By: Ellis, et al. S.B. No. 28
(In the Senate - Filed June 2, 2011; June 13, 2011, read
first time and referred to Committee on Health and Human Services;
June 20, 2011, reported favorably by the following vote: Yeas 5,
Nays 4; June 20, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to reducing state Medicaid and other health care costs by
prohibiting smoking in certain public places; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that the changes in law
made by this Act will reduce the state's costs for health care and
for treatment of smoking-related illness under governmentally
funded insurance programs for state employees and their dependents
and under other taxpayer-supported programs, such as Medicaid and
indigent health care.
SECTION 2. (a) Chapter 172, Health and Safety Code, as
added by this Act, takes effect on the 90th day after the date the
executive commissioner of the Health and Human Services Commission:
(1) certifies in writing that prohibiting smoking in
certain public places in accordance with Chapter 172, Health and
Safety Code, as added by this Act, will reduce this state's Medicaid
expenditures in the state fiscal biennium ending August 31, 2013,
by at least $10 million paid from any revenue source or by $4
million paid from the general revenue fund; and
(2) publishes the certification in the Texas Register.
(b) On publication of the certification as described by
Subdivision (2), Subsection (a) of this section, the Health and
Human Services Commission shall post on the commission's Internet
website a copy of that certification and notice of the requirements
of Chapter 172, Health and Safety Code, as added by this Act.
(c) Not later than the 30th day after the date the executive
commissioner of the Health and Human Services Commission publishes
the certification as described by Subdivision (2), Subsection (a)
of this section, the Department of State Health Services, the
Alcoholic Beverage Commission, and each county, public health
district, and local health department shall:
(1) post a copy of the certification on its Internet
website; or
(2) provide notice to holders subject to Chapter 172,
Health and Safety Code, as added by this Act, of the requirements of
that chapter.
(d) If the executive commissioner of the Health and Human
Services Commission fails to provide the certification required by
Subsection (a) of this section on or before January 1, 2012, this
Act expires and Chapter 172, Health and Safety Code, does not take
effect.
SECTION 3. Subtitle H, Title 2, Health and Safety Code, is
amended by adding Chapter 172 to read as follows:
CHAPTER 172. SMOKING PROHIBITED IN CERTAIN PUBLIC PLACES
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) "Department" means the Department of State Health
Services.
(3) "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.
(4) "Public place" means an enclosed area the public
is invited or allowed to enter, including a bar and a restaurant.
(5) "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.
(6) "Smoke" means to inhale, exhale, burn, or carry a
lighted cigar, cigarette, pipe, or other smoking equipment in any
manner.
(7) "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;
(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.
(8) "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
Section 172.053, this chapter applies only to a public place that is
owned, managed, operated, or controlled under a license,
certificate, registration, or other authority or permit issued for
the public place or to a person who owns, manages, operates, or
controls the public place by the Department of State Health
Services, the Alcoholic Beverage Commission, or a local health
department or, with respect to a permit requirement authorized by
Chapter 437, a county or public health district.
(b) Except as provided by Subsection (c), this chapter
preempts and supersedes a local ordinance, rule, or regulation
adopted by any political subdivision of this state relating to
smoking.
(c) 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.
(d) This chapter does not preempt or supersede Section
38.006, Education Code.
Sec. 172.003. OTHER APPLICABLE LAWS. This chapter may not
be construed to authorize smoking where it is restricted by other
applicable law.
Sec. 172.004. LIBERAL CONSTRUCTION. This chapter shall be
liberally construed to further its purpose.
[Sections 172.005-172.050 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. EXCEPTIONS. (a) This subchapter does not
apply to:
(1) a tobacco shop;
(2) a tobacco bar;
(3) the outdoor area of a restaurant or bar;
(4) an outdoor porch or patio that is not accessible to
the public;
(5) the set of a motion picture, television, or
theater production; or
(6) a convention of tobacco-related businesses in a
municipality where a convention of tobacco-related businesses is
expressly authorized under an applicable municipal ordinance.
(b) The exception under Subsection (a)(5) applies only to an
actor who is portraying the use of a tobacco product during the
motion picture, television, or theater production.
Sec. 172.053. DECLARATION OF ESTABLISHMENT AS NONSMOKING.
(a) An owner, operator, manager, or other person in control of any
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 172.054 is posted.
Sec. 172.054. DUTIES OF OWNER, MANAGER, OR OPERATOR OF
PUBLIC PLACE. An owner, manager, or operator of a public place
shall:
(1) post clearly and conspicuously in the public
place:
(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 a
conspicuous sign clearly stating that smoking is prohibited; and
(3) remove all ashtrays from any area in which smoking
is prohibited.
[Sections 172.055-172.100 reserved for expansion]
SUBCHAPTER C. ENFORCEMENT AND PENALTIES
Sec. 172.101. ENFORCEMENT. (a) The department shall
enforce this chapter.
(b) A governmental entity described by Section 172.002(a)
that issues a license, certificate, registration, or other
authority or permit for a public place or to a person who owns,
manages, operates, or controls the public place 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 or 172.053(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 who
violates Section 172.054 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.
(e) If conduct that constitutes an offense under this
section also constitutes an offense under another law, the offense
may be prosecuted under this section, the other law, or both this
section and the other law.
Sec. 172.104. SEPARATE VIOLATIONS. Each day on which a
violation of this chapter occurs is considered a separate
violation.
SECTION 4. This Act takes effect on the 91st day after the
last day of the legislative session.
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