Texas 2011 - 82nd Regular

Texas Senate Bill SB355 Compare Versions

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1	1	By: Ellis, et al. S.B. No. 355
2	2	(In the Senate - Filed January 14, 2011; February 2, 2011,
3	3	read first time and referred to Committee on Health and Human
4	4	Services; March 14, 2011, reported adversely, with favorable
5	5	Committee Substitute by the following vote: Yeas 5, Nays 4;
6	6	March 14, 2011, sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 355 By: Nichols
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 AND PLACES OF
18	18	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) "Department" means the Department of State Health
34	34	Services.
35	35	(4) "Employee" means an individual who:
36	36	(A) is employed by an employer for direct or
37	37	indirect monetary wages or profit; or
38	38	(B) volunteers the individual's services for an
39	39	employer.
40	40	(5) "Employer" means a person who employs one or more
41	41	individuals or uses the volunteer services of one or more
42	42	individuals. The term includes:
43	43	(A) a nonprofit entity;
44	44	(B) the legislative, executive, and judicial
45	45	branches of state government; and
46	46	(C) any political subdivision of this state.
47	47	(6) "Enclosed area" means all space between a floor
48	48	and ceiling that is enclosed on all sides by solid walls or windows,
49	49	exclusive of doorways, that extend from the floor to the ceiling.
50	50	(7) "Health care facility" means an office or
51	51	institution in which care or treatment is provided for physical,
52	52	mental, or emotional diseases or other medical, physiological, or
53	53	psychological conditions.
54	54	(8) "Place of employment" means an enclosed area under
55	55	the control of an employer that is used by employees of the employer
56	56	but is not generally open to the public.
57	57	(9) "Private club" means an organization that:
58	58	(A) owns, leases, or occupies a building used
59	59	exclusively for club purposes at all times;
60	60	(B) is operated solely for a recreational,
61	61	fraternal, social, patriotic, political, benevolent, or athletic
62	62	purpose, but not for pecuniary gain;
63	63	(C) sells alcoholic beverages only incidentally
64	64	to its operation;
65	65	(D) is managed by a board of directors or similar
66	66	body chosen by the members at an annual meeting;
67	67	(E) has established bylaws or a constitution to
68	68	govern the club's activities; and
69	69	(F) is exempt from federal income taxation under
70	70	Section 501(a), Internal Revenue Code of 1986, as a club described
71	71	by Section 501(c)(7) of that code.
72	72	(10) "Public place" means:
73	73	(A) an enclosed area the public is invited or
74	74	allowed to enter, including all or part of the following:
75	75	(i) a restaurant;
76	76	(ii) a bar;
77	77	(iii) a retail or service establishment;
78	78	(iv) a facility of a business or nonprofit
79	79	entity;
80	80	(v) a shopping mall;
81	81	(vi) a convention facility;
82	82	(vii) a theater or other facility primarily
83	83	used for exhibiting a performance;
84	84	(viii) a sports arena;
85	85	(ix) a health care facility;
86	86	(x) a licensed child-care or adult day-care
87	87	facility;
88	88	(xi) a polling place;
89	89	(xii) a room in which a public meeting under
90	90	the control of this state, an agency or branch of government of this
91	91	state, or a political subdivision of this state is in progress;
92	92	(xiii) a common area in a multiple-unit
93	93	residential facility;
94	94	(xiv) a public transportation facility,
95	95	including a bus or taxicab, and a ticket, boarding, or waiting area
96	96	of a public transportation depot;
97	97	(xv) a waiting room, hallway, room, or ward
98	98	in a health care facility; or
99	99	(xvi) a restroom, lobby, reception area,
100	100	service line, hallway, elevator, or other common-use area the
101	101	public is invited or allowed to enter; or
102	102	(B) a facility or vehicle of this state or of a
103	103	local government, including a building or vehicle owned, leased, or
104	104	operated by this state or the local government, regardless of
105	105	whether the public is invited or allowed to enter.
106	106	(11) "Restaurant" means an enclosed indoor
107	107	establishment that is open to the public and is devoted primarily to
108	108	the sale and service of food for immediate consumption. The term
109	109	includes a bar located at the establishment.
110	110	(12) "Retail or service establishment" means an
111	111	establishment that sells goods or services to the public.
112	112	(13) "Service line" means an indoor line in which one
113	113	or more persons wait for or receive service, whether or not the
114	114	service involves the exchange of money.
115	115	(14) "Shopping mall" means an enclosed public walkway
116	116	or hall area that connects retail, service, or professional
117	117	establishments.
118	118	(15) "Smoke" means to inhale, exhale, burn, or carry a
119	119	lighted cigar, cigarette, or pipe or other smoking equipment in any
120	120	manner.
121	121	(16) "Sports arena" means a place in which a person
122	122	engages in physical exercise, participates in athletic
123	123	competition, or witnesses sports or other events.
124	124	(17) "Tobacco bar" means a business that:
125	125	(A) has in excess of 15 percent of gross sales in
126	126	tobacco products, as that term is defined by Section 155.001, Tax
127	127	Code;
128	128	(B) holds a permit under Chapter 155, Tax Code;
129	129	and
130	130	(C) holds an alcoholic beverage permit or license
131	131	issued under Chapter 25, 28, 32, or 69, Alcoholic Beverage Code, or
132	132	under Section 11.10, Alcoholic Beverage Code.
133	133	(18) "Tobacco shop" means a business primarily devoted
134	134	to the sale of tobacco products, as that term is defined by Section
135	135	155.001, Tax Code, that does not hold an alcoholic beverage permit
136	136	or license.
137	137	Sec. 169.002. APPLICABILITY. (a) Except as provided by
138	138	Subsection (b), this chapter preempts and supersedes a local
139	139	ordinance, rule, or regulation adopted by any political subdivision
140	140	of this state relating to smoking.
141	141	(b) To the extent that a local ordinance, rule, or
142	142	regulation adopted by a political subdivision of this state
143	143	prohibits or restricts smoking to a greater degree than this
144	144	chapter, the ordinance, rule, or regulation is not preempted or
145	145	superseded by this chapter.
146	146	(c) This chapter does not preempt or supersede Section
147	147	38.006, Education Code.
148	148	Sec. 169.003. PUBLIC EDUCATION. The department shall
149	149	engage in a continuing program to explain and clarify the purpose
150	150	and requirements of this chapter and to guide employers, owners,
151	151	operators, and managers in complying with this chapter. The
152	152	program may include publication of a brochure for businesses and
153	153	individuals that explains the provisions of this chapter.
154	154	Sec. 169.004. GOVERNMENT AGENCY COOPERATION. The
155	155	department shall annually request other government agencies to
156	156	establish local operating procedures to comply with this chapter.
157	157	This request may include urging all federal, state, county, and
158	158	municipal agencies and all independent school districts to update
159	159	existing smoking control regulations to be consistent with the
160	160	current health findings regarding secondhand smoke.
161	161	Sec. 169.005. OTHER APPLICABLE LAWS. This chapter may not
162	162	be construed to authorize smoking where it is restricted by other
163	163	applicable law.
164	164	Sec. 169.006. LIBERAL CONSTRUCTION. This chapter shall be
165	165	liberally construed to further its purpose.
166	166	[Sections 169.007-169.050 reserved for expansion]
167	167	SUBCHAPTER B. PROHIBITED ACTS
168	168	Sec. 169.051. SMOKING PROHIBITED IN PUBLIC PLACES. A
169	169	person may not smoke in a public place in this state.
170	170	Sec. 169.052. SMOKING PROHIBITED IN PLACE OF EMPLOYMENT. A
171	171	person may not smoke in a place of employment.
172	172	Sec. 169.053. PROHIBITION OF SMOKING IN SEATING AREA AT AN
173	173	OUTDOOR EVENT. A person may not smoke in:
174	174	(1) the seating area of an outdoor arena, stadium, or
175	175	amphitheater; or
176	176	(2) bleachers or grandstands for use by spectators at
177	177	a sporting or other public event.
178	178	Sec. 169.054. EXCEPTIONS. This subchapter does not apply
179	179	to:
180	180	(1) a private residence, except when used as a
181	181	child-care, adult day-care, or health care facility;
182	182	(2) a hotel or motel room rented to a guest and
183	183	designated as a smoking room, if:
184	184	(A) not more than 20 percent of rooms rented to
185	185	guests in a hotel or motel are designated as smoking rooms;
186	186	(B) all smoking rooms in the hotel or motel on the
187	187	same floor are contiguous;
188	188	(C) smoke from smoking rooms does not enter an
189	189	area in which smoking is prohibited; and
190	190	(D) nonsmoking rooms are not converted to smoking
191	191	rooms;
192	192	(3) a nursing home or long-term care facility;
193	193	(4) a tobacco shop;
194	194	(5) a tobacco bar;
195	195	(6) a private club that does not employ any employees:
196	196	(A) unless the club is being used for a function
197	197	to which the general public is invited; and
198	198	(B) provided the private club is not established
199	199	for the sole purpose of avoiding compliance with this chapter;
200	200	(7) the outdoor area of a restaurant or bar, other than
201	201	the areas described by Section 169.053;
202	202	(8) an outdoor porch or patio that is not accessible to
203	203	the public, other than the areas described by Section 169.053;
204	204	(9) an enclosed workplace where tobacco or a tobacco
205	205	product is heated, burned, smoked, or tested by a manufacturer,
206	206	importer, or distributor of tobacco or tobacco products or by a
207	207	tobacco leaf dealer as a necessary and integral part of the making,
208	208	manufacturing, importing, or distributing of the tobacco or tobacco
209	209	product for eventual retail sale; or
210	210	(10) a convention of tobacco-related businesses in a
211	211	municipality where a convention of tobacco-related businesses is
212	212	expressly authorized under an applicable municipal ordinance.
213	213	Sec. 169.055. DECLARATION OF ESTABLISHMENT AS NONSMOKING.
214	214	(a) An owner, operator, manager, or other person in control of an
215	215	establishment, facility, or outdoor area may declare that entire
216	216	establishment, facility, or outdoor area as a nonsmoking place.
217	217	(b) A person may not smoke in a place in which a sign
218	218	conforming to the requirements of Section 169.056 is posted.
219	219	Sec. 169.056. DUTIES OF OWNER, MANAGER, OR OPERATOR OF
220	220	PUBLIC PLACE OR EMPLOYER IN PLACE OF EMPLOYMENT. An owner, manager,
221	221	or operator of a public place or an employer in a place of
222	222	employment shall:
223	223	(1) post clearly and conspicuously in the public place
224	224	or place of employment, as applicable:
225	225	(A) a sign with the words "No Smoking"; or
226	226	(B) a sign with the international "No Smoking"
227	227	symbol, consisting of a pictorial representation of a burning
228	228	cigarette enclosed in a red circle with a red bar across the
229	229	cigarette;
230	230	(2) post at each entrance to the public place or place
231	231	of employment, as applicable, a conspicuous sign clearly stating
232	232	that smoking is prohibited; and
233	233	(3) remove all ashtrays from any area in which smoking
234	234	is prohibited.
235	235	[Sections 169.057-169.100 reserved for expansion]
236	236	SUBCHAPTER C. ENFORCEMENT AND PENALTIES
237	237	Sec. 169.101. ENFORCEMENT. (a) The department shall
238	238	enforce this chapter.
239	239	(b) An agency of this state or a political subdivision of
240	240	this state that issues a license, certificate, registration, or
241	241	other authority or permit to a business or to an owner, operator, or
242	242	other person in control of a business shall provide notice to each
243	243	applicant for the permit or authority of the provisions of this
244	244	chapter.
245	245	(c) A person may file with the department a complaint
246	246	concerning a violation of this chapter.
247	247	(d) The department or another agency of this state or a
248	248	political subdivision of this state designated by the department
249	249	may inspect an establishment for compliance with this chapter.
250	250	(e) An employer or an owner, manager, operator, or employee
251	251	of an establishment regulated under this chapter shall inform a
252	252	person violating this chapter of the appropriate provisions
253	253	pertaining to the violation.
254	254	Sec. 169.102. INJUNCTIVE RELIEF. In addition to the other
255	255	remedies provided by this chapter, the attorney general at the
256	256	request of the department, or a person aggrieved by a violation of
257	257	this chapter, may bring an action for injunctive relief to enforce
258	258	this chapter.
259	259	Sec. 169.103. OFFENSES; PENALTIES. (a) A person who
260	260	violates Section 169.051, 169.052, 169.053, or 169.055(b) commits
261	261	an offense. An offense under this subsection is a Class C
262	262	misdemeanor punishable by a fine not to exceed $50.
263	263	(b) An owner, manager, or operator of a public place or an
264	264	employer in a place of employment, as applicable, who violates
265	265	Section 169.056 commits an offense. An offense under this
266	266	subsection is a Class C misdemeanor punishable by a fine not to
267	267	exceed $100.
268	268	(c) If it is shown on the trial of an offense under
269	269	Subsection (b) that the defendant has previously been finally
270	270	convicted of an offense under that subsection that occurred within
271	271	one year before the date of the offense that is the subject of the
272	272	trial, on conviction the defendant shall be punished by a fine not
273	273	to exceed $200.
274	274	(d) If it is shown on the trial of an offense under
275	275	Subsection (b) that the defendant has previously been finally
276	276	convicted of two offenses under that subsection that occurred
277	277	within one year before the date of the offense that is the subject
278	278	of the trial, on conviction the defendant shall be punished by a
279	279	fine not to exceed $500.
280	280	Sec. 169.104. SEPARATE VIOLATIONS. Each day on which a
281	281	violation of this chapter occurs is considered a separate
282	282	violation.
283	283	SECTION 2. The following are repealed:
284	284	(1) Section 48.01, Penal Code; and
285	285	(2) Section 2, Chapter 290 (S.B. 59), Acts of the 64th
286	286	Legislature, Regular Session, 1975.
287	287	SECTION 3. The repeal by this Act of Section 48.01, Penal
288	288	Code, does not apply to an offense committed under that section
289	289	before the effective date of this Act. An offense committed before
290	290	that date is covered by the law in effect on the date the offense was
291	291	committed, and the former law is continued in effect for that
292	292	purpose.
293	293	SECTION 4. This Act takes effect September 1, 2011.
294	294	* * * * *