By: Wentworth S.B. No. 414
73R1324 KLL-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to minimum standards for smoking in public places or at
1-3 public meetings; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle H, Title 2, Health and Safety Code, is
1-6 amended by adding Chapter 164 to read as follows:
1-7 CHAPTER 164. SMOKING IN PUBLIC
1-8 Sec. 164.001. PURPOSE. The purpose of this chapter is to
1-9 protect the public health, comfort, and environment by prohibiting
1-10 smoking in public places and at public meetings except in
1-11 designated smoking areas.
1-12 Sec. 164.002. DEFINITIONS. In this chapter:
1-13 (1) "Public meeting" means a meeting open to the
1-14 public and held in an enclosed area unless the meeting is held in a
1-15 private residence.
1-16 (2) "Public place" means an enclosed, indoor area that
1-17 is used by the public or that serves as a workplace, and includes:
1-18 (A) all or part of a building used for state or
1-19 local governmental purposes;
1-20 (B) a retail store, office, or other commercial
1-21 establishment;
1-22 (C) a grocery store;
1-23 (D) a restaurant or cafeteria;
1-24 (E) a public primary or secondary school;
2-1 (F) a public institution of higher education;
2-2 (G) a school bus;
2-3 (H) a rest room;
2-4 (I) a health care facility;
2-5 (J) a theater, movie house, auditorium, or
2-6 arena;
2-7 (K) an elevator;
2-8 (L) a public means of mass transportation,
2-9 including associated terminals;
2-10 (M) a courtroom;
2-11 (N) a jury waiting or deliberation room;
2-12 (O) a library;
2-13 (P) a child care nursery;
2-14 (Q) a recreational facility;
2-15 (R) a place of employment;
2-16 (S) a place providing personal services; or
2-17 (T) a service line, cashier area,
2-18 over-the-counter sales area, or common traffic area.
2-19 (3) "Smoke," "smokes," or "smoking" includes:
2-20 (A) carrying or holding a lighted pipe, cigar,
2-21 or cigarette of any kind or any other lighted smoking equipment or
2-22 device;
2-23 (B) lighting a pipe, cigar, or cigarette of any
2-24 kind or any other smoking equipment or device; or
2-25 (C) emitting or exhaling the smoke of a pipe,
2-26 cigar, or cigarette of any kind or any other smoking equipment or
2-27 device.
3-1 (4) "Employee" means a person who is employed by an
3-2 employer in consideration for monetary compensation or profit.
3-3 (5) "Employer" means a person, partnership,
3-4 corporation, association, or other entity that employs one or more
3-5 persons.
3-6 (6) "Place of employment" means an enclosed, indoor
3-7 area under the control of an employer to which employees have
3-8 access during the course of employment and includes work areas,
3-9 employee lounges, employee rest rooms, conference rooms, and
3-10 employee cafeterias. The term does not include a private
3-11 residence.
3-12 (7) "Bar" includes:
3-13 (A) an area of a restaurant, excluding a dining
3-14 area, that is primarily devoted to the serving of alcoholic
3-15 beverages for consumption by guests on the premises and in which
3-16 food service, if any, is only incidental to the consumption of
3-17 those beverages; or
3-18 (B) all areas of an establishment in which more
3-19 than 50 percent of its annual gross sales is from the sale of
3-20 alcoholic beverages for on-premises consumption.
3-21 Sec. 164.003. SMOKING AT PUBLIC MEETING OR IN PUBLIC PLACE;
3-22 CRIMINAL PENALTY. (a) A person commits an offense if the person
3-23 smokes at a public meeting or in a public place and the person is
3-24 not in an area designated as a smoking area under Section 164.004.
3-25 (b) It is an exception to the application of Subsection (a)
3-26 that the person is smoking:
3-27 (1) in a situation in which the person is present at
4-1 an event in which an entire room or hall is used for a private
4-2 social function and seating arrangements are under the control of
4-3 the sponsor of the function and not of the proprietor or person in
4-4 charge of the place;
4-5 (2) in a public place for which a waiver has been
4-6 granted under Section 164.008(b); or
4-7 (3) as a participant in an authorized theatrical
4-8 performance.
4-9 (c) An offense under this section is a Class C misdemeanor,
4-10 unless it is shown on the trial of the defendant that the defendant
4-11 has been convicted one or more times within five years before the
4-12 trial date of a violation of this section, in which event the
4-13 offense is punishable by a fine not to exceed $500.
4-14 Sec. 164.004. DESIGNATION OF SMOKING AREAS. (a) Except as
4-15 provided by Subsection (e), a proprietor or person in charge of a
4-16 public place who desires to permit persons in the public place to
4-17 smoke shall designate areas as smoking areas. If the public place
4-18 is a government building, the governmental entity responsible for
4-19 managing and maintaining the building may designate areas as
4-20 smoking areas.
4-21 (b) The proprietor or person in charge is not required to
4-22 make structural or physical modifications to accommodate the
4-23 smoking areas, but existing physical barriers and ventilation
4-24 systems shall be used to minimize the effect of smoke in adjacent
4-25 nonsmoking areas.
4-26 (c) Each employer who operates a place of employment shall
4-27 develop, implement, and maintain a written smoking policy that
5-1 accommodates the wishes of smoking and nonsmoking employees by
5-2 designating smoking and nonsmoking areas. If a dispute arises, the
5-3 preferences of nonsmokers shall be accommodated. This chapter does
5-4 not prohibit an employer from designating a place of employment in
5-5 its entirety as a nonsmoking area.
5-6 (d) The proprietor or person in charge of a restaurant
5-7 shall designate at least 50 percent of the area as a nonsmoking
5-8 area. This chapter does not prohibit a proprietor or person in
5-9 charge from designating a restaurant in its entirety as a
5-10 nonsmoking area.
5-11 (e) Except as provided by Subsection (f), a smoking area may
5-12 not be designated in:
5-13 (1) a common work area in which work stations are
5-14 divided by partial walls;
5-15 (2) an elevator;
5-16 (3) a school bus;
5-17 (4) a public means of mass transportation;
5-18 (5) a rest room;
5-19 (6) a service line, cashier area, over-the-counter
5-20 sales area, or common traffic area; or
5-21 (7) a place in which smoking is prohibited by the fire
5-22 marshal of the state or a political subdivision or by other law,
5-23 ordinance, or rule.
5-24 (f) No place other than a bar or retail store that primarily
5-25 sells tobacco may be designated as a smoking area in its entirety.
5-26 If a bar or tobacco store is designated as a smoking area in its
5-27 entirety, that fact shall be posted conspicuously at each entrance
6-1 to the premises.
6-2 Sec. 164.005. SIGNS. (a) A proprietor or person in charge
6-3 of a public place shall place signs visible at each entrance to the
6-4 premises to notify persons entering the premises that smoking is
6-5 prohibited or that smoking is prohibited except in areas designated
6-6 as smoking areas.
6-7 (b) A proprietor or person in charge of a public place shall
6-8 post in a conspicuous place in any area designated as a smoking
6-9 area signs stating that smoking is permitted in the area. The
6-10 proprietor or person in charge may post signs in the premises
6-11 stating "No Smoking" or "No Smoking Except in Designated Areas" as
6-12 appropriate.
6-13 Sec. 164.006. REASONABLE EFFORT TO PREVENT SMOKING. (a) A
6-14 proprietor or person in charge of a public place shall make a
6-15 reasonable effort to prevent smoking by:
6-16 (1) designating any areas where smoking will be
6-17 permitted as required by Section 164.004;
6-18 (2) posting signs as required by Section 164.005; and
6-19 (3) asking smokers to refrain from smoking in all
6-20 nonsmoking areas on request of a client, patron, or employee
6-21 suffering discomfort from the smoke.
6-22 (b) If a smoker refuses to comply with a request to refrain
6-23 from smoking, an affected person may bring an action as provided by
6-24 Section 164.009.
6-25 Sec. 164.007. FACILITIES TO EXTINGUISH SMOKING MATERIALS.
6-26 (a) All public conveyances and public places shall be equipped
6-27 with facilities for extinguishing smoking materials.
7-1 (b) Facilities for extinguishing smoking materials that are
7-2 located in areas of public places other than designated smoking
7-3 areas shall be accompanied by clearly visible signs stating "No
7-4 Smoking."
7-5 Sec. 164.008. ADMINISTRATION; WAIVER. (a) The board shall
7-6 adopt rules necessary under this chapter and shall implement and
7-7 determine compliance with this chapter.
7-8 (b) The commissioner may, on request of a proprietor or
7-9 person in charge of a public place, waive the requirements of this
7-10 chapter if the commissioner determines that there are compelling
7-11 reasons to do so and the waiver will not significantly affect the
7-12 health and comfort of nonsmokers.
7-13 Sec. 164.009. INJUNCTION. The board, a local governmental
7-14 entity, or any affected person may bring an action in any court of
7-15 competent jurisdiction to enjoin a violation of this chapter.
7-16 Sec. 164.010. LOCAL ORDINANCES. This chapter does not
7-17 prohibit a political subdivision from adopting a more stringent
7-18 ordinance that regulates or prohibits smoking at a public meeting
7-19 or in a public place.
7-20 SECTION 2. Section 48.01, Penal Code, is repealed.
7-21 SECTION 3. Each employer required to adopt a written smoking
7-22 policy under Section 164.004(c), Health and Safety Code, as added
7-23 by this Act, shall adopt the policy:
7-24 (1) not later than March 31, 1994, if the business was
7-25 established before January 1, 1994; or
7-26 (2) not later than 90 days after the date on which the
7-27 business begins to operate if the business is established on or
8-1 after January 1, 1994.
8-2 SECTION 4. (a) This Act takes effect January 1, 1994.
8-3 (b) The repeal by this Act of Section 48.01, Penal Code,
8-4 does not apply to an offense committed under that section before
8-5 January 1, 1994. An offense committed before that date is covered
8-6 by that section as it existed on the date on which the offense was
8-7 committed, and the former law is continued in effect for this
8-8 purpose.
8-9 SECTION 5. The importance of this legislation and the
8-10 crowded condition of the calendars in both houses create an
8-11 emergency and an imperative public necessity that the
8-12 constitutional rule requiring bills to be read on three several
8-13 days in each house be suspended, and this rule is hereby suspended.