1-1 By: Armbrister S.B. No. 1237
1-2 (In the Senate - Filed March 10, 1995; March 16, 1995, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 25, 1995, reported favorably by the following vote: Yeas 12,
1-5 Nays 1; April 25, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to smoking in public places and places of employment;
1-9 providing criminal penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Subtitle H, Title 2, Health and Safety Code, is
1-12 amended by adding Chapter 165 to read as follows:
1-13 CHAPTER 165. SMOKING IN PUBLIC PLACES AND PLACES OF EMPLOYMENT
1-14 Sec. 165.001. PURPOSE. The purpose of this chapter is to
1-15 protect the public health, comfort, and environment by prohibiting
1-16 smoking in public places and in places of employment except in
1-17 designated areas.
1-18 Sec. 165.002. DEFINITIONS. In this chapter:
1-19 (1) "Bar" means an indoor area open to the public that
1-20 is devoted primarily to the sale and service of alcoholic beverages
1-21 for on-premises consumption and in which any service of food is
1-22 only incidental to the consumption of those beverages. For
1-23 purposes of this subdivision, service of food is incidental if the
1-24 food service generates less than 25 percent of the total annual
1-25 gross sales. The term includes the bar area of a restaurant, but
1-26 does not include the dining area.
1-27 (2) "Designated smoking area" or "smoking area" means
1-28 any portion of an indoor area in which smoking is permitted or any
1-29 room designated for smoking in its entirety, whether or not
1-30 enclosed, and that is clearly designated as a smoking area.
1-31 (3) "Employer" means an individual, partnership,
1-32 association, corporation, or nonprofit entity that employs one or
1-33 more individuals and includes the legislative, executive, and
1-34 judicial branches of state government and any political subdivision
1-35 of the state.
1-36 (4) "Hospital" means an institution that provides
1-37 medical, surgical, and other similar services on an inpatient
1-38 basis.
1-39 (5) "Indoor facility" means a building that is
1-40 enclosed, but does not include a private home or residence.
1-41 (6) "Long-term care facility" means a skilled nursing
1-42 home, intermediate care home, or personal care home.
1-43 (7) "Nonsmoking area" means an indoor area or room
1-44 where smoking is not permitted.
1-45 (8) "Place of employment" means an indoor area under
1-46 the control of an employer in which employees of the employer work
1-47 but that is not generally open to the public. The term does not
1-48 include a private home or residence, except those areas used for
1-49 providing licensed day care, kindergarten, elementary, or secondary
1-50 education, or library services to children.
1-51 (9) "Private enclosed office" means an enclosed area
1-52 within a place of employment that is regularly occupied by a single
1-53 employee and that has walls that extend from the floor to the
1-54 ceiling and a closable door.
1-55 (10) "Private function" means a wedding, party,
1-56 testimonial dinner, meeting, or other similar gathering where
1-57 attendance is by invitation only.
1-58 (11) "Public place" means an indoor area generally
1-59 open to the public.
1-60 (12) "Restaurant" means an indoor area open to the
1-61 public that is devoted primarily to the sale and service of food
1-62 for immediate consumption and in which any service of alcoholic
1-63 beverages is incidental to the consumption of food. For purposes
1-64 of this subdivision, service of alcoholic beverages is incidental
1-65 if the food service generates 25 percent or more of the total
1-66 annual gross sales. The term does not include the bar area of a
1-67 restaurant.
1-68 (13) "Retail or service establishment" means an
2-1 establishment that sells goods or services to the public and that
2-2 has at least 500 square feet of public showroom or service space.
2-3 (14) "Retail tobacco store" means a retail store in
2-4 which the sale of tobacco products designed for smoking comprises
2-5 not less than 25 percent of the establishment's total annual
2-6 receipts.
2-7 (15) "Smoke" or "smokes" means to inhale, exhale,
2-8 burn, or carry a lighted cigar, cigarette, pipe, or other smoking
2-9 equipment in any manner or form.
2-10 (16) "Smoking" means inhaling, exhaling, burning, or
2-11 carrying a lighted cigar, cigarette, pipe, or other smoking
2-12 equipment in any manner or form.
2-13 (17) "Tobacco business" means a business entity or
2-14 enterprise that has as its primary purpose the manufacture,
2-15 distribution, promotion, or sale of tobacco, tobacco products, or
2-16 accessories and in which the manufacture, distribution, promotion,
2-17 or sale of other products is merely incidental.
2-18 Sec. 165.003. SMOKING PROHIBITED IN PUBLIC PLACE OR PLACE OF
2-19 EMPLOYMENT. (a) An individual commits an offense if the
2-20 individual smokes in a public place or place of employment and the
2-21 individual is not in a designated smoking area.
2-22 (b) The following may not be designated as a smoking area:
2-23 (1) an elevator;
2-24 (2) a public area of a retail or service
2-25 establishment;
2-26 (3) a hospital corridor or nursing home corridor that
2-27 provides direct access to patients' rooms;
2-28 (4) an indoor facility used on a routine or regular
2-29 basis to provide kindergarten, elementary, or secondary education
2-30 or library services to children, except as provided by Section
2-31 165.004(16);
2-32 (5) an indoor facility used on a routine or regular
2-33 basis to provide day care or other children's services to the
2-34 extent that smoking is prohibited in the facility by federal law;
2-35 (6) a public restroom;
2-36 (7) a public transit vehicle;
2-37 (8) a public area of a library or museum;
2-38 (9) an indoor viewing area of a theater or movie
2-39 house; or
2-40 (10) any other area designated as a nonsmoking area by
2-41 the employer, proprietor, or other person in charge of the
2-42 premises.
2-43 (c) It is a defense to prosecution under Subsection (a) that
2-44 a public place or place of employment does not comply with the
2-45 notice provisions of Section 165.006 or that the person smoking is
2-46 a participant in an authorized theatrical performance.
2-47 (d) An offense under this section is a Class C misdemeanor.
2-48 Sec. 165.004. EXCEPTIONS. Section 165.003(a) does not apply
2-49 to:
2-50 (1) a dining or meeting room when the room is being
2-51 used for a private function;
2-52 (2) a bar;
2-53 (3) a bingo parlor;
2-54 (4) a bowling alley;
2-55 (5) a pool hall;
2-56 (6) a private club;
2-57 (7) a designated smoking area in any other public
2-58 place, other than one listed in Section 165.003(b);
2-59 (8) a designated smoking area in a place of employment
2-60 as established by an employer if the employer complies with
2-61 Sections 165.006 and 165.007;
2-62 (9) a hotel or motel room rented to a guest;
2-63 (10) a jail, prison, or other municipal, county, and
2-64 state place of incarceration in which persons who are charged with
2-65 the commission of criminal offenses or have been convicted of
2-66 criminal offenses are housed, unless prohibited by the policies of
2-67 a particular place of incarceration;
2-68 (11) a designated smoking area in an institution,
2-69 facility, or building controlled in whole or part by a branch of
2-70 state government as determined by the head of the governmental
3-1 entity controlling the area so designated;
3-2 (12) a limousine, taxi, or similar form of
3-3 transportation under private hire;
3-4 (13) a private enclosed office in a place of
3-5 employment;
3-6 (14) a private hospital room designated as a smoking
3-7 area, if other patients in the room consent;
3-8 (15) a private automobile;
3-9 (16) a private home or residence, except while
3-10 children are present in an area used for providing licensed day
3-11 care, kindergarten, elementary, or secondary education or library
3-12 services to children;
3-13 (17) a dormitory or long-term care facility unless
3-14 prohibited by the policies of a particular facility;
3-15 (18) a restaurant with an indoor seating capacity for
3-16 dining of 50 persons or fewer, excluding seating in a bar area;
3-17 (19) a retail tobacco store or tobacco business; or
3-18 (20) an outdoor area.
3-19 Sec. 165.005. DESIGNATED SMOKING AREA IN RESTAURANT.
3-20 (a) In a restaurant with an indoor seating capacity for dining in
3-21 excess of 50 persons, excluding seating in a bar area, smoking may
3-22 be permitted in the dining area in a designated smoking area.
3-23 (b) A designated smoking area under Subsection (a) may not
3-24 comprise more than 50 percent of the restaurant's indoor seating
3-25 capacity for dining, excluding seating in a bar area.
3-26 (c) In a restaurant with a designated smoking area
3-27 authorized by this section, the nonsmoking area must:
3-28 (1) be separated, where feasible, from a designated
3-29 smoking area by at least four feet;
3-30 (2) be ventilated, where feasible, and situated so
3-31 that air from the designated smoking area is not drawn into or
3-32 across the nonsmoking area; and
3-33 (3) comply with the notice provisions of Section
3-34 165.006.
3-35 (d) The nonsmoking area may not include a service line,
3-36 cashier area, or other nondining area to which patrons have general
3-37 access.
3-38 Sec. 165.006. NOTICE. An employer, proprietor, or other
3-39 person in control of a public place or place of employment in which
3-40 smoking is allowed shall give actual notice to employees and
3-41 members of the public or post signs clearly designating the areas
3-42 in which smoking is allowed.
3-43 Sec. 165.007. EMPLOYER SMOKING POLICIES. (a) An employer
3-44 who employs one or more persons on a full-time basis shall:
3-45 (1) comply with Section 165.006, except in a private
3-46 enclosed office;
3-47 (2) designate common work areas or rooms as nonsmoking
3-48 unless all of the employees assigned to the area or room agree to
3-49 permit smoking;
3-50 (3) in establishing smoking areas, use existing
3-51 barriers and ventilation systems to minimize the drift of smoke to
3-52 nonsmoking areas, and reasonably accommodate the interests of both
3-53 smokers and nonsmokers; and
3-54 (4) provide for contiguous nonsmoking areas in
3-55 employee cafeterias and lunch rooms.
3-56 (b) This chapter does not prohibit an employer from
3-57 designating a place of employment in its entirety as a nonsmoking
3-58 area.
3-59 Sec. 165.008. LIMITATIONS ON STRUCTURAL MODIFICATIONS.
3-60 (a) This chapter does not require expenditures or structural
3-61 changes to create nonsmoking areas or preclude the designation of
3-62 smoking areas in the absence of such changes.
3-63 (b) To the extent possible, existing physical barriers and
3-64 ventilation systems shall be used to minimize the drift of smoke to
3-65 nonsmoking areas.
3-66 Sec. 165.009. STATEWIDE UNIFORMITY. (a) To ensure uniform
3-67 and equitable implementation and enforcement throughout this state,
3-68 this chapter comprises the whole field of regulation regarding
3-69 smoking in public places, in places of employment, and in outdoor
3-70 areas.
4-1 (b) Except as provided by Subsection (c), this chapter
4-2 preempts and supersedes a local ordinance, rule, or regulation
4-3 adopted by a municipality, county, or other political subdivision
4-4 pertaining to smoking.
4-5 (c) This chapter does not preempt or supersede:
4-6 (1) local ordinances, rules, or regulations that
4-7 became effective before January 1, 1994, as those ordinances,
4-8 rules, or regulations were in effect on that date; or
4-9 (2) Section 21.927, Education Code, or any other state
4-10 law.
4-11 SECTION 2. The following are repealed:
4-12 (1) Section 48.01, Penal Code; and
4-13 (2) Section 2, Chapter 290, Acts of the 64th
4-14 Legislature, 1975.
4-15 SECTION 3. The repeal by this Act of Section 48.01, Penal
4-16 Code, does not apply to an offense committed under that section
4-17 before the effective date of this Act. An offense committed before
4-18 that date is covered by the law in effect on the date on which the
4-19 offense was committed, and the former law is continued in effect
4-20 for this purpose.
4-21 SECTION 4. This Act takes effect September 1, 1995.
4-22 SECTION 5. The importance of this legislation and the
4-23 crowded condition of the calendars in both houses create an
4-24 emergency and an imperative public necessity that the
4-25 constitutional rule requiring bills to be read on three several
4-26 days in each house be suspended, and this rule is hereby suspended.
4-27 * * * * *