74R10860 E By Seidlits, Kuempel H.B. No. 2973 Substitute the following for H.B. No. 2973: By Danburg C.S.H.B. No. 2973 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to smoking in public places and places of employment; 1-3 providing criminal 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 165 to read as follows: 1-7 CHAPTER 165. SMOKING IN PUBLIC PLACES AND PLACES OF EMPLOYMENT 1-8 Sec. 165.001. 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 in places of employment except in 1-11 designated areas. 1-12 Sec. 165.002. DEFINITIONS. In this chapter: 1-13 (1) "Bar" means an indoor area open to the public that 1-14 is devoted primarily to the sale and service of alcoholic beverages 1-15 for on-premises consumption and in which any service of food is 1-16 only incidental to the consumption of those beverages. For 1-17 purposes of this subdivision, service of food is incidental if the 1-18 food service generates less than 25 percent of the total annual 1-19 gross sales. The term includes the bar area of a restaurant, but 1-20 does not include the dining area. 1-21 (2) "Designated smoking area" or "smoking area" means 1-22 any portion of an indoor area in which smoking is permitted or any 1-23 room designated for smoking in its entirety, whether or not 1-24 enclosed, and that is clearly designated as a smoking area. 2-1 (3) "Employer" means an individual, partnership, 2-2 association, corporation, or nonprofit entity that employs one or 2-3 more individuals, and includes the legislative, executive, and 2-4 judicial branches of state government and any political subdivision 2-5 of the state. 2-6 (4) "Hospital" means an institution that provides 2-7 medical, surgical, and other similar services on an inpatient 2-8 basis. 2-9 (5) "Indoor facility" means a building that is 2-10 enclosed, but does not include a private home or residence. 2-11 (6) "Long-term care facility" means a skilled nursing 2-12 home, intermediate care home, or personal care home. 2-13 (7) "Nonsmoking area" means an indoor area or room 2-14 where smoking is not permitted. 2-15 (8) "Place of employment" means an indoor area under 2-16 the control of an employer in which employees of the employer work 2-17 but that is not generally open to the public. The term does not 2-18 include a private home or residence, except those areas used for 2-19 providing licensed day care, kindergarten, elementary, or secondary 2-20 education, or library services to children. 2-21 (9) "Private enclosed office" means an enclosed area 2-22 within a place of employment that is regularly occupied by a single 2-23 employee and that has walls that extend from the floor to the 2-24 ceiling and a closable door. 2-25 (10) "Private function" means a wedding, party, 2-26 testimonial dinner, meeting, or other similar gathering where 2-27 attendance is by invitation only. 3-1 (11) "Public place" means an indoor area generally 3-2 open to the public. 3-3 (12) "Restaurant" means an indoor area open to the 3-4 public that is devoted primarily to the sale and service of food 3-5 for immediate consumption and in which any service of alcoholic 3-6 beverages is incidental to the consumption of food. For purposes 3-7 of this subdivision, service of alcoholic beverages is incidental 3-8 if the food service generates 25 percent or more of the total 3-9 annual gross sales. The term does not include the bar area of a 3-10 restaurant. 3-11 (13) "Retail or service establishment" means an 3-12 establishment that sells goods or services to the public and that 3-13 has at least 500 square feet of public showroom or service space. 3-14 (14) "Retail tobacco store" means a retail store in 3-15 which the sale of tobacco products designed for smoking comprises 3-16 not less than 25 percent of the establishment's total annual 3-17 receipts. 3-18 (15) "Smoke" or "smokes" means to inhale, exhale, 3-19 burn, or carry a lighted cigar, cigarette, pipe, or other smoking 3-20 equipment in any manner or form. 3-21 (16) "Smoking" means inhaling, exhaling, burning, or 3-22 carrying a lighted cigar, cigarette, pipe, or other smoking 3-23 equipment in any manner or form. 3-24 (17) "Tobacco business" means a business entity or 3-25 enterprise that has as its primary purpose the manufacture, 3-26 distribution, promotion, or sale of tobacco, tobacco products, or 3-27 accessories and in which the manufacture, distribution, promotion, 4-1 or sale of other products is merely incidental. 4-2 Sec. 165.003. SMOKING PROHIBITED IN PUBLIC PLACE OR PLACE OF 4-3 EMPLOYMENT. (a) An individual commits an offense if the 4-4 individual smokes in a public place or place of employment and the 4-5 individual is not in a designated smoking area. 4-6 (b) The following may not be designated as a smoking area: 4-7 (1) an elevator; 4-8 (2) a public area of a retail or service 4-9 establishment; 4-10 (3) a hospital corridor or nursing home corridor that 4-11 provides direct access to patients' rooms; 4-12 (4) an indoor facility used on a routine or regular 4-13 basis to provide kindergarten, elementary, or secondary education 4-14 or library services to children, except as provided by Section 4-15 165.004(15); 4-16 (5) an indoor facility used on a routine or regular 4-17 basis to provide day care or other children's services to the 4-18 extent that smoking is prohibited in the facility by federal law; 4-19 (6) a public restroom; 4-20 (7) a public transit vehicle; 4-21 (8) a public area of a library or museum; 4-22 (9) an indoor viewing area of a theater or movie 4-23 house; or 4-24 (10) any other area designated as a nonsmoking area by 4-25 the employer, proprietor, or other person in charge of the 4-26 premises. 4-27 (c) It is a defense to prosecution under Subsection (a) that 5-1 a public place or place of employment does not comply with the 5-2 notice provisions of Section 165.006 or that the person smoking is 5-3 a participant in an authorized theatrical performance. 5-4 Sec. 165.004. EXCEPTIONS. Section 165.003(a) does not apply 5-5 to: 5-6 (1) a dining or meeting room when the room is being 5-7 used for a private function; 5-8 (2) a bar; 5-9 (3) a bingo parlor; 5-10 (4) a bowling alley; 5-11 (5) a pool hall; 5-12 (6) a private club; 5-13 (7) a designated smoking area in any other public 5-14 place, other than one listed in Section 165.003(b); 5-15 (8) a designated smoking area in a place of employment 5-16 as established by an employer if the employer complies with 5-17 Sections 165.006 and 165.007; 5-18 (9) a jail, prison, or other municipal, county, and 5-19 state place of incarceration in which persons who are charged with 5-20 the commission of criminal offenses or have been convicted of 5-21 criminal offenses are housed, unless prohibited by the policies of 5-22 a particular place of incarceration; 5-23 (10) a designated smoking area in an institution, 5-24 facility, or building controlled in whole or part by an agency of 5-25 government as determined by the head of the governmental entity 5-26 controlling the area so designated; 5-27 (11) a limousine, taxi, or similar form of 6-1 transportation under private hire; 6-2 (12) a private enclosed office in a place of 6-3 employment; 6-4 (13) a private automobile; 6-5 (14) a private home or residence, except while 6-6 children are present in an area used for providing licensed day 6-7 care, kindergarten, elementary, or secondary education, or library 6-8 services to children; 6-9 (15) a dormitory or long-term care facility unless 6-10 prohibited by the policies of a particular facility; 6-11 (16) a restaurant with an indoor seating capacity for 6-12 dining of 50 persons or fewer, excluding seating in a bar area; 6-13 (17) a retail tobacco store or tobacco business; or 6-14 (18) an outdoor area. 6-15 Sec. 165.005. DESIGNATED SMOKING AREA IN RESTAURANT. (a) 6-16 In a restaurant with an indoor seating capacity for dining in 6-17 excess of 50 persons, excluding seating in a bar area, smoking may 6-18 be permitted in the dining area in a designated smoking area. 6-19 (b) A designated smoking area under Subsection (a) may not 6-20 comprise more than 50 percent of the restaurant's indoor seating 6-21 capacity for dining, excluding seating in a bar area. 6-22 (c) In a restaurant with a designated smoking area 6-23 authorized by this section, the nonsmoking area must: 6-24 (1) be separated, where feasible, from a designated 6-25 smoking area by at least four feet; 6-26 (2) be ventilated, where feasible, and situated so 6-27 that air from the designated smoking area is not drawn into or 7-1 across the nonsmoking area; and 7-2 (3) comply with the notice provisions of Section 7-3 165.006. 7-4 (d) The smoking area may not include a service line, cashier 7-5 area, or other nondining area to which patrons have general access. 7-6 Sec. 165.006. NOTICE. An employer, proprietor, or other 7-7 person in control of a public place or place of employment in which 7-8 smoking is allowed shall give actual notice to employees and 7-9 members of the public or post signs clearly designating the areas 7-10 in which smoking is allowed. 7-11 Sec. 165.007. EMPLOYER SMOKING POLICIES. (a) An employer 7-12 who employs one or more persons, other than a domestic employee, on 7-13 a full-time basis shall: 7-14 (1) comply with Section 165.006, except in a private 7-15 enclosed office; 7-16 (2) designate common work areas or rooms as nonsmoking 7-17 unless all of the employees assigned to the area or room agree to 7-18 permit smoking; 7-19 (3) in establishing smoking areas, use existing 7-20 barriers and ventilation systems to minimize the drift of smoke to 7-21 nonsmoking areas, and reasonably accommodate the interests of both 7-22 smokers and nonsmokers; and 7-23 (4) provide for contiguous nonsmoking areas in 7-24 employee cafeterias and lunchrooms. 7-25 (b) Each employer shall adopt, implement, and maintain a 7-26 written employee smoking policy that applies in places other than 7-27 public areas and that complies with this chapter. The policy must 8-1 accommodate the preference of any nonsmoker who works in a 8-2 smoke-free area. A copy of the policy shall be provided to each 8-3 employee when the policy is adopted and to a future employee when 8-4 employment begins. This section does not require an employer to 8-5 allow smoking on any premises. 8-6 (c) This chapter does not prohibit an employer from 8-7 designating a place of employment in its entirety as a nonsmoking 8-8 area. 8-9 Sec. 165.008. LIMITATIONS ON STRUCTURAL MODIFICATIONS. (a) 8-10 This chapter does not require expenditures or structural changes to 8-11 create nonsmoking areas or preclude the designation of smoking 8-12 areas in the absence of such changes. 8-13 (b) To the extent possible, existing physical barriers and 8-14 ventilation systems shall be used to minimize the drift of smoke to 8-15 nonsmoking areas. 8-16 Sec. 165.009. STATEWIDE UNIFORMITY. (a) To ensure uniform 8-17 and equitable implementation and enforcement throughout this state, 8-18 this chapter comprises the whole field of regulation regarding 8-19 smoking in public places, in places of employment, and in outdoor 8-20 areas. 8-21 (b) Except as provided by Subsection (c), this chapter 8-22 preempts and supersedes a local ordinance, rule, or regulation 8-23 adopted by a municipality, county, or other political subdivision 8-24 pertaining to smoking. 8-25 (c) This chapter does not preempt or supersede: 8-26 (1) local ordinances, rules, or regulations that 8-27 became effective before January 1, 1994, as those ordinances, 9-1 rules, or regulations were in effect on that date; or 9-2 (2) Section 21.927, Education Code, or any other state 9-3 law. 9-4 Sec. 165.010. PENALTY. A person commits an offense if the 9-5 person fails to comply with this chapter. An offense under this 9-6 section is a Class C misdemeanor. 9-7 SECTION 2. The following are repealed: 9-8 (1) Section 48.01, Penal Code; and 9-9 (2) Section 2, Chapter 290, Acts of the 64th 9-10 Legislature, Regular Session, 1975. 9-11 SECTION 3. The repeal by this Act of Section 48.01, Penal 9-12 Code, does not apply to an offense committed under that section 9-13 before the effective date of this Act. An offense committed before 9-14 that date is covered by the law in effect on the date on which the 9-15 offense was committed, and the former law is continued in effect 9-16 for this purpose. 9-17 SECTION 4. This Act takes effect September 1, 1995. 9-18 SECTION 5. The importance of this legislation and the 9-19 crowded condition of the calendars in both houses create an 9-20 emergency and an imperative public necessity that the 9-21 constitutional rule requiring bills to be read on three several 9-22 days in each house be suspended, and this rule is hereby suspended.