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.