Texas 2015 - 84th Regular

Texas Senate Bill SB87 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R624 KKR-F
2	2	By: Ellis S.B. No. 87
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the elimination of smoking in certain workplaces and
8	8	public places; providing penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subtitle H, Title 2, Health and Safety Code, is
11	11	amended by adding Chapter 172 to read as follows:
12	12	CHAPTER 172. SMOKING PROHIBITED IN PUBLIC PLACES AND PLACES OF
13	13	EMPLOYMENT
14	14	SUBCHAPTER A. GENERAL PROVISIONS
15	15	Sec. 172.001. DEFINITIONS. In this chapter:
16	16	(1) "Bar" means an enclosed indoor establishment that
17	17	is open to the public and is devoted primarily to the sale and
18	18	service of alcoholic beverages for on-premises consumption.
19	19	(2) "Business" means:
20	20	(A) a sole proprietorship, partnership, joint
21	21	venture, corporation, or other business entity, either for-profit
22	22	or not-for-profit, including a retail establishment, where goods or
23	23	services are sold;
24	24	(B) a professional corporation or other entity
25	25	where legal, medical, dental, engineering, architectural, or other
26	26	professional services are delivered; or
27	27	(C) a private club.
28	28	(3) "Department" means the Department of State Health
29	29	Services.
30	30	(4) "Employee" means an individual who:
31	31	(A) is employed by an employer for direct or
32	32	indirect monetary wages or profit; or
33	33	(B) volunteers the individual's services for an
34	34	employer.
35	35	(5) "Employer" means a person who employs one or more
36	36	individuals or uses the volunteer services of one or more
37	37	individuals. The term includes:
38	38	(A) a nonprofit entity;
39	39	(B) the legislative, executive, and judicial
40	40	branches of state government; and
41	41	(C) any political subdivision of this state.
42	42	(6) "Enclosed area" means all space between a floor
43	43	and ceiling that is enclosed on all sides by solid walls or windows,
44	44	exclusive of doorways, that extend from the floor to the ceiling.
45	45	(7) "Health care facility" means an office or
46	46	institution in which care or treatment is provided for physical,
47	47	mental, or emotional diseases or other medical, physiological, or
48	48	psychological conditions.
49	49	(8) "Place of employment" means an enclosed area under
50	50	the control of an employer that is used by employees of the employer
51	51	but is not generally open to the public.
52	52	(9) "Private club" means an organization that:
53	53	(A) owns, leases, or occupies a building used
54	54	exclusively for club purposes at all times;
55	55	(B) is operated solely for a recreational,
56	56	fraternal, social, patriotic, political, benevolent, or athletic
57	57	purpose, but not for pecuniary gain;
58	58	(C) sells alcoholic beverages only incidentally
59	59	to its operation;
60	60	(D) is managed by a board of directors or similar
61	61	body chosen by the members at an annual meeting;
62	62	(E) has established bylaws or a constitution to
63	63	govern the club's activities; and
64	64	(F) is exempt from federal income taxation under
65	65	Section 501(a), Internal Revenue Code of 1986, as a club described
66	66	by Section 501(c)(7) of that code.
67	67	(10) "Public place" means:
68	68	(A) an enclosed area the public is invited or
69	69	allowed to enter, including all or part of the following:
70	70	(i) a restaurant;
71	71	(ii) a bar;
72	72	(iii) a retail or service establishment;
73	73	(iv) a facility of a business or nonprofit
74	74	entity;
75	75	(v) a shopping mall;
76	76	(vi) a convention facility;
77	77	(vii) a theater or other facility primarily
78	78	used for exhibiting a performance;
79	79	(viii) a sports arena;
80	80	(ix) a health care facility;
81	81	(x) a licensed child-care or adult day-care
82	82	facility;
83	83	(xi) a polling place;
84	84	(xii) a room in which a public meeting under
85	85	the control of this state, an agency or branch of government of this
86	86	state, or a political subdivision of this state is in progress;
87	87	(xiii) a common area in a multiple-unit
88	88	residential facility;
89	89	(xiv) a public transportation facility,
90	90	including a bus or taxicab, and a ticket, boarding, or waiting area
91	91	of a public transportation depot;
92	92	(xv) a waiting room, hallway, room, or ward
93	93	in a health care facility; or
94	94	(xvi) a restroom, lobby, reception area,
95	95	service line, hallway, elevator, or other common-use area the
96	96	public is invited or allowed to enter; or
97	97	(B) a facility or vehicle of this state or of a
98	98	local government, including a building or vehicle owned, leased, or
99	99	operated by this state or the local government, regardless of
100	100	whether the public is invited or allowed to enter.
101	101	(11) "Restaurant" means an enclosed indoor
102	102	establishment that is open to the public and is devoted primarily to
103	103	the sale and service of food for immediate consumption. The term
104	104	includes a bar located at the establishment.
105	105	(12) "Retail or service establishment" means an
106	106	establishment that sells goods or services to the public.
107	107	(13) "Service line" means an indoor line in which one
108	108	or more persons wait for or receive service, whether or not the
109	109	service involves the exchange of money.
110	110	(14) "Shopping mall" means an enclosed public walkway
111	111	or hall area that connects retail, service, or professional
112	112	establishments.
113	113	(15) "Smoke" means to inhale, exhale, burn, or carry a
114	114	lighted cigar, cigarette, pipe, or other smoking equipment in any
115	115	manner.
116	116	(16) "Sports arena" means a place in which a person
117	117	engages in physical exercise, participates in athletic
118	118	competition, or witnesses sports or other events.
119	119	(17) "Tobacco bar" means a business that:
120	120	(A) has in excess of 15 percent of gross sales in
121	121	tobacco products, as that term is defined by Section 155.001, Tax
122	122	Code, excluding sales derived from vending machines or the use of
123	123	hookahs;
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 product manufacturing facility" means a
130	130	building that is owned or leased by a for-profit business that
131	131	manufactures tobacco products intended to be smoked and that is
132	132	used for the testing or development of tobacco products. The term
133	133	does not include a retail store, membership club, tobacco
134	134	distributor, or tobacco storage facility.
135	135	(19) "Tobacco shop" means a business primarily devoted
136	136	to the sale of tobacco products, as that term is defined by Section
137	137	155.001, Tax Code, that does not hold an alcoholic beverage permit
138	138	or license.
139	139	Sec. 172.002. APPLICABILITY. (a) Except as provided by
140	140	Subsection (b), this chapter preempts and supersedes a local
141	141	ordinance, rule, or regulation adopted by any political subdivision
142	142	of this state relating to smoking.
143	143	(b) To the extent that a local ordinance, rule, or
144	144	regulation adopted by a political subdivision of this state
145	145	prohibits or restricts smoking to a greater degree than this
146	146	chapter, the ordinance, rule, or regulation is not preempted or
147	147	superseded by this chapter.
148	148	(c) This chapter does not preempt or supersede Section
149	149	38.006, Education Code.
150	150	Sec. 172.003. PUBLIC EDUCATION. The department shall
151	151	engage in a continuing program to explain and clarify the purpose
152	152	and requirements of this chapter and to guide employers, owners,
153	153	operators, and managers in complying with this chapter. The
154	154	program may include publication of a brochure for businesses and
155	155	individuals that explains the provisions of this chapter.
156	156	Sec. 172.004. GOVERNMENT AGENCY COOPERATION. The
157	157	department shall annually request other government agencies to
158	158	establish local operating procedures to comply with this chapter.
159	159	This request may include urging all federal, state, county, and
160	160	municipal agencies and all independent school districts to update
161	161	existing smoking control regulations to be consistent with the
162	162	current health findings regarding secondhand smoke.
163	163	Sec. 172.005. OTHER APPLICABLE LAWS. This chapter may not
164	164	be construed to authorize smoking where it is restricted by other
165	165	applicable law.
166	166	Sec. 172.006. LIBERAL CONSTRUCTION. This chapter shall be
167	167	liberally construed to further its purpose.
168	168	SUBCHAPTER B. PROHIBITED ACTS
169	169	Sec. 172.051. SMOKING PROHIBITED IN PUBLIC PLACES. A
170	170	person may not smoke in a public place in this state.
171	171	Sec. 172.052. SMOKING PROHIBITED IN PLACE OF EMPLOYMENT. A
172	172	person may not smoke in a place of employment in this state.
173	173	Sec. 172.053. PROHIBITION OF SMOKING IN SEATING AREA AT AN
174	174	OUTDOOR EVENT. A person may not smoke in:
175	175	(1) the seating area of an outdoor arena, stadium, or
176	176	amphitheater in this state; or
177	177	(2) bleachers or grandstands for use by spectators at
178	178	a sporting or other public event held in this state.
179	179	Sec. 172.054. EXCEPTIONS. (a) This subchapter does not
180	180	apply to:
181	181	(1) a private residence, except when used as a
182	182	child-care, adult day-care, or health care facility;
183	183	(2) a hotel or motel room rented to a guest and
184	184	designated as a smoking room, if:
185	185	(A) not more than 20 percent of rooms rented to
186	186	guests in a hotel or motel are designated as smoking rooms;
187	187	(B) all smoking rooms in the hotel or motel on the
188	188	same floor are contiguous;
189	189	(C) smoke from smoking rooms does not enter an
190	190	area in which smoking is prohibited; and
191	191	(D) nonsmoking rooms are not converted to smoking
192	192	rooms;
193	193	(3) a nursing home or long-term care facility;
194	194	(4) a tobacco shop;
195	195	(5) a tobacco bar that was in operation on May 15,
196	196	2015;
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 172.053;
204	204	(8) an outdoor porch or patio that is not accessible to
205	205	the public, other than the areas described by Section 172.053; or
206	206	(9) except as provided by Subsection (b), a tobacco
207	207	product manufacturing facility that complies with the following
208	208	requirements:
209	209	(A) smoke from the facility does not migrate into
210	210	an enclosed area where smoking is prohibited under this chapter;
211	211	(B) the facility is a freestanding structure that
212	212	does not share a common wall with another establishment or business
213	213	and that is occupied solely by the tobacco product manufacturer;
214	214	(C) the facility does not employ any individual
215	215	under the age of 18;
216	216	(D) the facility does not allow a guest or member
217	217	of the public to enter an area where a tobacco product is being
218	218	smoked;
219	219	(E) the facility does not allow a guest, member
220	220	of the public, or employee to roll the individual's own tobacco
221	221	products;
222	222	(F) smoking is allowed only in an area designated
223	223	for the testing or development of tobacco products and only for the
224	224	purpose of testing or developing tobacco products; and
225	225	(G) smoking is not allowed in any common work
226	226	area of the facility, including a private or shared office, meeting
227	227	area, cafeteria, break room, hallway, restroom, or elevator.
228	228	(b) The exemption provided under Subsection (a)(9) does not
229	229	apply to a tobacco product manufacturing facility that is
230	230	established for the purpose of avoiding compliance with this
231	231	chapter.
232	232	Sec. 172.055. DECLARATION OF ESTABLISHMENT AS NONSMOKING.
233	233	(a) An owner, operator, manager, or other person in control of an
234	234	establishment, facility, or outdoor area may declare that entire
235	235	establishment, facility, or outdoor area as a nonsmoking place.
236	236	(b) A person may not smoke in a place in which a sign
237	237	conforming to the requirements of Section 172.056 is posted.
238	238	Sec. 172.056. DUTIES OF OWNER, MANAGER, OR OPERATOR OF
239	239	PUBLIC PLACE OR EMPLOYER IN PLACE OF EMPLOYMENT. An owner, manager,
240	240	or operator of a public place or an employer in a place of
241	241	employment shall:
242	242	(1) post clearly and conspicuously in the public place
243	243	or place of employment, as applicable:
244	244	(A) a sign with the words "No Smoking"; or
245	245	(B) a sign with the international "No Smoking"
246	246	symbol, consisting of a pictorial representation of a burning
247	247	cigarette enclosed in a red circle with a red bar diagonally
248	248	crossing the cigarette;
249	249	(2) post at each entrance to the public place or place
250	250	of employment, as applicable, a conspicuous sign clearly stating
251	251	that smoking is prohibited; and
252	252	(3) remove all ashtrays from any area in which smoking
253	253	is prohibited.
254	254	SUBCHAPTER C. ENFORCEMENT AND PENALTIES
255	255	Sec. 172.101. ENFORCEMENT. (a) The department shall
256	256	enforce this chapter.
257	257	(b) An agency of this state or a political subdivision of
258	258	this state that issues a license, certificate, registration, or
259	259	other authority or permit to a business or to an owner, operator, or
260	260	other person in control of a business shall provide notice to each
261	261	applicant for the permit or authority of the provisions of this
262	262	chapter.
263	263	(c) A person may file with the department a complaint
264	264	concerning a violation of this chapter.
265	265	(d) The department or another agency of this state or a
266	266	political subdivision of this state designated by the department
267	267	may inspect an establishment for compliance with this chapter.
268	268	(e) An employer or an owner, manager, operator, or employee
269	269	of an establishment regulated under this chapter shall inform a
270	270	person violating this chapter of the appropriate provisions
271	271	pertaining to the violation.
272	272	Sec. 172.102. INJUNCTIVE RELIEF. In addition to the other
273	273	remedies provided by this chapter, the attorney general at the
274	274	request of the department, or a person aggrieved by a violation of
275	275	this chapter, may bring an action for injunctive relief to enforce
276	276	this chapter.
277	277	Sec. 172.103. OFFENSES; PENALTIES. (a) A person who
278	278	violates Section 172.051, 172.052, 172.053, or 172.055(b) commits
279	279	an offense. An offense under this subsection is a Class C
280	280	misdemeanor punishable by a fine not to exceed $50.
281	281	(b) An owner, manager, or operator of a public place or an
282	282	employer in a place of employment, as applicable, who violates
283	283	Section 172.056 commits an offense. An offense under this
284	284	subsection is a Class C misdemeanor punishable by a fine not to
285	285	exceed $100.
286	286	(c) If it is shown on the trial of an offense under
287	287	Subsection (b) that the defendant has previously been finally
288	288	convicted of an offense under that subsection that occurred within
289	289	one year before the date of the offense that is the subject of the
290	290	trial, on conviction the defendant shall be punished by a fine not
291	291	to exceed $200.
292	292	(d) If it is shown on the trial of an offense under
293	293	Subsection (b) that the defendant has previously been finally
294	294	convicted of two offenses under that subsection that occurred
295	295	within one year before the date of the offense that is the subject
296	296	of the trial, on conviction the defendant shall be punished by a
297	297	fine not to exceed $500.
298	298	Sec. 172.104. SEPARATE VIOLATIONS. Each day on which a
299	299	violation of this chapter occurs is considered a separate
300	300	violation.
301	301	SECTION 2. The following are repealed:
302	302	(1) Section 48.01, Penal Code; and
303	303	(2) Section 2, Chapter 290 (S.B. 59), Acts of the 64th
304	304	Legislature, Regular Session, 1975.
305	305	SECTION 3. The repeal by this Act of Section 48.01, Penal
306	306	Code, does not apply to an offense committed under that section
307	307	before the effective date of this Act. An offense committed before
308	308	that date is covered by the law in effect on the date the offense was
309	309	committed, and the former law is continued in effect for that
310	310	purpose.
311	311	SECTION 4. This Act takes effect September 1, 2015.