. 146.009. SALES LICENSE REQUIRED. (a) Except as
5-5 provided by Subsections (b), (c), (d), and (e) of this section and
5-6 Section 146.010, a person may not sell tobacco unless the person
5-7 holds a sales license issued under this chapter.
5-8 (b) An agent of a person who holds a sales license under
5-9 this chapter may sell tobacco.
5-10 (c) An individual may sell tobacco to a person with whom the
5-11 individual has a familial or social relationship, if the transfer
5-12 occurs on property that is not open to the public.
5-13 (d) A manufacturer of tobacco may sell tobacco to:
5-14 (1) a wholesaler of tobacco; or
5-15 (2) a person who holds a sales license or vending
5-16 machine permit under this chapter.
5-17 (e) A wholesaler of tobacco may sell tobacco to a person who
5-18 holds a sales license or vending machine permit under this chapter.
5-19 (f) A person shall obtain a separate sales license for each
5-20 location at which the person sells tobacco.
5-21 Sec. 146.010. VENDING MACHINE PERMIT REQUIRED. (a) A
5-22 person may not sell cigarettes through a cigarette vending machine
5-23 unless the person holds a permit for the machine.
5-24 (b) A person shall obtain a separate vending machine permit
5-25 for each machine through which the person sells cigarettes. The
6-1 permit must specify the location at which the machine may be
6-2 operated. The machine may not be operated at another location
6-3 until a new permit is obtained.
6-4 Sec. 146.011. LICENSE OR PERMIT APPLICATION; FEES;
6-5 EXAMINATION OF BOOKS. (a) An applicant for a sales license or
6-6 vending machine permit under this chapter must file a written
6-7 application with the office on a form prescribed by the office.
6-8 (b) An application must be accompanied by the appropriate
6-9 fee. The fee for an initial sales license or vending machine
6-10 permit is the amount, not to exceed $300, set by the executive
6-11 director.
6-12 (c) The fee for the renewal of a sales license under this
6-13 chapter is:
6-14 (1) $50, if the applicant's gross retail sales of
6-15 tobacco at the location for which the license is sought were less
6-16 than $5,000 in the preceding year; or
6-17 (2) $300, if the applicant's gross retail sales of
6-18 tobacco at the location for which the license is sought were $5,000
6-19 or more in the preceding year.
6-20 (d) The fee for the renewal of a vending machine permit
6-21 under this chapter is:
6-22 (1) $50, if the applicant's gross retail sales of
6-23 cigarettes from the machine for which the permit is sought were
6-24 less than $5,000 in the preceding year; or
6-25 (2) $300, if the applicant's gross retail sales of
7-1 cigarettes from the machine for which the permit is sought were
7-2 $5,000 or more in the preceding year.
7-3 (e) The executive director may enter the premises of an
7-4 applicant, sales license holder or vending machine permit holder or
7-5 any other necessary premises to examine the person's books to
7-6 determine the amount of retail sales of tobacco by the person in
7-7 the preceding year.
7-8 (f) For purposes of this section, the retail sales price of
7-9 tobacco includes all federal, state, and local taxes paid on the
7-10 tobacco.
7-11 Sec. 146.012. LICENSE OR PERMIT ISSUANCE. Unless the
7-12 executive director finds that grounds for denial of a sales license
7-13 or vending machine permit exist under Section 146.019, the
7-14 executive director shall issue a sales license or vending machine
7-15 permit to an applicant who pays the required fees.
7-16 Sec. 146.013. DISPLAY OF LICENSE OR PERMIT; CONSUMER
7-17 COMPLAINT NOTICE. (a) A sales license holder must display the
7-18 license in a conspicuous place in the location for which the
7-19 license is issued.
7-20 (b) A vending machine permit holder must display the permit
7-21 on the front of the machine for which the permit was issued.
7-22 (c) A license or permit holder must prominently display, in
7-23 the location for which the license or permit was issued, a sign
7-24 provided by the office that contains the name, mailing address, and
7-25 telephone number of the office and a statement informing consumers
8-1 that a complaint against a license or permit holder may be directed
8-2 to the office.
8-3 (d) A sales license holder who violates Subsection (a) of
8-4 this section or a vending machine permit holder who violates
8-5 Subsection (b) of this section is subject to an administrative
8-6 penalty under Section 146.017.
8-7 Sec. 146.014. EXPIRATION OF LICENSES AND PERMITS.
8-8 (a) Unless the executive director adopts an alternative expiration
8-9 date system as provided by Section 146.015, a sales license or
8-10 vending machine permit issued under this chapter expires on the
8-11 first anniversary of the date of issuance. A license or permit
8-12 holder may renew an unexpired license by paying the renewal fee
8-13 before the expiration date of the license or permit. The
8-14 executive director shall issue a new license or permit to the
8-15 license or permit holder at the time of the renewal.
8-16 (b) If a person's license or permit has expired, the person
8-17 may renew the license or permit by paying the unpaid renewal fees
8-18 plus a late renewal fee in an amount determined by the executive
8-19 director.
8-20 (c) The executive director shall notify each license and
8-21 permit holder in writing of the pending expiration not later than
8-22 the 30th day before the date on which the license or permit
8-23 expires.
8-24 Sec. 146.015. ALTERNATIVE EXPIRATION DATE SYSTEM. (a) The
8-25 office may adopt a system under which licenses or permits expire on
9-1 various dates during the year.
9-2 (b) For the year in which the license or permit expiration
9-3 date is changed, fees payable on the date of issuance shall be
9-4 prorated on a monthly basis, so that each license or permit holder
9-5 pays only that portion of the fee that is allocable to the number
9-6 of months during which the license or permit is valid.
9-7 (c) On renewal of the license or permit on the new
9-8 expiration date, the total renewal fee is payable.
9-9 Sec. 146.016. PROHIBITED ACTS. A sales license holder may
9-10 not:
9-11 (1) sell tobacco in a form other than in an original
9-12 factory-sealed container;
9-13 (2) operate or permit another to operate a cigarette
9-14 vending machine at a location at which the license holder sells
9-15 tobacco; or
9-16 (3) sell tobacco at a location other than one for
9-17 which the license holder has obtained a license.
9-18 Sec. 146.017. ADMINISTRATIVE PENALTY. (a) If the office
9-19 determines that a sales license or vending machine permit holder or
9-20 an agent of a license or permit holder has violated Section
9-21 146.013(a) or (b), 146.016, 161.081, 161.082, or 161.083, the
9-22 office may assess an administrative penalty against the license or
9-23 permit holder.
9-24 (b) An administrative penalty for a violation of Section
9-25 146.013(a) or (b) or 161.082 may not exceed $100.
10-1 (c) An administrative penalty for a violation of Section
10-2 146.016, 161.081, or 161.083 may not exceed:
10-3 (1) $100 for a first violation;
10-4 (2) $250 for a second violation, if the second
10-5 violation occurs not later than two years after the date of the
10-6 first violation;
10-7 (3) $500 for a third violation, if the third violation
10-8 occurs not later than two years after the date of the first
10-9 violation; or
10-10 (4) $1,000 for a subsequent violation, if the
10-11 subsequent violation occurs not later than two years after the date
10-12 of the first violation.
10-13 (d) If, after examination of a possible violation and the
10-14 facts relating to the possible violation, the office concludes a
10-15 violation has occurred, the office shall issue a preliminary report
10-16 that states the fact on which the conclusion is based, the fact
10-17 that an administrative penalty is to be assessed, and the amount to
10-18 be assessed. Not later than the 10th day after the day that the
10-19 office issues the preliminary report, the office shall send a copy
10-20 of the report to the license or permit holder charged with the
10-21 violation, together with a statement of the right of the person to
10-22 a hearing relating to the alleged violation and the amount of the
10-23 penalty.
10-24 (e) Not later than the 20th day after the date on which the
10-25 report is sent, the license or permit holder may make a written
11-1 request for a hearing or remit the amount of the administrative
11-2 penalty to the office. A license or permit holder waives the right
11-3 to a hearing if the person fails to either request a hearing or
11-4 remit the amount of the penalty within the time prescribed by this
11-5 subsection.
11-6 (f) A hearing under this section shall be conducted in
11-7 compliance with the Administrative Procedure and Texas Register Act
11-8 (Article 6252-13a, Vernon's Texas Civil Statutes).
11-9 (g) An administrative penalty owed under this section may be
11-10 recovered in a civil action brought by the attorney general at the
11-11 request of the office.
11-12 (h) A penalty collected under this section shall be
11-13 deposited in the state treasury to the credit of the general
11-14 revenue fund.
11-15 (i) A person who pays a penalty under this section is not
11-16 subject to any other civil or criminal penalty for the same
11-17 violation.
11-18 Sec. 146.018. CRIMINAL PENALTY. (a) A person commits an
11-19 offense if the person intentionally or knowingly violates Section
11-20 146.009, 146.010, or 146.016. An offense under this section is a
11-21 Class C misdemeanor.
11-22 (b) A person who pays a fine under this section is not
11-23 subject to any other civil or criminal penalty for the same
11-24 violation.
11-25 (c) A court that convicts a person under this section or
12-1 Section 161.081, 161.082, or 161.083 shall notify the office in
12-2 writing of the conviction.
12-3 Sec. 146.019. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE
12-4 OR PERMIT. (a) After a hearing, the office may deny, suspend, or
12-5 revoke a sales license or vending machine permit if the applicant
12-6 or the license or permit holder has:
12-7 (1) been convicted of a felony or a misdemeanor
12-8 involving moral turpitude;
12-9 (2) obtained or attempted to obtain a license or
12-10 permit by fraud or deception; or
12-11 (3) violated a provision of this chapter or Section
12-12 161.081, 161.082, or 161.083.
12-13 (b) The office shall suspend a sales license for:
12-14 (1) seven days, if the sales license holder has been
12-15 convicted of or paid an administrative penalty for the second
12-16 violation of Section 146.016, 161.081, or 161.083 in a two-year
12-17 period;
12-18 (2) not less than one month or more than six months,
12-19 if the sales license holder has been convicted of or paid an
12-20 administrative penalty for the third violation of Section 146.016,
12-21 161.081, or 161.083 in a two-year period; or
12-22 (3) not less than nine months or for the remainder of
12-23 the term of the license, if the license holder has been convicted
12-24 of or paid an administrative penalty for a fourth or subsequent
12-25 violation of Section 146.016, 161.081, or 161.083 in a two-year
13-1 period.
13-2 (c) If a license holder has been convicted of or paid an
13-3 administrative penalty for a fourth or subsequent violation of
13-4 Section 146.016, 161.081, or 161.083 in a two-year period, the
13-5 office may revoke the sales license and may deny the person a new
13-6 license for not more than 18 months after the date the license was
13-7 revoked.
13-8 (d) If a sales license holder has been convicted of or paid
13-9 an administrative penalty for three or more violations of Section
13-10 146.016, 161.081, or 161.083 in a two-year period and the
13-11 violations occurred at three or more retail outlets owned or
13-12 operated by the license holder, each license held by the person
13-13 shall be suspended or revoked as provided by Subsection (b) or (c)
13-14 of this section.
13-15 (e) For purposes of Subsections (b), (c), and (d) of this
13-16 section, a violation committed by an agent of a sales license
13-17 holder that is attributed to the license holder constitutes one
13-18 violation.
13-19 Sec. 146.020. AFFIRMATIVE DEFENSE. (a) It is an
13-20 affirmative defense to prosecution or imposition of an
13-21 administrative penalty for a violation of Section 146.016, 161.081,
13-22 or 161.083 or to suspension or revocation of a sales license that:
13-23 (1) the violation was committed by an agent of the
13-24 sales license holder; and
13-25 (2) the sales license holder has in place an effective
14-1 system to prevent violations by the holder's agents.
14-2 (b) A sales license holder is not entitled to the
14-3 affirmative defense provided by this section if the license holder
14-4 has successfully relied on the defense in the preceding two years.
14-5 SECTION 2. The heading of Subchapter H, Chapter 161, Health
14-6 and Safety Code, is amended to read as follows:
14-7 SUBCHAPTER H. SALE OF CIGARETTES OR TOBACCO PRODUCTS
14-8 <TO MINORS>
14-9 SECTION 3. Subchapter H, Chapter 161, Health and Safety
14-10 Code, is amended by adding Section 161.083 to read as follows:
14-11 Sec. 161.083. LOCATION OF VENDING MACHINES CONTAINING
14-12 TOBACCO PRODUCTS. (a) Except as provided by Subsection (b), a
14-13 person may not install or maintain a vending machine containing
14-14 tobacco products in a place accessible to the public.
14-15 (b) Subsection (a) does not apply to:
14-16 (1) a bar, lounge, or other similar place that
14-17 primarily sells or serves alcoholic beverages for on-premises
14-18 consumption; or
14-19 (2) private facilities or private businesses not open
14-20 to the public.
14-21 (c) A person commits an offense if the person violates
14-22 Subsection (a). An offense under this subsection is a Class C
14-23 misdemeanor.
14-24 SECTION 4. Subtitle H, Title 2, Health and Safety Code, is
14-25 amended by adding Chapter 164 to read as follows:
15-1 CHAPTER 164. SMOKING IN PUBLIC
15-2 Sec. 164.001. PURPOSE. The purpose of this chapter is to
15-3 protect the public health, comfort, and environment by prohibiting
15-4 smoking in public places and at public meetings except in
15-5 designated smoking areas.
15-6 Sec. 164.002. DEFINITIONS. In this chapter:
15-7 (1) "Bar" includes:
15-8 (A) an area of a restaurant, excluding a dining
15-9 area, that is primarily devoted to the serving of alcoholic
15-10 beverages for consumption by guests on the premises and in which
15-11 food service, if any, is only incidental to the consumption of
15-12 those beverages; or
15-13 (B) all areas of an establishment in which more
15-14 than 50 percent of its annual gross sales is from the sale of
15-15 alcoholic beverages for on-premises consumption.
15-16 (2) "Employee" means a person who is employed by an
15-17 employer in consideration for monetary compensation or profit.
15-18 (3) "Employer" means a person, partnership,
15-19 corporation, association, or other entity that employs one or more
15-20 persons.
15-21 (4) "Place of employment" means an enclosed, indoor
15-22 area under the control of an employer to which employees have
15-23 access during the course of employment and includes work areas,
15-24 employee lounges, employee rest rooms, conference rooms, and
15-25 employee cafeterias. The term does not include a private
16-1 residence.
16-2 (5) "Public meeting" means a meeting open to the
16-3 public and held in an enclosed area unless the meeting is held in a
16-4 private residence.
16-5 (6) "Public place" means an enclosed, indoor area that
16-6 is used by the public or that serves as a workplace and includes:
16-7 (A) all or part of a building used for state or
16-8 local governmental purposes;
16-9 (B) a retail store, office, or other commercial
16-10 establishment;
16-11 (C) a grocery store;
16-12 (D) a restaurant or cafeteria;
16-13 (E) a public primary or secondary school;
16-14 (F) a public institution of higher education;
16-15 (G) a school bus;
16-16 (H) a rest room;
16-17 (I) a health care facility;
16-18 (J) a theater, movie house, auditorium, or
16-19 arena;
16-20 (K) an elevator;
16-21 (L) a public means of mass transportation,
16-22 including associated terminals;
16-23 (M) a courtroom;
16-24 (N) a jury waiting or deliberation room;
16-25 (O) a library;
17-1 (P) a child care nursery;
17-2 (Q) a recreational facility;
17-3 (R) a place of employment;
17-4 (S) a place providing personal services; or
17-5 (T) a service line, cashier area,
17-6 over-the-counter sales area, or common traffic area.
17-7 (7) "Smoke," "smokes," or "smoking" includes:
17-8 (A) carrying or holding a lighted pipe, cigar,
17-9 or cigarette of any kind or any other lighted smoking equipment or
17-10 device;
17-11 (B) lighting a pipe, cigar, or cigarette of any
17-12 kind or any other smoking equipment or device; or
17-13 (C) emitting or exhaling the smoke of a pipe,
17-14 cigar, or cigarette of any kind or any other smoking equipment or
17-15 device.
17-16 Sec. 164.003. SMOKING AT PUBLIC MEETING OR IN PUBLIC PLACE;
17-17 CRIMINAL PENALTY. (a) A person commits an offense if the person
17-18 smokes at a public meeting or in a public place and the person is
17-19 not in an area designated as a smoking area under Section 164.004.
17-20 (b) It is an exception to the application of Subsection (a)
17-21 that the person is smoking:
17-22 (1) in a situation in which the person is present at
17-23 an event in which an entire room or hall is used for a private
17-24 social function and seating arrangements are under the control of
17-25 the sponsor of the function and not of the proprietor or person in
18-1 charge of the place;
18-2 (2) in a public place for which a waiver has been
18-3 granted under Section 164.008(b); or
18-4 (3) as a participant in an authorized theatrical
18-5 performance.
18-6 (c) An offense under this section is a Class C misdemeanor,
18-7 unless it is shown on the trial of the defendant that the defendant
18-8 has been convicted one or more times within five years before the
18-9 trial date of a violation of this section, in which event the
18-10 offense is punishable by a fine not to exceed $1,000.
18-11 Sec. 164.004. DESIGNATION OF SMOKING AREAS. (a) Except as
18-12 provided by Subsection (e), a proprietor or person in charge of a
18-13 public place who desires to permit persons in the public place to
18-14 smoke shall designate areas as smoking areas. If the public place
18-15 is a government building, the governmental entity responsible for
18-16 managing and maintaining the building may designate areas as
18-17 smoking areas.
18-18 (b) The proprietor or person in charge is not required to
18-19 make structural or physical modifications to accommodate the
18-20 smoking areas, but existing physical barriers and ventilation
18-21 systems shall be used to minimize the effect of smoke in adjacent
18-22 nonsmoking areas.
18-23 (c) Each employer who operates a place of employment shall
18-24 develop, implement, and maintain a written smoking policy that
18-25 accommodates the wishes of smoking and nonsmoking employees by
19-1 designating smoking and nonsmoking areas. If a dispute arises, the
19-2 preferences of nonsmokers shall be accommodated. This chapter does
19-3 not prohibit an employer from designating a place of employment in
19-4 its entirety as a nonsmoking area.
19-5 (d) The proprietor or person in charge of a restaurant that
19-6 has a seating capacity of more than 25 persons shall designate a
19-7 smoking area proportionate in size to the number of customers
19-8 normally requesting a smoking area. This chapter does not prohibit
19-9 a proprietor or person in charge from designating a restaurant in
19-10 its entirety as a nonsmoking area.
19-11 (e) Except as provided by Subsection (f), a smoking area may
19-12 not be designated in:
19-13 (1) a common work area in which work stations are
19-14 divided by partial walls;
19-15 (2) an elevator;
19-16 (3) a school bus;
19-17 (4) a public means of mass transportation;
19-18 (5) a rest room;
19-19 (6) a service line, cashier area, over-the-counter
19-20 sales area, or common traffic area; or
19-21 (7) a place in which smoking is prohibited by the fire
19-22 marshal of the state or a political subdivision or by other law,
19-23 ordinance, or rule.
19-24 (f) Subsection (e) does not apply to a service line, cashier
19-25 area, over-the-counter sales area, or common traffic area in a
20-1 sports or entertainment facility with a capacity of more than
20-2 5,000.
20-3 (g) No place other than a restaurant with a seating capacity
20-4 of 25 customers or fewer, a grocery store with less than 4,000
20-5 square feet of retail floor space, a bar, or a retail store that
20-6 primarily sells tobacco may be designated as a smoking area in its
20-7 entirety. If a restaurant, grocery store, bar, or tobacco store is
20-8 designated as a smoking area in its entirety, that fact shall be
20-9 posted conspicuously at each entrance to the premises.
20-10 Sec. 164.005. SIGNS. (a) A proprietor or person in charge
20-11 of a public place shall place signs visible at each entrance to the
20-12 premises to notify persons entering the premises that smoking is
20-13 prohibited or that smoking is prohibited except in areas designated
20-14 as smoking areas.
20-15 (b) A proprietor or person in charge of a public place shall
20-16 post in a conspicuous place in any area designated as a smoking
20-17 area signs stating that smoking is permitted in the area. The
20-18 proprietor or person in charge may post signs in the premises
20-19 stating "No Smoking" or "No Smoking Except in Designated Areas" as
20-20 appropriate.
20-21 Sec. 164.006. REASONABLE EFFORT TO PREVENT SMOKING. (a) A
20-22 proprietor or person in charge of a public place shall make a
20-23 reasonable effort to prevent smoking by:
20-24 (1) designating any areas where smoking will be
20-25 permitted as required by Section 164.004;
21-1 (2) posting signs as required by Section 164.005; and
21-2 (3) asking smokers to refrain from smoking in all
21-3 nonsmoking areas on request of a client, patron, or employee
21-4 suffering discomfort from the smoke.
21-5 (b) If a smoker refuses to comply with a request to refrain
21-6 from smoking, an affected person may bring an action as provided by
21-7 Section 164.009.
21-8 Sec. 164.007. FACILITIES TO EXTINGUISH SMOKING MATERIALS.
21-9 (a) All public conveyances and public places shall be equipped
21-10 with facilities for extinguishing smoking materials.
21-11 (b) Facilities for extinguishing smoking materials that are
21-12 located in areas of public places other than designated smoking
21-13 areas shall be accompanied by clearly visible signs stating "No
21-14 Smoking."
21-15 Sec. 164.008. ADMINISTRATION; WAIVER. (a) The board shall
21-16 adopt rules necessary under this chapter and shall implement and
21-17 determine compliance with this chapter.
21-18 (b) The commissioner may, on request of a proprietor or
21-19 person in charge of a public place, waive the requirements of this
21-20 chapter if the commissioner determines that there are compelling
21-21 reasons to do so and the waiver will not significantly affect the
21-22 health and comfort of nonsmokers.
21-23 Sec. 164.009. INJUNCTION. The board, a local governmental
21-24 entity, or any affected person may bring an action in any court of
21-25 competent jurisdiction to enjoin a violation of this chapter.
22-1 Sec. 164.010. LOCAL ORDINANCES. This chapter does not
22-2 prohibit a political subdivision from adopting a more stringent
22-3 ordinance that regulates or prohibits smoking at a public meeting
22-4 or in a public place.
22-5 SECTION 5. Section 48.01, Penal Code, is repealed.
22-6 SECTION 6. (a) Except as provided by Subsections (b), (c),
22-7 and (d) of this section, this Act takes effect September 1, 1993.
22-8 (b) A person is not required to hold a license to sell
22-9 tobacco or a permit to operate a cigarette vending machine under
22-10 Chapter 146, Health and Safety Code, as added by this Act, before
22-11 January 1, 1994.
22-12 (c) Subsection (a), Section 146.009, Subsection (a), Section
22-13 146.010, Section 146.016, and Section 146.018, Health and Safety
22-14 Code, as added by Section 1 of this Act, and Subsection (c),
22-15 Section 161.083, Health and Safety Code, as added by Section 3 of
22-16 this Act, take effect January 1, 1994.
22-17 (d) Sections 4 and 10 of this Act take effect January 1,
22-18 1994.
22-19 SECTION 7. Each employer required to adopt a written smoking
22-20 policy under Subsection (c), Section 164.004, Health and Safety
22-21 Code, as added by Section 4 of this Act, shall adopt the policy:
22-22 (1) not later than March 31, 1994, if the business was
22-23 established before January 1, 1994; or
22-24 (2) not later than 90 days after the date on which the
22-25 business begins to operate if the business is established on or
23-1 after January 1, 1994.
23-2 SECTION 8. The repeal of Section 48.01, Penal Code, as
23-3 provided in Section 10 of this Act, does not apply to an offense
23-4 committed under that section before January 1, 1994. An offense
23-5 committed before that date is covered by that section as it existed
23-6 on the date on which the offense was committed, and the former law
23-7 is continued in effect for that purpose.
23-8 SECTION 9. The importance of this legislation and the
23-9 crowded condition of the calendars in both houses create an
23-10 emergency and an imperative public necessity that the
23-11 constitutional rule requiring bills to be read on three several
23-12 days in each house be suspended, and this rule is hereby suspended.