Texas 2009 - 81st Regular

Texas Senate Bill SB544 Compare Versions

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1	1	By: Ellis, et al. S.B. No. 544
2	2	(In the Senate - Filed January 26, 2009; February 17, 2009,
3	3	read first time and referred to Committee on Health and Human
4	4	Services; May 13, 2009, reported adversely, with favorable
5	5	Committee Substitute by the following vote: Yeas 5, Nays 3;
6	6	May 13, 2009, sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 544 By: Shapleigh
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to the elimination of smoking in certain workplaces and
13	13	public places; providing penalties.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Subtitle H, Title 2, Health and Safety Code, is
16	16	amended by adding Chapter 169 to read as follows:
17	17	CHAPTER 169. SMOKING PROHIBITED IN PUBLIC PLACES
18	18	AND PLACES OF EMPLOYMENT
19	19	SUBCHAPTER A. GENERAL PROVISIONS
20	20	Sec. 169.001. DEFINITIONS. In this chapter:
21	21	(1) "Bar" means an enclosed indoor establishment that
22	22	is open to the public and is devoted primarily to the sale and
23	23	service of alcoholic beverages for on-premises consumption.
24	24	(2) "Business" means:
25	25	(A) a sole proprietorship, partnership, joint
26	26	venture, corporation, or other business entity, either for profit
27	27	or not for profit, including a retail establishment, where goods or
28	28	services are sold;
29	29	(B) a professional corporation or other entity
30	30	where legal, medical, dental, engineering, architectural, or other
31	31	professional services are delivered; or
32	32	(C) a private club.
33	33	(3) "Cigar bar" means a business that:
34	34	(A) has in excess of 15 percent of gross sales in
35	35	tobacco products, as that term is defined by Section 155.001, Tax
36	36	Code;
37	37	(B) holds a permit under Chapter 155, Tax Code;
38	38	and
39	39	(C) holds an alcoholic beverage permit or license
40	40	under Chapter 25, 28, 32, or 69, Alcoholic Beverage Code.
41	41	(4) "Department" means the Department of State Health
42	42	Services.
43	43	(5) "Employee" means an individual who:
44	44	(A) is employed by an employer for direct or
45	45	indirect monetary wages or profit; or
46	46	(B) volunteers the individual's services for an
47	47	employer.
48	48	(6) "Employer" means a person who employs one or more
49	49	individuals or uses the volunteer services of one or more
50	50	individuals. The term includes:
51	51	(A) a nonprofit entity;
52	52	(B) the legislative, executive, and judicial
53	53	branches of state government; and
54	54	(C) any political subdivision of this state.
55	55	(7) "Enclosed area" means all space between a floor
56	56	and ceiling that is enclosed on all sides by solid walls or windows,
57	57	exclusive of doorways, that extend from the floor to the ceiling.
58	58	(8) "Health care facility" means an office or
59	59	institution in which care or treatment is provided for physical,
60	60	mental, or emotional diseases or other medical, physiological, or
61	61	psychological conditions.
62	62	(9) "Place of employment" means an area under the
63	63	control of an employer that is used by employees of the employer but
64	64	is not generally open to the public.
65	65	(10) "Private club" means an organization that:
66	66	(A) owns, leases, or occupies a building used
67	67	exclusively for club purposes at all times;
68	68	(B) is operated solely for a recreational,
69	69	fraternal, social, patriotic, political, benevolent, or athletic
70	70	purpose, but not for pecuniary gain;
71	71	(C) sells alcoholic beverages only incidentally
72	72	to its operation;
73	73	(D) is managed by a board of directors or similar
74	74	body chosen by the members at an annual meeting;
75	75	(E) has established bylaws or a constitution to
76	76	govern the club's activities; and
77	77	(F) is exempt from federal income taxation under
78	78	Section 501(a), Internal Revenue Code of 1986, as a club described
79	79	by Section 501(c)(7) of that code.
80	80	(11) "Public place" means:
81	81	(A) an enclosed indoor area the public is invited
82	82	or permitted to enter, including all or part of the following:
83	83	(i) a restaurant;
84	84	(ii) a bar;
85	85	(iii) a retail or service establishment;
86	86	(iv) a facility of a business or nonprofit
87	87	entity;
88	88	(v) a shopping mall;
89	89	(vi) a convention facility;
90	90	(vii) a theater or other facility primarily
91	91	used for exhibiting a performance;
92	92	(viii) a sports arena;
93	93	(ix) a health care facility;
94	94	(x) a licensed child-care or adult day-care
95	95	facility;
96	96	(xi) a polling place;
97	97	(xii) a room in which a public meeting under
98	98	the control of this state, an agency or branch of government of this
99	99	state, or a political subdivision of this state is in progress;
100	100	(xiii) a common area in a multiple-unit
101	101	residential facility;
102	102	(xiv) a public transportation facility,
103	103	including a bus or taxicab, and a ticket, boarding, or waiting area
104	104	of a public transportation depot;
105	105	(xv) a waiting room, hallway, room, or ward
106	106	in a health care facility; or
107	107	(xvi) a restroom, lobby, reception area,
108	108	service line, hallway, elevator, or other common-use area the
109	109	public is invited or permitted to enter; or
110	110	(B) a facility of the state or of a local
111	111	government, including a building or vehicle owned, leased, or
112	112	operated by the state or local government, regardless of whether
113	113	the public is invited or permitted to enter.
114	114	(12) "Restaurant" means an enclosed indoor
115	115	establishment that is open to the public and is devoted primarily to
116	116	the sale and service of food for immediate consumption. The term
117	117	includes a bar located at the establishment.
118	118	(13) "Retail or service establishment" means an
119	119	establishment that sells goods or services to the public.
120	120	(14) "Service line" means an indoor line in which one
121	121	or more persons wait for or receive service, whether or not the
122	122	service involves the exchange of money.
123	123	(15) "Shopping mall" means an enclosed public walkway
124	124	or hall area that connects retail, service, or professional
125	125	establishments.
126	126	(16) "Smoke" means to inhale, exhale, burn, or carry a
127	127	lighted cigar, cigarette, pipe, or other smoking equipment in any
128	128	manner.
129	129	(17) "Sports arena" means a place in which a person
130	130	engages in physical exercise, participates in athletic
131	131	competition, or witnesses sports or other events.
132	132	(18) "Tobacco shop" means a business primarily devoted
133	133	to the sale of tobacco products, as that term is defined by Section
134	134	155.001, Tax Code, that does not hold an alcoholic beverage permit
135	135	or license.
136	136	Sec. 169.002. APPLICABILITY. (a) Except as provided by
137	137	Subsection (b), this chapter preempts and supersedes a local
138	138	ordinance, rule, or regulation adopted by any political subdivision
139	139	of this state relating to smoking.
140	140	(b) To the extent that a local ordinance, rule, or
141	141	regulation adopted by a political subdivision of this state
142	142	prohibits or restricts smoking to a greater degree than this
143	143	chapter, the ordinance, rule, or regulation is not preempted or
144	144	superseded by this chapter.
145	145	(c) This chapter does not preempt or supersede Section
146	146	38.006, Education Code.
147	147	Sec. 169.003. PUBLIC EDUCATION. The department shall
148	148	engage in a continuing program to explain and clarify the purpose
149	149	and requirements of this chapter and to guide employers, owners,
150	150	operators, and managers in complying with this chapter. The
151	151	program may include publication of a brochure for businesses and
152	152	individuals that explains the provisions of this chapter.
153	153	Sec. 169.004. GOVERNMENT AGENCY COOPERATION. The
154	154	department shall annually request other government agencies to
155	155	establish local operating procedures to comply with this chapter.
156	156	This request may include urging all federal, state, county,
157	157	municipal, and independent school districts to update existing
158	158	smoking control regulations to be consistent with the current
159	159	health findings regarding secondhand smoke.
160	160	Sec. 169.005. OTHER APPLICABLE LAWS. This chapter may not
161	161	be construed to permit smoking where it is restricted by other
162	162	applicable law.
163	163	Sec. 169.006. LIBERAL CONSTRUCTION. This chapter shall be
164	164	liberally construed to further its purpose.
165	165	[Sections 169.007-169.050 reserved for expansion]
166	166	SUBCHAPTER B. PROHIBITED ACTS
167	167	Sec. 169.051. SMOKING PROHIBITED IN PUBLIC PLACES. A
168	168	person may not smoke in a public place in this state.
169	169	Sec. 169.052. SMOKING PROHIBITED IN PLACE OF EMPLOYMENT. A
170	170	person may not smoke in a place of employment.
171	171	Sec. 169.053. PROHIBITION OF SMOKING IN SEATING AREA AT AN
172	172	OUTDOOR EVENT. A person may not smoke in:
173	173	(1) the seating area of an outdoor arena, stadium, or
174	174	amphitheater; or
175	175	(2) bleachers or grandstands for use by spectators at
176	176	a sporting or other public event.
177	177	Sec. 169.054. REASONABLE DISTANCE. A person may not smoke
178	178	within a distance of 10 feet outside a doorway of an enclosed area
179	179	in which smoking is prohibited.
180	180	Sec. 169.055. EXCEPTIONS. Except as provided by Section
181	181	169.056, this subchapter does not apply to:
182	182	(1) a private residence, except when used as a
183	183	child-care, adult day-care, or health care facility;
184	184	(2) a hotel or motel room rented to a guest and
185	185	designated as a smoking room, if:
186	186	(A) not more than 20 percent of rooms rented to
187	187	guests in a hotel or motel are designated as smoking rooms;
188	188	(B) all smoking rooms in the hotel or motel on the
189	189	same floor are contiguous;
190	190	(C) smoke from smoking rooms does not enter an
191	191	area in which smoking is prohibited; and
192	192	(D) nonsmoking rooms are not converted to smoking
193	193	rooms;
194	194	(3) a nursing home or long-term care facility;
195	195	(4) a tobacco shop;
196	196	(5) a cigar bar;
197	197	(6) a private club that does not employ any employees:
198	198	(A) unless the club is being used for a function
199	199	to which the general public is invited; and
200	200	(B) provided the private club is not established
201	201	for the sole purpose of avoiding compliance with this chapter;
202	202	(7) the outdoor area of a restaurant or bar, other than
203	203	the areas described by Section 169.053; or
204	204	(8) an outdoor porch or patio that is not accessible to
205	205	the public, other than the areas described by Section 169.053.
206	206	Sec. 169.056. DECLARATION OF ESTABLISHMENT AS NONSMOKING.
207	207	(a) An owner, operator, manager, or other person in control of an
208	208	establishment, facility, or outdoor area may declare that entire
209	209	establishment, facility, or outdoor area as a nonsmoking place.
210	210	(b) A person may not smoke in a place in which a sign
211	211	conforming to the requirements of Section 169.057 is posted.
212	212	Sec. 169.057. DUTIES OF OWNER, MANAGER, OR OPERATOR OF
213	213	PUBLIC PLACE OR EMPLOYER IN PLACE OF EMPLOYMENT. An owner, manager,
214	214	or operator of a public place or an employer in a place of
215	215	employment shall:
216	216	(1) post clearly and conspicuously in the public place
217	217	or place of employment, as applicable:
218	218	(A) a sign with the words "No Smoking"; or
219	219	(B) a sign with the international "No Smoking"
220	220	symbol, consisting of a pictorial representation of a burning
221	221	cigarette enclosed in a red circle with a red bar across the
222	222	cigarette;
223	223	(2) post at each entrance to the public place or place
224	224	of employment, as applicable, a conspicuous sign clearly stating
225	225	that smoking is prohibited; and
226	226	(3) remove all ashtrays from any area in which smoking
227	227	is prohibited.
228	228	[Sections 169.058-169.100 reserved for expansion]
229	229	SUBCHAPTER C. ENFORCEMENT AND PENALTIES
230	230	Sec. 169.101. ENFORCEMENT. (a) The department shall
231	231	enforce this chapter.
232	232	(b) An agency of this state or a political subdivision of
233	233	this state that issues a license, certificate, registration, or
234	234	other authority or permit to a business or to an owner, operator, or
235	235	other person in control of a business shall provide notice to each
236	236	applicant for the permit or authority of the provisions of this
237	237	chapter.
238	238	(c) A person may file a complaint concerning a violation of
239	239	this chapter with the department.
240	240	(d) The department or another agency of this state or a
241	241	political subdivision of this state designated by the department
242	242	may inspect an establishment for compliance with this chapter.
243	243	(e) An employer or an owner, manager, operator, or employee
244	244	of an establishment regulated under this chapter shall inform a
245	245	person violating this chapter of the appropriate provisions
246	246	pertaining to the violation.
247	247	Sec. 169.102. INJUNCTIVE RELIEF. In addition to the other
248	248	remedies provided by this chapter, the attorney general at the
249	249	request of the department, or a person aggrieved by a violation of
250	250	this chapter, may bring an action for injunctive relief to enforce
251	251	this chapter.
252	252	Sec. 169.103. OFFENSES; PENALTIES. (a) A person who
253	253	violates Section 169.051, 169.052, 169.053, 169.054, or 169.056(b)
254	254	commits an offense. An offense under this subsection is a Class C
255	255	misdemeanor punishable by a fine not to exceed $50.
256	256	(b) An owner, manager, or operator of a public place or an
257	257	employer in a place of employment, as applicable, who violates
258	258	Section 169.057 commits an offense. An offense under this
259	259	subsection is a Class C misdemeanor punishable by a fine not to
260	260	exceed $100.
261	261	(c) If it is shown on the trial of an offense under
262	262	Subsection (b) that the defendant has previously been finally
263	263	convicted of an offense under that subsection that occurred within
264	264	one year before the date of the offense that is the subject of the
265	265	trial, on conviction the defendant shall be punished by a fine not
266	266	to exceed $200.
267	267	(d) If it is shown on the trial of an offense under
268	268	Subsection (b) that the defendant has previously been finally
269	269	convicted of two offenses under that subsection that occurred
270	270	within one year before the date of the offense that is the subject
271	271	of the trial, on conviction the defendant shall be punished by a
272	272	fine not to exceed $500.
273	273	Sec. 169.104. SEPARATE VIOLATIONS. Each day on which a
274	274	violation of this chapter occurs is considered a separate and
275	275	distinct violation.
276	276	SECTION 2. The following are repealed:
277	277	(1) Section 48.01, Penal Code; and
278	278	(2) Section 2, Chapter 290 (S.B. 59), Acts of the 64th
279	279	Legislature, Regular Session, 1975.
280	280	SECTION 3. The repeal by this Act of Section 48.01, Penal
281	281	Code, does not apply to an offense committed under that section
282	282	before the effective date of this Act. An offense committed before
283	283	that date is covered by the law in effect on the date the offense was
284	284	committed, and the former law is continued in effect for that
285	285	purpose.
286	286	SECTION 4. This Act takes effect September 1, 2009.
287	287	* * * * *