By: Armbrister S.B. No. 1237
A BILL TO BE ENTITLED
AN ACT
1-1 relating to smoking in public places and places of employment;
1-2 providing criminal penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle H, Title 2, Health and Safety Code, is
1-5 amended by adding Chapter 165 to read as follows:
1-6 CHAPTER 165. SMOKING IN PUBLIC PLACES AND PLACES OF EMPLOYMENT
1-7 Sec. 165.001. PURPOSE. The purpose of this chapter is to
1-8 protect the public health, comfort, and environment by prohibiting
1-9 smoking in public places and in places of employment except in
1-10 designated areas.
1-11 Sec. 165.002. DEFINITIONS. In this chapter:
1-12 (1) "Bar" means an indoor area open to the public that
1-13 is devoted primarily to the sale and service of alcoholic beverages
1-14 for on-premises consumption and in which any service of food is
1-15 only incidental to the consumption of those beverages. For
1-16 purposes of this subdivision, service of food is incidental if the
1-17 food service generates less than 25 percent of the total annual
1-18 gross sales. The term includes the bar area of a restaurant, but
1-19 does not include the dining area.
1-20 (2) "Designated smoking area" or "smoking area" means
1-21 any portion of an indoor area in which smoking is permitted or any
1-22 room designated for smoking in its entirety, whether or not
1-23 enclosed, and that is clearly designated as a smoking area.
1-24 (3) "Employer" means an individual, partnership,
2-1 association, corporation, or nonprofit entity that employs one or
2-2 more individuals and includes the legislative, executive, and
2-3 judicial branches of state government and any political subdivision
2-4 of the state.
2-5 (4) "Hospital" means an institution that provides
2-6 medical, surgical, and other similar services on an inpatient
2-7 basis.
2-8 (5) "Indoor facility" means a building that is
2-9 enclosed, but does not include a private home or residence.
2-10 (6) "Long-term care facility" means a skilled nursing
2-11 home, intermediate care home, or personal care home.
2-12 (7) "Nonsmoking area" means an indoor area or room
2-13 where smoking is not permitted.
2-14 (8) "Place of employment" means an indoor area under
2-15 the control of an employer in which employees of the employer work
2-16 but that is not generally open to the public. The term does not
2-17 include a private home or residence, except those areas used for
2-18 providing licensed day care, kindergarten, elementary, or secondary
2-19 education, or library services to children.
2-20 (9) "Private enclosed office" means an enclosed area
2-21 within a place of employment that is regularly occupied by a single
2-22 employee and that has walls that extend from the floor to the
2-23 ceiling and a closable door.
2-24 (10) "Private function" means a wedding, party,
2-25 testimonial dinner, meeting, or other similar gathering where
2-26 attendance is by invitation only.
2-27 (11) "Public place" means an indoor area generally
3-1 open to the public.
3-2 (12) "Restaurant" means an indoor area open to the
3-3 public that is devoted primarily to the sale and service of food
3-4 for immediate consumption and in which any service of alcoholic
3-5 beverages is incidental to the consumption of food. For purposes
3-6 of this subdivision, service of alcoholic beverages is incidental
3-7 if the food service generates 25 percent or more of the total
3-8 annual gross sales. The term does not include the bar area of a
3-9 restaurant.
3-10 (13) "Retail or service establishment" means an
3-11 establishment that sells goods or services to the public and that
3-12 has at least 500 square feet of public showroom or service space.
3-13 (14) "Retail tobacco store" means a retail store in
3-14 which the sale of tobacco products designed for smoking comprises
3-15 not less than 25 percent of the establishment's total annual
3-16 receipts.
3-17 (15) "Smoke" or "smokes" means to inhale, exhale,
3-18 burn, or carry a lighted cigar, cigarette, pipe, or other smoking
3-19 equipment in any manner or form.
3-20 (16) "Smoking" means inhaling, exhaling, burning, or
3-21 carrying a lighted cigar, cigarette, pipe, or other smoking
3-22 equipment in any manner or form.
3-23 (17) "Tobacco business" means a business entity or
3-24 enterprise that has as its primary purpose the manufacture,
3-25 distribution, promotion, or sale of tobacco, tobacco products, or
3-26 accessories and in which the manufacture, distribution, promotion,
3-27 or sale of other products is merely incidental.
4-1 Sec. 165.003. SMOKING PROHIBITED IN PUBLIC PLACE OR PLACE OF
4-2 EMPLOYMENT. (a) An individual commits an offense if the
4-3 individual smokes in a public place or place of employment and the
4-4 individual is not in a designated smoking area.
4-5 (b) The following may not be designated as a smoking area:
4-6 (1) an elevator;
4-7 (2) a public area of a retail or service
4-8 establishment;
4-9 (3) a hospital;
4-10 (4) a public area of a long-term care facility or any
4-11 other area of a long-term care facility in which smoking is
4-12 prohibited by law;
4-13 (5) an indoor facility used on a routine or regular
4-14 basis to provide kindergarten, elementary, or secondary education
4-15 or library services to children, except as provided by Section
4-16 165.004(16);
4-17 (6) an indoor facility used on a routine or regular
4-18 basis to provide day care or other children's services to the
4-19 extent that smoking is prohibited in the facility by federal law;
4-20 (7) a public restroom;
4-21 (8) a public transit vehicle;
4-22 (9) a public area of a library or museum;
4-23 (10) an indoor viewing area of a theater or movie
4-24 house; or
4-25 (11) any other area designated as a nonsmoking area by
4-26 the employer, proprietor, or other person in charge of the
4-27 premises.
5-1 (c) It is a defense to prosecution under Subsection (a) that
5-2 the person smoking is a participant in an authorized theatrical
5-3 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 designated smoking area in an institution,
5-19 facility, or building controlled in whole or part by an agency of
5-20 government as determined by the head of the governmental entity
5-21 controlling the area so designated;
5-22 (10) the areas of a publicly owned building that house
5-23 the offices of an elected official or an officer of the state,
5-24 except to the extent those areas are designated by the elected
5-25 official or an officer of the state as nonsmoking areas;
5-26 (11) a limousine, taxi, or similar form of
5-27 transportation under private hire;
6-1 (12) a private enclosed office in a place of
6-2 employment;
6-3 (13) a private automobile;
6-4 (14) a private home or residence, except while
6-5 children are present in an area used for providing licensed day
6-6 care, kindergarten, elementary, or secondary education or library
6-7 services to children;
6-8 (15) a dormitory unless prohibited by the policies of
6-9 a particular facility;
6-10 (16) a restaurant with an indoor seating capacity for
6-11 dining of 50 persons or fewer, excluding seating in a bar area;
6-12 (17) a retail tobacco store or tobacco business; or
6-13 (18) an outdoor area.
6-14 Sec. 165.005. DESIGNATED SMOKING AREA IN RESTAURANT.
6-15 (a) In a restaurant with an indoor seating capacity for dining in
6-16 excess of 50 persons, excluding seating in a bar area, smoking may
6-17 be permitted in the dining area in a designated smoking area and in
6-18 the bar area.
6-19 (b) A designated smoking area under Subsection (a) may not
6-20 comprise more than 40 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 from a designated smoking area by at
6-25 least six feet;
6-26 (2) be situated so that air from the designated
6-27 smoking area is not drawn into or across the nonsmoking area; and
7-1 (3) comply with the notice provisions of Section
7-2 165.006.
7-3 (d) The smoking area may not include a service line, cashier
7-4 area, an in-door or out-door children's play area, or other
7-5 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 by posting signs clearly designating the
7-10 areas in which smoking is and is not allowed.
7-11 Sec. 165.007. EMPLOYER SMOKING POLICIES. (a) An employer
7-12 who employs one or more persons on a full-time basis shall:
7-13 (1) comply with Section 165.006, except in a private
7-14 enclosed office;
7-15 (2) designate common work areas or rooms as nonsmoking
7-16 unless all of the employees assigned to the area or room agree to
7-17 permit smoking;
7-18 (3) in establishing smoking areas, use existing
7-19 barriers and ventilation systems to minimize the drift of smoke to
7-20 nonsmoking areas, and reasonably accommodate the interests of both
7-21 smokers and nonsmokers; and
7-22 (4) provide for contiguous nonsmoking areas in
7-23 employee cafeterias and lunch rooms.
7-24 (b) This chapter does not prohibit an employer from
7-25 designating a place of employment in its entirety as a nonsmoking
7-26 area.
7-27 Sec. 165.008. LIMITATIONS ON STRUCTURAL MODIFICATIONS.
8-1 (a) This chapter does not require expenditures or structural
8-2 changes to create nonsmoking areas or preclude the designation of
8-3 smoking areas in the absence of such changes.
8-4 (b) Existing physical barriers and ventilation systems shall
8-5 be used to minimize the drift of smoke to nonsmoking areas.
8-6 Sec. 165.009. STATEWIDE UNIFORMITY. (a) To ensure uniform
8-7 and equitable implementation and enforcement throughout this state,
8-8 this chapter comprises the whole field of regulation regarding
8-9 smoking in public places, in places of employment, and in outdoor
8-10 areas. This chapter does not preempt or supersede any ordinance,
8-11 rule, regulation, or statute relating to the sale or distribution
8-12 of tobacco products.
8-13 (b) This chapter does not preempt an amendment to a local
8-14 ordinance, rule, or regulation adopted at any time which brings the
8-15 ordinance, rule, or regulation into conformity with this chapter or
8-16 which removes a prohibition on smoking in the local ordinance,
8-17 rule, or regulation. An amendment striking a prohibition may
8-18 establish criteria relating to the previously prohibited activity
8-19 which exceed those of this chapter.
8-20 (c) This chapter does not preempt or supersede:
8-21 (1) local ordinances, rules, or regulations that
8-22 became effective before the effective date of this Act, as those
8-23 ordinances, rules, or regulations were in effect on that date;
8-24 (2) Section 21.927, Education Code, or any other state
8-25 law; or
8-26 (3) statutes, rules, ordinances, regulations, or
8-27 policies governing smoking in places of incarceration.
9-1 Sec. 165.010. PENALTY. Failure by an individual to comply
9-2 with this chapter constitutes an offense punishable as a Class C
9-3 misdemeanor. Suit may be filed by any person to enjoin any action
9-4 prohibited by this chapter. Upon a finding by the court that the
9-5 provisions of this chapter have been violated the court may issue
9-6 an injunction. The court may award attorney's fees and costs of
9-7 court to the prevailing party. It shall not be grounds for a cause
9-8 of action under this section that an area has been designated
9-9 nonsmoking.
9-10 SECTION 2. Subtitle H, Title 2, Health and Safety Code, is
9-11 amended by adding Chapter 166 to read as follows:
9-12 CHAPTER 166. SMOKING IN STATE BUILDINGS OR MEETINGS
9-13 Sec. 166.001. PURPOSE
9-14 Sec. 166.002. DEFINITIONS
9-15 Sec. 166.003. SMOKING AT PUBLIC HEARING OR IN STATE
9-16 BUILDING; CRIMINAL PENALTY
9-17 Sec. 166.004. DESIGNATION OF SMOKING AREAS
9-18 Sec. 166.005. SIGNS
9-19 Sec. 166.006. REASONABLE EFFORT TO PREVENT SMOKING
9-20 Sec. 166.007. FACILITIES TO EXTINGUISH SMOKING MATERIALS
9-21 Sec. 166.008. ADMINISTRATION; WAIVER
9-22 Sec. 166.009. INJUNCTION
9-23 CHAPTER 166. SMOKING IN STATE BUILDINGS OR MEETINGS
9-24 Sec. 166.001. PURPOSE. The purpose of this chapter is to
9-25 protect the public health and comfort and the environment by
9-26 phasing in a prohibition of smoking in state buildings and at
9-27 public hearings held by state agencies.
10-1 Sec. 166.002. DEFINITIONS. In this chapter:
10-2 (1) "Smoke," "smokes," or "smoking" includes:
10-3 (A) carrying or holding a lighted pipe, cigar,
10-4 or cigarette of any kind or any other lighted smoking material,
10-5 equipment, or device;
10-6 (B) lighting a pipe, cigar, or cigarette of any
10-7 kind or any other smoking material, equipment, or device; or
10-8 (C) emitting or exhaling the smoke of a pipe,
10-9 cigar, or cigarette of any kind or any other smoking material,
10-10 equipment, or device.
10-11 (2) "State agency" includes an agency in any branch of
10-12 state government.
10-13 (3) "State building" means a building wholly or
10-14 partially owned or wholly leased by the state, but does not include
10-15 property wholly leased for commercial purposes to a person or
10-16 entity not a state agency or property wholly occupied by a
10-17 commercial enterprise operated under a management agreement between
10-18 a state agency and a person or entity not a state agency.
10-19 Sec. 166.003. SMOKING AT PUBLIC HEARING OR IN STATE
10-20 BUILDING; CRIMINAL PENALTY. (a) Prior to September 1, 1996, a
10-21 person commits an offense if the person smokes at a public hearing
10-22 conducted by a state agency or in a state building and the person
10-23 is not in an area designated as a smoking area under Section
10-24 166.004. On or after September 1, 1996, a person commits an
10-25 offense if the person smokes at a public hearing conducted by a
10-26 state agency or in a state building.
10-27 (b) Prior to September 1, 1996, it is an exception to the
11-1 application of Subsection (a) that the person is smoking in a place
11-2 in a state building for which a waiver has been granted under
11-3 Section 166.008(b).
11-4 (c) An offense under this section is a Class C misdemeanor.
11-5 Sec. 166.004. DESIGNATION OF SMOKING AREAS. (a) Prior to
11-6 September 1, 1996, and except as provided by Subsection (e), if the
11-7 chief executive of a state agency decides to permit persons in
11-8 parts of a state building occupied by that agency to smoke, the
11-9 chief executive or the chief executive's designee shall designate
11-10 areas as smoking areas. The lieutenant governor or speaker of the
11-11 house of representatives or their designees, as appropriate, may
11-12 designate areas as smoking areas in buildings occupied by the
11-13 legislature. On and after September 1, 1996, no part of a state
11-14 building occupied by a state agency may be designated a smoking
11-15 area.
11-16 (b) Notwithstanding Section 166.003 or Subsection (a) of
11-17 this section, an elected official or an officer of the state may
11-18 authorize smoking in the areas of a publicly owned building that
11-19 house that public official's offices. Section 166.003 and
11-20 Subsection (a) of this section apply to an area of a publicly owned
11-21 building that house that public official's offices to the extent
11-22 that they are designated as nonsmoking areas by the public official
11-23 or an officer of the state.
11-24 (c) The designation of smoking areas does not require an
11-25 agency to make structural or physical modifications to accommodate
11-26 the smoking areas, but existing physical barriers and ventilation
11-27 systems shall be used to minimize the effects of smoke in adjacent
12-1 nonsmoking areas.
12-2 (d) Each state agency shall develop, implement, and maintain
12-3 a written smoking policy that accommodates the wishes of smoking
12-4 and nonsmoking employees by designating smoking and nonsmoking
12-5 areas. If a dispute arises, the preferences of nonsmokers shall be
12-6 accommodated. This chapter does not prohibit a state agency from
12-7 designating a place of employment in its entirety as a nonsmoking
12-8 area.
12-9 (e) A smoking area may not be designated in:
12-10 (1) an elevator;
12-11 (2) a rest room;
12-12 (3) a service line, cashier area, over-the-counter
12-13 sales area, or common traffic area; or
12-14 (4) a place in which smoking is prohibited by the fire
12-15 marshal of the state or a political subdivision or by other law,
12-16 ordinance, or rule.
12-17 Sec. 166.005. SIGNS. (a) Each state agency occupying a
12-18 state building shall place signs visible at each entrance to an
12-19 area in the state building occupied by the agency to notify persons
12-20 entering the premises that smoking is prohibited or, prior to
12-21 September 1, 1996, that smoking is prohibited except in areas
12-22 designated as smoking areas.
12-23 (b) The person responsible for designating smoking areas in
12-24 a state building shall post in a conspicuous place in any area
12-25 designated as a smoking area signs stating that smoking is
12-26 permitted in the area. The person may post signs in the premises
12-27 stating "No Smoking" or "No Smoking Except in Designated Areas" as
13-1 appropriate. By September 1, 1996, each "No Smoking Except in
13-2 Designated Areas" sign shall be replaced by a "No Smoking" sign.
13-3 Sec. 166.006. REASONABLE EFFORT TO PREVENT SMOKING. (a) A
13-4 person authorized to designate smoking areas under Section
13-5 166.004(a) shall make a reasonable effort to prevent smoking by:
13-6 (1) designating any areas where smoking will be
13-7 permitted as required by Section 166.004;
13-8 (2) posting signs as required by Section 166.005; and
13-9 (3) asking smokers to refrain from smoking in all
13-10 nonsmoking areas on request of a client, patron, or employee
13-11 suffering discomfort from the smoke.
13-12 (b) If a smoker refuses to comply with a request to refrain
13-13 from smoking, an affected person may bring an action as provided by
13-14 Section 166.009.
13-15 (c) This section expires September 1, 1996.
13-16 Sec. 166.007. FACILITIES TO EXTINGUISH SMOKING MATERIALS.
13-17 (a) All state buildings shall be equipped with facilities for
13-18 extinguishing smoking materials.
13-19 (b) Facilities for extinguishing smoking materials that are
13-20 located in areas of state buildings other than designated smoking
13-21 areas shall be accompanied by clearly visible signs stating "No
13-22 Smoking."
13-23 Sec. 166.008. ADMINISTRATION; WAIVER. (a) The board shall
13-24 adopt rules necessary under this chapter and shall implement and
13-25 determine compliance with this chapter.
13-26 (b) Prior to September 1, 1996, the commissioner may, on
13-27 request of a person authorized to designate smoking areas under
14-1 Section 166.004(a), waive the requirements of this chapter if the
14-2 commissioner determines that there are compelling reasons to do so
14-3 and that the waiver will not significantly affect the health and
14-4 comfort of nonsmokers. No waiver may be granted on or after
14-5 September 1, 1996.
14-6 Sec. 166.009. INJUNCTION. The board, another state agency,
14-7 or any affected person may bring an action in any court of
14-8 competent jurisdiction to enjoin a violation of this chapter.
14-9 SECTION 3. Each state agency required to adopt a written
14-10 smoking policy under Subsection (d), Section 166.004, Health and
14-11 Safety Code, as added by this Act, shall adopt the policy not later
14-12 than January 1, 1996.
14-13 SECTION 4. Subchapter H, Chapter 161, Health and Safety
14-14 Code, is amended by adding Section 161.083 to read as follows:
14-15 Sec. 161.083. POSSESSION OR USE OF CIGARETTES OR TOBACCO
14-16 PRODUCTS BY MINORS IN PUBLIC PLACES OR PLACES OF EMPLOYMENT
14-17 PROHIBITED. (a) A person who is younger than 18 years of age
14-18 commits an offense if the person possesses or uses a cigarette or
14-19 tobacco product in any public place or place of employment.
14-20 (b) An offense under this section is a misdemeanor
14-21 punishable by a fine of not less than $25 or more than $200 or by
14-22 25 hours of community service work.
14-23 SECTION 5. The following are repealed:
14-24 (1) Section 48.01, Penal Code; and
14-25 (2) Section 2, Chapter 290, Acts of the 64th
14-26 Legislature, 1975.
14-27 SECTION 6. The repeal by this Act of Section 48.01, Penal
15-1 Code, does not apply to an offense committed under that section
15-2 before the effective date of this Act. An offense committed before
15-3 that date is covered by the law in effect on the date on which the
15-4 offense was committed, and the former law is continued in effect
15-5 for this purpose.
15-6 SECTION 7. The importance of this legislation and the
15-7 crowded condition of the calendars in both houses create an
15-8 emergency and an imperative public necessity that the
15-9 constitutional rule requiring bills to be read on three several
15-10 days in each house be suspended, and this rule is hereby suspended,
15-11 and that this Act take effect and be in force from and after its
15-12 passage, and it is so enacted.