Texas 2011 - 82nd Regular

Texas House Bill HB670 Compare Versions

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1	1	82R3601 YDB-F
2	2	By: Crownover, Zerwas, Pitts, Otto, Alvarado, H.B. No. 670
3	3	et al.
4	4
5	5
6	6	A BILL TO BE ENTITLED
7	7	AN ACT
8	8	relating to the elimination of smoking in certain workplaces and
9	9	public places; providing penalties.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Subtitle H, Title 2, Health and Safety Code, is
12	12	amended by adding Chapter 169 to read as follows:
13	13	CHAPTER 169. SMOKING PROHIBITED IN PUBLIC PLACES AND PLACES OF
14	14	EMPLOYMENT
15	15	SUBCHAPTER A. GENERAL PROVISIONS
16	16	Sec. 169.001. DEFINITIONS. In this chapter:
17	17	(1) "Bar" means an enclosed indoor establishment that
18	18	is open to the public and is devoted primarily to the sale and
19	19	service of alcoholic beverages for on-premises consumption.
20	20	(2) "Business" means:
21	21	(A) a sole proprietorship, partnership, joint
22	22	venture, corporation, or other business entity, either for-profit
23	23	or not-for-profit, including a retail establishment, where goods or
24	24	services are sold;
25	25	(B) a professional corporation or other entity
26	26	where legal, medical, dental, engineering, architectural, or other
27	27	professional services are delivered; or
28	28	(C) a private club.
29	29	(3) "Department" means the Department of State Health
30	30	Services.
31	31	(4) "Employee" means an individual who:
32	32	(A) is employed by an employer for direct or
33	33	indirect monetary wages or profit; or
34	34	(B) volunteers the individual's services for an
35	35	employer.
36	36	(5) "Employer" means a person who employs one or more
37	37	individuals or uses the volunteer services of one or more
38	38	individuals. The term includes:
39	39	(A) a nonprofit entity;
40	40	(B) the legislative, executive, and judicial
41	41	branches of state government; and
42	42	(C) any political subdivision of this state.
43	43	(6) "Enclosed area" means all space between a floor
44	44	and ceiling that is enclosed on all sides by solid walls or windows,
45	45	exclusive of doorways, that extend from the floor to the ceiling.
46	46	(7) "Health care facility" means an office or
47	47	institution in which care or treatment is provided for physical,
48	48	mental, or emotional diseases or other medical, physiological, or
49	49	psychological conditions.
50	50	(8) "Place of employment" means an enclosed area under
51	51	the control of an employer that is used by employees of the employer
52	52	but is not generally open to the public.
53	53	(9) "Private club" means an organization that:
54	54	(A) owns, leases, or occupies a building used
55	55	exclusively for club purposes at all times;
56	56	(B) is operated solely for a recreational,
57	57	fraternal, social, patriotic, political, benevolent, or athletic
58	58	purpose, but not for pecuniary gain;
59	59	(C) sells alcoholic beverages only incidentally
60	60	to its operation;
61	61	(D) is managed by a board of directors or similar
62	62	body chosen by the members at an annual meeting;
63	63	(E) has established bylaws or a constitution to
64	64	govern the club's activities; and
65	65	(F) is exempt from federal income taxation under
66	66	Section 501(a), Internal Revenue Code of 1986, as a club described
67	67	by Section 501(c)(7) of that code.
68	68	(10) "Public place" means:
69	69	(A) an enclosed area the public is invited or
70	70	allowed to enter, including all or part of the following:
71	71	(i) a restaurant;
72	72	(ii) a bar;
73	73	(iii) a retail or service establishment;
74	74	(iv) a facility of a business or nonprofit
75	75	entity;
76	76	(v) a shopping mall;
77	77	(vi) a convention facility;
78	78	(vii) a theater or other facility primarily
79	79	used for exhibiting a performance;
80	80	(viii) a sports arena;
81	81	(ix) a health care facility;
82	82	(x) a licensed child-care or adult day-care
83	83	facility;
84	84	(xi) a polling place;
85	85	(xii) a room in which a public meeting under
86	86	the control of this state, an agency or branch of government of this
87	87	state, or a political subdivision of this state is in progress;
88	88	(xiii) a common area in a multiple-unit
89	89	residential facility;
90	90	(xiv) a public transportation facility,
91	91	including a bus or taxicab, and a ticket, boarding, or waiting area
92	92	of a public transportation depot;
93	93	(xv) a waiting room, hallway, room, or ward
94	94	in a health care facility; or
95	95	(xvi) a restroom, lobby, reception area,
96	96	service line, hallway, elevator, or other common-use area the
97	97	public is invited or allowed to enter; or
98	98	(B) a facility or vehicle of this state or of a
99	99	local government, including a building or vehicle owned, leased, or
100	100	operated by this state or the local government, regardless of
101	101	whether the public is invited or allowed to enter.
102	102	(11) "Restaurant" means an enclosed indoor
103	103	establishment that is open to the public and is devoted primarily to
104	104	the sale and service of food for immediate consumption. The term
105	105	includes a bar located at the establishment.
106	106	(12) "Retail or service establishment" means an
107	107	establishment that sells goods or services to the public.
108	108	(13) "Service line" means an indoor line in which one
109	109	or more persons wait for or receive service, whether or not the
110	110	service involves the exchange of money.
111	111	(14) "Shopping mall" means an enclosed public walkway
112	112	or hall area that connects retail, service, or professional
113	113	establishments.
114	114	(15) "Smoke" means to inhale, exhale, burn, or carry a
115	115	lighted cigar, cigarette, pipe, or other smoking equipment in any
116	116	manner.
117	117	(16) "Sports arena" means a place in which a person
118	118	engages in physical exercise, participates in athletic
119	119	competition, or witnesses sports or other events.
120	120	(17) "Tobacco bar" means a business that:
121	121	(A) has in excess of 15 percent of gross sales in
122	122	tobacco products, as that term is defined by Section 155.001, Tax
123	123	Code;
124	124	(B) holds a permit under Chapter 155, Tax Code;
125	125	and
126	126	(C) holds an alcoholic beverage permit or license
127	127	issued under Chapter 25, 28, 32, or 69, Alcoholic Beverage Code, or
128	128	under Section 11.10, Alcoholic Beverage Code.
129	129	(18) "Tobacco shop" means a business primarily devoted
130	130	to the sale of tobacco products, as that term is defined by Section
131	131	155.001, Tax Code, that does not hold an alcoholic beverage permit
132	132	or license.
133	133	Sec. 169.002. APPLICABILITY. (a) Except as provided by
134	134	Subsection (b), this chapter preempts and supersedes a local
135	135	ordinance, rule, or regulation adopted by any political subdivision
136	136	of this state relating to smoking.
137	137	(b) To the extent that a local ordinance, rule, or
138	138	regulation adopted by a political subdivision of this state
139	139	prohibits or restricts smoking to a greater degree than this
140	140	chapter, the ordinance, rule, or regulation is not preempted or
141	141	superseded by this chapter.
142	142	(c) This chapter does not preempt or supersede Section
143	143	38.006, Education Code.
144	144	Sec. 169.003. PUBLIC EDUCATION. The department shall
145	145	engage in a continuing program to explain and clarify the purpose
146	146	and requirements of this chapter and to guide employers, owners,
147	147	operators, and managers in complying with this chapter. The
148	148	program may include publication of a brochure for businesses and
149	149	individuals that explains the provisions of this chapter.
150	150	Sec. 169.004. GOVERNMENT AGENCY COOPERATION. The
151	151	department shall annually request other government agencies to
152	152	establish local operating procedures to comply with this chapter.
153	153	This request may include urging all federal, state, county, and
154	154	municipal agencies and all independent school districts to update
155	155	existing smoking control regulations to be consistent with the
156	156	current health findings regarding secondhand smoke.
157	157	Sec. 169.005. OTHER APPLICABLE LAWS. This chapter may not
158	158	be construed to authorize smoking where it is restricted by other
159	159	applicable law.
160	160	Sec. 169.006. LIBERAL CONSTRUCTION. This chapter shall be
161	161	liberally construed to further its purpose.
162	162	[Sections 169.007-169.050 reserved for expansion]
163	163	SUBCHAPTER B. PROHIBITED ACTS
164	164	Sec. 169.051. SMOKING PROHIBITED IN PUBLIC PLACES. A
165	165	person may not smoke in a public place in this state.
166	166	Sec. 169.052. SMOKING PROHIBITED IN PLACE OF EMPLOYMENT. A
167	167	person may not smoke in a place of employment.
168	168	Sec. 169.053. PROHIBITION OF SMOKING IN SEATING AREA AT AN
169	169	OUTDOOR EVENT. A person may not smoke in:
170	170	(1) the seating area of an outdoor arena, stadium, or
171	171	amphitheater; or
172	172	(2) bleachers or grandstands for use by spectators at
173	173	a sporting or other public event.
174	174	Sec. 169.054. EXCEPTIONS. This subchapter does not apply
175	175	to:
176	176	(1) a private residence, except when used as a
177	177	child-care, adult day-care, or health care facility;
178	178	(2) a hotel or motel room rented to a guest and
179	179	designated as a smoking room, if:
180	180	(A) not more than 20 percent of rooms rented to
181	181	guests in a hotel or motel are designated as smoking rooms;
182	182	(B) all smoking rooms in the hotel or motel on the
183	183	same floor are contiguous;
184	184	(C) smoke from smoking rooms does not enter an
185	185	area in which smoking is prohibited; and
186	186	(D) nonsmoking rooms are not converted to smoking
187	187	rooms;
188	188	(3) a nursing home or long-term care facility;
189	189	(4) a tobacco shop;
190	190	(5) a tobacco bar;
191	191	(6) a private club that does not employ any employees:
192	192	(A) unless the club is being used for a function
193	193	to which the general public is invited; and
194	194	(B) provided the private club is not established
195	195	for the sole purpose of avoiding compliance with this chapter;
196	196	(7) the outdoor area of a restaurant or bar, other than
197	197	the areas described by Section 169.053;
198	198	(8) an outdoor porch or patio that is not accessible to
199	199	the public, other than the areas described by Section 169.053;
200	200	(9) an enclosed workplace where tobacco or a tobacco
201	201	product is heated, burned, smoked, or tested by a manufacturer,
202	202	importer, or distributor of tobacco or tobacco products or by a
203	203	tobacco leaf dealer as a necessary and integral part of the making,
204	204	manufacturing, importing, or distributing of the tobacco or tobacco
205	205	product for eventual retail sale; or
206	206	(10) a convention of tobacco-related businesses in a
207	207	municipality where a convention of tobacco-related businesses is
208	208	expressly authorized under an applicable municipal ordinance.
209	209	Sec. 169.055. DECLARATION OF ESTABLISHMENT AS NONSMOKING.
210	210	(a) An owner, operator, manager, or other person in control of an
211	211	establishment, facility, or outdoor area may declare that entire
212	212	establishment, facility, or outdoor area as a nonsmoking place.
213	213	(b) A person may not smoke in a place in which a sign
214	214	conforming to the requirements of Section 169.056 is posted.
215	215	Sec. 169.056. DUTIES OF OWNER, MANAGER, OR OPERATOR OF
216	216	PUBLIC PLACE OR EMPLOYER IN PLACE OF EMPLOYMENT. An owner, manager,
217	217	or operator of a public place or an employer in a place of
218	218	employment shall:
219	219	(1) post clearly and conspicuously in the public place
220	220	or place of employment, as applicable:
221	221	(A) a sign with the words "No Smoking"; or
222	222	(B) a sign with the international "No Smoking"
223	223	symbol, consisting of a pictorial representation of a burning
224	224	cigarette enclosed in a red circle with a red bar across the
225	225	cigarette;
226	226	(2) post at each entrance to the public place or place
227	227	of employment, as applicable, a conspicuous sign clearly stating
228	228	that smoking is prohibited; and
229	229	(3) remove all ashtrays from any area in which smoking
230	230	is prohibited.
231	231	[Sections 169.057-169.100 reserved for expansion]
232	232	SUBCHAPTER C. ENFORCEMENT AND PENALTIES
233	233	Sec. 169.101. ENFORCEMENT. (a) The department shall
234	234	enforce this chapter.
235	235	(b) An agency of this state or a political subdivision of
236	236	this state that issues a license, certificate, registration, or
237	237	other authority or permit to a business or to an owner, operator, or
238	238	other person in control of a business shall provide notice to each
239	239	applicant for the permit or authority of the provisions of this
240	240	chapter.
241	241	(c) A person may file with the department a complaint
242	242	concerning a violation of this chapter.
243	243	(d) The department or another agency of this state or a
244	244	political subdivision of this state designated by the department
245	245	may inspect an establishment for compliance with this chapter.
246	246	(e) An employer or an owner, manager, operator, or employee
247	247	of an establishment regulated under this chapter shall inform a
248	248	person violating this chapter of the appropriate provisions
249	249	pertaining to the violation.
250	250	Sec. 169.102. INJUNCTIVE RELIEF. In addition to the other
251	251	remedies provided by this chapter, the attorney general at the
252	252	request of the department, or a person aggrieved by a violation of
253	253	this chapter, may bring an action for injunctive relief to enforce
254	254	this chapter.
255	255	Sec. 169.103. OFFENSES; PENALTIES. (a) A person who
256	256	violates Section 169.051, 169.052, 169.053, or 169.055(b) commits
257	257	an offense. An offense under this subsection is a Class C
258	258	misdemeanor punishable by a fine not to exceed $50.
259	259	(b) An owner, manager, or operator of a public place or an
260	260	employer in a place of employment, as applicable, who violates
261	261	Section 169.056 commits an offense. An offense under this
262	262	subsection is a Class C misdemeanor punishable by a fine not to
263	263	exceed $100.
264	264	(c) If it is shown on the trial of an offense under
265	265	Subsection (b) that the defendant has previously been finally
266	266	convicted of an offense under that subsection that occurred within
267	267	one year before the date of the offense that is the subject of the
268	268	trial, on conviction the defendant shall be punished by a fine not
269	269	to exceed $200.
270	270	(d) If it is shown on the trial of an offense under
271	271	Subsection (b) that the defendant has previously been finally
272	272	convicted of two offenses under that subsection that occurred
273	273	within one year before the date of the offense that is the subject
274	274	of the trial, on conviction the defendant shall be punished by a
275	275	fine not to exceed $500.
276	276	Sec. 169.104. SEPARATE VIOLATIONS. Each day on which a
277	277	violation of this chapter occurs is considered a separate
278	278	violation.
279	279	SECTION 2. The following are repealed:
280	280	(1) Section 48.01, Penal Code; and
281	281	(2) Section 2, Chapter 290 (S.B. 59), Acts of the 64th
282	282	Legislature, Regular Session, 1975.
283	283	SECTION 3. The repeal by this Act of Section 48.01, Penal
284	284	Code, does not apply to an offense committed under that section
285	285	before the effective date of this Act. An offense committed before
286	286	that date is covered by the law in effect on the date the offense was
287	287	committed, and the former law is continued in effect for that
288	288	purpose.
289	289	SECTION 4. This Act takes effect September 1, 2011.