By: Crownover, King of Parker, Woolley, H.B. No. 9

Hamilton, Escobar, et al.

A BILL TO BE ENTITLED

AN ACT

relating to the elimination of smoking in certain workplaces and public places; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle H, Title 2, Health and Safety Code, is amended by adding Chapter 169 to read as follows:

CHAPTER 169. SMOKING PROHIBITED IN PUBLIC PLACES

AND PLACES OF EMPLOYMENT

Sec. 169.001. DEFINITIONS. In this chapter:

(1) "Bar" means an enclosed indoor establishment that is open to the public and is devoted primarily to the sale and service of alcoholic beverages for on-premises consumption.

(2) "Business" means:

(A) a sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit, including a retail establishment, where goods or services are sold;

(B) a professional corporation or other entity where legal, medical, dental, engineering, architectural, or other professional services are delivered; or

(C) a private club.

(3) "Department" means the Department of State Health Services.

(4) "Employee" means an individual who:

(A) is employed by an employer for direct or indirect monetary wages or profit; or

(B) volunteers the individual's services for an employer.

(5) "Employer" means a person who employs one or more individuals or uses the volunteer services of one or more individuals. The term includes:

(A) a nonprofit entity;

(B) the legislative, executive, and judicial branches of state government; and

(C) any political subdivision of this state.

(6) "Enclosed area" means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows, exclusive of doorways, which extend from the floor to the ceiling.

(7) "Health care facility" means an office or institution in which care or treatment is provided for physical, mental, or emotional diseases or other medical, physiological, or psychological conditions.

(8) "Place of employment" means an area under the control of an employer that is used by employees of the employer but is not generally open to the public.

(9) "Private club" means an organization that:

(A) owns, leases, or occupies a building used exclusively for club purposes at all times;

(B) is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain;

(C) sells alcoholic beverages only incidentally to its operation;

(D) is managed by a board of directors or similar body chosen by the members at an annual meeting;

(E) has established bylaws or a constitution to govern the club's activities; and

(F) is exempt from federal income taxation under Section 501(a), Internal Revenue Code of 1986, as a club described by Section 501(c)(7) of that code.

(10) "Public place" means:

(A) an enclosed indoor area the public is invited or permitted to enter, including all or part of the following:

(i) a restaurant;

(ii) a bar;

(iii) a retail or service establishment;

(iv) a facility of a business or nonprofit entity;

(v) a shopping mall;

(vi) a convention facility;

(vii) a theater or other facility primarily used for exhibiting a performance;

(viii) a sports arena;

(ix) a health care facility;

(x) a licensed child-care or adult day-care facility;

(xi) a polling place;

(xii) a room in which a public meeting under the control of this state, an agency or branch of government of this state, or a political subdivision of this state is in progress;

(xiii) a common area in a multiple-unit residential facility;

(xiv) a public transportation facility, including a bus or taxicab, and a ticket, boarding, or waiting area of a public transportation depot;

(xv) a waiting room, hallway, room, or ward in a health care facility; or

(xvi) a restroom, lobby, reception area, service line, hallway, elevator, or other common-use area the public is invited or permitted to enter; or

(B) a facility of the state or of a local government, including a building or vehicle owned, leased, or operated by the state or local government, regardless of whether the public is invited or permitted to enter.

(11) "Restaurant" means an enclosed indoor establishment that is open to the public and is devoted primarily to the sale and service of food for immediate consumption. The term includes a bar located at the establishment.

(12) "Retail or service establishment" means an establishment that sells goods or services to the public.

(13) "Service line" means an indoor line in which one or more persons wait for or receive service, whether or not the service involves the exchange of money.

(14) "Shopping mall" means an enclosed public walkway or hall area that connects retail, service, or professional establishments.

(15) "Smoke" means to inhale, exhale, burn, or carry a lighted cigar, cigarette, pipe, or other smoking equipment in any manner.

(16) "Sports arena" means a place in which a person engages in physical exercise, participates in athletic competition, or witnesses sports or other events.

(17) "Tobacco shop" means a business primarily devoted to the sale of tobacco products, as that term is defined by Section 155.001, Tax Code, that does not hold an alcoholic beverage permit or license.

Sec. 169.002. SMOKING PROHIBITED. A person may not smoke:

(1) in a public place or place of employment;

(2) within 15 feet of an entrance, operable window, or ventilation system of a public place or place of employment;

(3) in the seating area of an outdoor arena, stadium, or amphitheater; or

(4) in bleachers or grandstands for use by spectators at a sporting or other public event.

Sec. 169.003. EXCEPTIONS. This chapter does not apply to:

(1) a private residence, except when used as a child-care, adult day-care, or health care facility;

(2) a hotel or motel room rented to a guest and designated as a smoking room, if:

(A) not more than 20 percent of rooms rented are designated as smoking rooms;

(B) all smoking rooms in the hotel or motel on the same floor are contiguous;

(C) smoke from smoking rooms does not enter an area in which smoking is prohibited; and

(D) nonsmoking rooms are not converted to smoking rooms;

(3) a private or semiprivate room in a nursing home or long-term care facility occupied by one or more persons, all of whom are smokers and have requested in writing to be placed in a room where smoking is permitted, provided that smoke from the room does not enter an area where smoking is prohibited;

(4) a fraternal or veterans organization as defined by Section 32.11, Alcoholic Beverage Code;

(5) a private club not open to the general public;

(6) a bingo hall;

(7) a premises on which charitable bingo is authorized to be conducted under Chapter 2001, Occupations Code;

(8) property owned or leased by an organization that is a church, synagogue, religious society, nonprofit veterans organization, or fraternal organization during the times the property is being used for religious services, meetings, fund-raising, or other activities of the organization;

(9) a tobacco shop;

(10) a private club that does not employ any employees:

(A) unless the club is being used for a function to which the general public is invited; and

(B) provided the club is not established for the sole purpose of avoiding compliance with this chapter;

(11) a bar, if the operator of the bar provides health benefits coverage for each employee employed by the bar; or

(12) privately owned property designated exempt under Section 169.0035.

Sec. 169.0035. PRIVATELY OWNED PROPERTY. Notwithstanding any other provision in this chapter, a person who privately owns real property may designate the property as exempt from the provisions of this chapter by posting on the property clearly and conspicuously, in a manner reasonably necessary to give notice, a statement that smoking is permitted on the property.

Sec. 169.004. DUTIES OF PERSON IN CONTROL OF A PUBLIC PLACE OR PLACE OF EMPLOYMENT. A person in control of a public place or place of employment shall:

(1) post clearly and conspicuously in a manner reasonably necessary to give notice to persons entering the public place or place of employment:

(A) a sign with the words "NO SMOKING"; or

(B) a sign with the international no smoking symbol depicting a burning cigarette overlaid by a red circle with a diagonal line across the cigarette;

(2) remove all ashtrays from any area where smoking is prohibited; and

(3) make a reasonable effort to request that any person known to be smoking in a prohibited area extinguish the burning tobacco product.

Sec. 169.0045. CONTRACTOR PREFERENCES. An employer in control of a place of employment subject to this chapter may not award a contract, including contracts and contracts for services related to contracts under Chapter 2166, Government Code, to a proposed contractor unless the contractor offers to the contractor's employees a smoking cessation program to assist employees who smoke.

Sec. 169.0046. SMOKING CESSATION PROGRAM. (a) An employer in control of a place of employment subject to this chapter may offer to employees a smoking cessation program to assist employees who smoke.

(b) An employer that offers a program under this section is entitled to a credit against taxes owed by the employer under Chapter 171, Tax Code, in accordance with rules adopted by the comptroller. The amount of the credit is equal to the cost of the program.

(c) To qualify for the credit under Subsection (b), the program must offer assistance to an employee through at least two attempts to quit smoking and may be offered directly by the employer or through contract with another provider.

Sec. 169.005. DECLARATION OF ESTABLISHMENT AS NONSMOKING. (a) A person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place.

(b) A person may not smoke in a place in which a sign conforming to the requirements of Section 169.004 is posted.

Sec. 169.006. ENFORCEMENT. (a) The department or a public health official may enforce this chapter.

(b) In enforcing this chapter the department, a public health official, or a law enforcement officer may enter and inspect a public place.

(c) A person may file a complaint concerning a violation of this chapter with the department or a political subdivision of the state.

Sec. 169.007. INJUNCTIVE RELIEF. In addition to the other remedies provided by this chapter, the attorney general or a district, county, or city attorney may bring an action for injunctive relief to enforce this chapter.

Sec. 169.008. OFFENSES; PENALTIES. (a) A person who violates Section 169.002, 169.004, or 169.005(b) commits an offense. An offense under this subsection is a misdemeanor punishable by a fine not to exceed $100.

(b) If it is shown on the trial of an offense under Subsection (a) that the defendant has previously been finally convicted of an offense under that subsection that occurred within one year before the date of the offense that is the subject of the trial, on conviction the defendant shall be punished by a fine not to exceed $500.

(c) If it is shown on the trial of an offense under Subsection (a) that the defendant has previously been finally convicted of two offenses under that subsection that occurred within one year before the date of the offense that is the subject of the trial, on conviction the defendant shall be punished by a fine not to exceed $1,000.

Sec. 169.009. SEPARATE VIOLATIONS. Each day on which a violation of this chapter occurs is considered a separate violation.

Sec. 169.010. PUBLIC EDUCATION. The department may engage in a program to educate the public about the provisions of this chapter.

Sec. 169.011. APPLICABILITY; CONSTRUCTION. (a) Except as provided by Subsection (b) and Section 169.012, this chapter preempts and supersedes a local ordinance, rule, or regulation adopted by any political subdivision that restricts or prohibits smoking to a lesser degree than this chapter.

(b) This chapter does not preempt or supersede a local ordinance, rule, or regulation adopted by a political subdivision with a population of fewer than 50,000 people that prohibits or restricts smoking to a lesser degree than this chapter if the local ordinance, rule, or regulation was adopted by a political subdivision before September 1, 2007.

(c) Subsection (a) does not prohibit the adoption by a political subdivision, after September 1, 2007, of a local ordinance, rule, or regulation that prohibits or restricts smoking to a greater degree than this chapter.

(d) This chapter shall not be construed to permit smoking where it is restricted by other law.

(e) This chapter does not preempt or supersede Section 38.006, Education Code.

Sec. 169.012. LOCAL OPTION ELECTION. (a) The voters in a municipality may, in the same manner and procedure as for a charter amendment, vote to allow the governing body of the municipality to adopt a local ordinance that restricts or prohibits smoking to a lesser degree than this chapter. An election under this section shall be held on May 10, 2008.

(b) This chapter, other than this section, does not apply within the boundaries of a municipality that adopts an ordinance under Subsection (a).

SECTION 2. Subchapter A, Chapter 2166, Government Code, is amended by adding Section 2166.009 to read as follows:

Sec. 2166.009. CONTRACTOR PREFERENCES: NONSMOKING POLICY. The commission shall give preference to a proposed state contractor in awarding contracts under this chapter, including contracts for services related to contracts under this chapter, to a contractor who has a work site nonsmoking policy for the contractor's employees.

SECTION 3. The following are repealed:

(1) Section 48.01, Penal Code; and

(2) Section 2, Chapter 290, Acts of the 64th Legislature, Regular Session, 1975.

SECTION 4. The repeal by this Act of Section 48.01, Penal Code, does not apply to an offense committed under that section before the effective date of this Act. An offense committed before that date is covered by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose.

SECTION 5. This Act takes effect January 1, 2008.