81R172 ALB-F

By: Ellis S.B. No. 544

A BILL TO BE ENTITLED

AN ACT

relating to the elimination of smoking in all 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

SUBCHAPTER A. GENERAL PROVISIONS

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.

Sec. 169.002. APPLICABILITY. (a) Except as provided by Subsection (b), this chapter preempts and supersedes a local ordinance, rule, or regulation adopted by any political subdivision of this state relating to smoking.

(b) To the extent that a local ordinance, rule, or regulation adopted by a political subdivision of this state prohibits or restricts smoking to a greater degree than this chapter, the ordinance, rule, or regulation is not preempted or superseded by this chapter.

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

Sec. 169.003. PUBLIC EDUCATION. The department shall engage in a continuing program to explain and clarify the purpose and requirements of this chapter and to guide employers, owners, operators, and managers in complying with this chapter. The program may include publication of a brochure for businesses and individuals that explains the provisions of this chapter.

Sec. 169.004. GOVERNMENT AGENCY COOPERATION. The department shall annually request other government agencies to establish local operating procedures to comply with this chapter. This request may include urging all federal, state, county, municipal, and independent school districts to update existing smoking control regulations to be consistent with the current health findings regarding secondhand smoke.

Sec. 169.005. OTHER APPLICABLE LAWS. This chapter may not be construed to permit smoking where it is restricted by other applicable law.

Sec. 169.006. LIBERAL CONSTRUCTION. This chapter shall be liberally construed to further its purpose.

[Sections 169.007-169.050 reserved for expansion]

SUBCHAPTER B. PROHIBITED ACTS

Sec. 169.051. SMOKING PROHIBITED IN PUBLIC PLACES. A person may not smoke in a public place in this state.

Sec. 169.052. SMOKING PROHIBITED IN PLACE OF EMPLOYMENT. A person may not smoke in a place of employment.

Sec. 169.053. PROHIBITION OF SMOKING IN SEATING AREA AT AN OUTDOOR EVENT. A person may not smoke in:

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

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

Sec. 169.054. REASONABLE DISTANCE. A person may not smoke within a distance of 15 feet outside an entrance, operable window, or ventilation system of an enclosed area in which smoking is prohibited.

Sec. 169.055. EXCEPTIONS. This subchapter 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 to guests in a hotel or motel 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 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 private club is not established for the sole purpose of avoiding compliance with this chapter; or

(5) the outdoor area of a place of employment other than the areas described by Sections 169.053 and 169.054.

Sec. 169.056. DECLARATION OF ESTABLISHMENT AS NONSMOKING. (a) An owner, operator, manager, or other 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 169.057(a) is posted.

Sec. 169.057. DUTIES OF OWNER, MANAGER, OR OPERATOR OF PUBLIC PLACE OR EMPLOYER IN PLACE OF EMPLOYMENT. (a) An owner, manager, or operator of a public place or an employer in a place of employment shall:

(1) post clearly and conspicuously in the public place or place of employment, as applicable:

(A) a sign with the words "No Smoking"; or

(B) a sign with the international "No Smoking" symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across the cigarette;

(2) post at each entrance to the public place or place of employment, as applicable, a conspicuous sign clearly stating that smoking is prohibited; and

(3) remove all ashtrays from any area in which smoking is prohibited.

(b) An employer shall provide written notice that smoking is prohibited in the place of employment to each:

(1) prospective employee in any application the employer supplies; and

(2) employee on the first day of employment.

(b-1) An employer shall provide written notice not later than December 1, 2009, that smoking is prohibited to each employee who is employed by that employer on September 1, 2009, and who continues to be employed by the employer on the date of the notice. This subsection expires January 1, 2011.

Sec. 169.058. NONRETALIATION; NONWAIVER OF RIGHTS. (a) A person or employer may not discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant, or customer exercises any right afforded by this chapter or reports or attempts to prosecute a violation of this chapter.

(b) An employee working in a setting in which an employer allows smoking does not waive or surrender any legal right the employee may have against the employer or any other party.

[Sections 169.059-169.100 reserved for expansion]

SUBCHAPTER C. ENFORCEMENT AND PENALTIES

Sec. 169.101. ENFORCEMENT. (a) The department shall enforce this chapter.

(b) An agency of this state or a political subdivision of this state that issues a license, certificate, registration, or other authority or permit to a business or to an owner, operator, or other person in control of a business shall provide notice to each applicant for the permit or authority of the provisions of this chapter.

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

(d) The department or another agency of this state or a political subdivision of this state designated by the department may inspect an establishment for compliance with this chapter.

(e) An employer or an owner, manager, operator, or employee of an establishment regulated under this chapter shall inform a person violating this chapter of the appropriate provisions pertaining to the violation.

Sec. 169.102. INJUNCTIVE RELIEF. In addition to the other remedies provided by this chapter, the attorney general at the request of the department, or a person aggrieved by a violation of this chapter, may bring an action for injunctive relief to enforce this chapter.

Sec. 169.103. OFFENSES; PENALTIES. (a) A person who violates Section 169.051, 169.052, 169.053, 169.054, or 169.056(b) commits an offense. An offense under this subsection is a Class C misdemeanor punishable by a fine not to exceed $50.

(b) An owner, manager, or operator of a public place or an employer in a place of employment, as applicable, who violates Section 169.057 or 169.058(a) commits an offense. An offense under this subsection is a Class C misdemeanor punishable by a fine not to exceed $100.

(c) If it is shown on the trial of an offense under Subsection (b) 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 $200.

(d) If it is shown on the trial of an offense under Subsection (b) 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 $500.

Sec. 169.104. SUSPENSION OR REVOCATION OF LICENSE OR PERMIT. An agency of this state or a political subdivision of this state may, in accordance with the applicable procedures of the agency, suspend or revoke a license, permit, or other authority for the premises on which a violation of this chapter occurs.

Sec. 169.105. PUBLIC NUISANCE. A violation of this chapter is a public nuisance and may be abated by the department by restraining order, preliminary or permanent injunction, or other means provided by law. The state may take action to recover the costs of the nuisance abatement.

Sec. 169.106. SEPARATE VIOLATIONS. Each day on which a violation of this chapter occurs is considered a separate and distinct violation.

SECTION 2. 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 3. 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 4. This Act takes effect September 1, 2009.