82R3601 YDB-F

By: Crownover, Zerwas, Pitts, Otto, Alvarado, H.B. No. 670

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

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, that 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 enclosed 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 area the public is invited or

allowed 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 allowed to enter; or

(B) a facility or vehicle of this state or of a

local government, including a building or vehicle owned, leased, or

operated by this state or the local government, regardless of

whether the public is invited or allowed 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 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;

(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.

(18) "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. 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, and

municipal agencies and all 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 authorize 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. 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 nursing home or long-term care facility;

(4) a tobacco shop;

(5) a tobacco bar;

(6) 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;

(7) the outdoor area of a restaurant or bar, other than

the areas described by Section 169.053;

(8) an outdoor porch or patio that is not accessible to

the public, other than the areas described by Section 169.053;

(9) an enclosed workplace where tobacco or a tobacco

product is heated, burned, smoked, or tested by a manufacturer,

importer, or distributor of tobacco or tobacco products or by a

tobacco leaf dealer as a necessary and integral part of the making,

manufacturing, importing, or distributing of the tobacco or tobacco

product for eventual retail sale; or

(10) a convention of tobacco-related businesses in a

municipality where a convention of tobacco-related businesses is

expressly authorized under an applicable municipal ordinance.

Sec. 169.055. 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 169.056 is posted.

Sec. 169.056. DUTIES OF OWNER, MANAGER, OR OPERATOR OF

PUBLIC PLACE OR EMPLOYER IN PLACE OF EMPLOYMENT. 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.

[Sections 169.057-169.100 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 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. 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, or 169.055(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 169.056 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. SEPARATE VIOLATIONS. Each day on which a

violation of this chapter occurs is considered a separate

violation.

SECTION 2. The following are repealed:

(1) Section 48.01, Penal Code; and

(2) Section 2, Chapter 290 (S.B. 59), 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, 2011.