Bill Text: TX SB86 | 2013-2014 | 83rd Legislature | Introduced
Bill Title: Relating to the elimination of smoking in certain workplaces and public places; providing penalties.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2013-02-25 - Co-author authorized [SB86 Detail]
Download: Texas-2013-SB86-Introduced.html
83R185 NAJ-F | ||
By: Ellis | S.B. No. 86 |
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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 172 to read as follows: | ||
CHAPTER 172. SMOKING PROHIBITED IN PUBLIC PLACES AND PLACES OF | ||
EMPLOYMENT | ||
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) "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, excluding sales derived from vending machines or the use of | ||
hookahs; | ||
(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 product manufacturing facility" means a | ||
building that is owned or leased by a for-profit business that | ||
manufactures tobacco products intended to be smoked and that is | ||
used for the testing or development of tobacco products. The term | ||
does not include a retail store, membership club, tobacco | ||
distributor, or tobacco storage facility. | ||
(19) "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 | ||
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. 172.003. 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. 172.004. 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. 172.005. OTHER APPLICABLE LAWS. This chapter may not | ||
be construed to authorize smoking where it is restricted by other | ||
applicable law. | ||
Sec. 172.006. LIBERAL CONSTRUCTION. This chapter shall be | ||
liberally construed to further its purpose. | ||
[Sections 172.007-172.050 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. SMOKING PROHIBITED IN PLACE OF EMPLOYMENT. A | ||
person may not smoke in a place of employment in this state. | ||
Sec. 172.053. 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 in this state; or | ||
(2) bleachers or grandstands for use by spectators at | ||
a sporting or other public event held in this state. | ||
Sec. 172.054. EXCEPTIONS. (a) 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 that was in operation on May 15, | ||
2013; | ||
(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 172.053; | ||
(8) an outdoor porch or patio that is not accessible to | ||
the public, other than the areas described by Section 172.053; or | ||
(9) except as provided by Subsection (b), a tobacco | ||
product manufacturing facility that complies with the following | ||
requirements: | ||
(A) smoke from the facility does not migrate into | ||
an enclosed area where smoking is prohibited under this chapter; | ||
(B) the facility is a freestanding structure that | ||
does not share a common wall with another establishment or business | ||
and that is occupied solely by the tobacco product manufacturer; | ||
(C) the facility does not employ any individual | ||
under the age of 18; | ||
(D) the facility does not allow a guest or member | ||
of the public to enter an area where a tobacco product is being | ||
smoked; | ||
(E) the facility does not allow a guest, member | ||
of the public, or employee to roll the individual's own tobacco | ||
products; | ||
(F) smoking is allowed only in an area designated | ||
for the testing or development of tobacco products and only for the | ||
purpose of testing or developing tobacco products; and | ||
(G) smoking is not allowed in any common work | ||
area of the facility, including a private or shared office, meeting | ||
area, cafeteria, break room, hallway, restroom, or elevator. | ||
(b) The exemption provided under Subsection (a)(9) does not | ||
apply to a tobacco product manufacturing facility that is | ||
established for the purpose of avoiding compliance with this | ||
chapter. | ||
Sec. 172.055. 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 172.056 is posted. | ||
Sec. 172.056. 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 diagonally | ||
crossing 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 172.057-172.100 reserved for expansion] | ||
SUBCHAPTER C. ENFORCEMENT AND PENALTIES | ||
Sec. 172.101. 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. 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, 172.052, 172.053, or 172.055(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 172.056 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. 172.104. 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, 2013. |