82S10111 YDB-D
 
  By: Crownover H.B. No. 46
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to reducing state Medicaid and other health care costs by
  prohibiting smoking in certain public places; providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  The legislature finds that the changes in law
  made by this Act will reduce the state's costs for health care and
  for treatment of smoking-related illness under governmentally
  funded insurance programs for state employees and their dependents
  and under other taxpayer-supported programs, such as Medicaid and
  indigent health care.
         SECTION 2.  (a)  Chapter 172, Health and Safety Code, as
  added by this Act, takes effect on the 90th day after the date the
  executive commissioner of the Health and Human Services Commission:
               (1)  certifies in writing that prohibiting smoking in
  certain public places in accordance with Chapter 172, Health and
  Safety Code, as added by this Act, will reduce this state's Medicaid
  expenditures in the state fiscal biennium ending August 31, 2013,
  by at least $10 million paid from any revenue source or by $4
  million paid from the general revenue fund; and
               (2)  publishes the certification in the Texas Register.
         (b)  On publication of the certification as described by
  Subsection (a)(2) of this section, the Health and Human Services
  Commission shall post on the commission's Internet website a copy
  of that certification and notice of the requirements of Chapter
  172, Health and Safety Code, as added by this Act.
         (c)  Not later than the 30th day after the date the executive
  commissioner of the Health and Human Services Commission publishes
  the certification as described by Subsection (a)(2) of this
  section, the Department of State Health Services, the Alcoholic
  Beverage Commission, and each county, public health district, and
  local health department shall:
               (1)  post a copy of the certification on its Internet
  website; or
               (2)  provide notice to holders subject to Chapter 172,
  Health and Safety Code, as added by this Act, of the requirements of
  that chapter.
         (d)  If the executive commissioner of the Health and Human
  Services Commission fails to provide the certification required by
  Subsection (a) of this section on or before January 1, 2012, this
  Act expires and Chapter 172, Health and Safety Code, does not take
  effect.
         SECTION 3.  Subtitle H, Title 2, Health and Safety Code, is
  amended by adding Chapter 172 to read as follows:
  CHAPTER 172.  SMOKING PROHIBITED IN CERTAIN PUBLIC PLACES
  SUBCHAPTER A.  GENERAL PROVISIONS
         Sec. 172.001.  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)  "Department" means the Department of State Health
  Services.
               (3)  "Enclosed area" means all space between a floor
  and ceiling that is enclosed on all sides by solid walls or windows,
  exclusive of doorways, that extend from the floor to the ceiling.
               (4)  "Public place" means an enclosed area the public
  is invited or allowed to enter, including a bar and a restaurant.
               (5)  "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.
               (6)  "Smoke" means to inhale, exhale, burn, or carry a
  lighted cigar, cigarette, pipe, or other smoking equipment in any
  manner.
               (7)  "Tobacco bar" means a business that:
                     (A)  has in excess of 15 percent of gross sales in
  tobacco products, as that term is defined by Section 155.001, Tax
  Code, excluding sales derived from vending machines;
                     (B)  holds a permit under Chapter 155, Tax Code;
  and
                     (C)  holds an alcoholic beverage permit or license
  issued under Chapter 25, 28, 32, or 69, Alcoholic Beverage Code, or
  under Section 11.10, Alcoholic Beverage Code.
               (8)  "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. 172.002.  APPLICABILITY. (a)  Except as provided by
  Section 172.053, this chapter applies only to a public place that is
  owned, managed, operated, or controlled under a license,
  certificate, registration, or other authority or permit issued for
  the public place or to a person who owns, manages, operates, or
  controls the public place by the Department of State Health
  Services, the Alcoholic Beverage Commission, or a local health
  department or, with respect to a permit requirement authorized by
  Chapter 437, a county or public health district.
         (b)  Except as provided by Subsection (c), this chapter
  preempts and supersedes a local ordinance, rule, or regulation
  adopted by any political subdivision of this state relating to
  smoking.
         (c)  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.
         (d)  This chapter does not preempt or supersede Section
  38.006, Education Code.
         Sec. 172.003.  OTHER APPLICABLE LAWS. This chapter may not
  be construed to authorize smoking where it is restricted by other
  applicable law.
         Sec. 172.004.  LIBERAL CONSTRUCTION.  This chapter shall be
  liberally construed to further its purpose.
  [Sections 172.005-172.050 reserved for expansion]
  SUBCHAPTER B.  PROHIBITED ACTS
         Sec. 172.051.  SMOKING PROHIBITED IN PUBLIC PLACES.  A
  person may not smoke in a public place in this state.
         Sec. 172.052.  EXCEPTIONS. (a)  This subchapter does not
  apply to:
               (1)  a tobacco shop;
               (2)  a tobacco bar;
               (3)  the outdoor area of a restaurant or bar;
               (4)  an outdoor porch or patio that is not accessible to
  the public;
               (5)  the set of a motion picture, television, or
  theater production; or
               (6)  a convention of tobacco-related businesses in a
  municipality where a convention of tobacco-related businesses is
  expressly authorized under an applicable municipal ordinance.
         (b)  The exception under Subsection (a)(5) applies only to an
  actor who is portraying the use of a tobacco product during the
  motion picture, television, or theater production.
         Sec. 172.053.  DECLARATION OF ESTABLISHMENT AS NONSMOKING.
  (a)  An owner, operator, manager, or other person in control of any
  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 172.054 is posted.
         Sec. 172.054.  DUTIES OF OWNER, MANAGER, OR OPERATOR OF
  PUBLIC PLACE. An owner, manager, or operator of a public place
  shall:
               (1)  post clearly and conspicuously in the public
  place:
                     (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 a
  conspicuous sign clearly stating that smoking is prohibited; and
               (3)  remove all ashtrays from any area in which smoking
  is prohibited.
  [Sections 172.055-172.100 reserved for expansion]
  SUBCHAPTER C.  ENFORCEMENT AND PENALTIES
         Sec. 172.101.  ENFORCEMENT. (a)  The department shall
  enforce this chapter.
         (b)  A governmental entity described by Section 172.002(a)
  that issues a license, certificate, registration, or other
  authority or permit for a public place or to a person who owns,
  manages, operates, or controls the public place shall provide
  notice to each applicant for the permit or authority of the
  provisions of this chapter.
         (c)  A person may file with the department a complaint
  concerning a violation of this chapter.
         (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. 172.102.  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. 172.103.  OFFENSES; PENALTIES.  (a)  A person who
  violates Section 172.051 or 172.053(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 who
  violates Section 172.054 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.
         (e)  If conduct that constitutes an offense under this
  section also constitutes an offense under another law, the offense
  may be prosecuted under this section, the other law, or both this
  section and the other law.
         Sec. 172.104.  SEPARATE VIOLATIONS.  Each day on which a
  violation of this chapter occurs is considered a separate
  violation.
         SECTION 4.  This Act takes effect on the 91st day after the
  last day of the legislative session.