By: Ellis, et al. S.B. No. 355
(In the Senate - Filed January 14, 2011; February 2, 2011,
read first time and referred to Committee on Health and Human
Services; March 14, 2011, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 5, Nays 4;
March 14, 2011, sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 355 By: Nichols
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, or 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.
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