Bill Number: TX80RHB 9 Filed: 02-21-2007
Author: Crownover
A BILL TO BE ENTITLED
1 AN ACT
2 relating to the elimination of smoking in all workplaces and public
3 places; providing penalties.
4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
5 SECTION 1. Subtitle H, Title 2, Health and Safety Code, is
6 amended by adding Chapter 169 to read as follows:
7 CHAPTER 169. SMOKING PROHIBITED IN PUBLIC PLACES
8 AND PLACES OF EMPLOYMENT
9 SUBCHAPTER A. GENERAL PROVISIONS
10 Sec. 169.001. DEFINITIONS. In this chapter:
11 (1) "Bar" means an enclosed indoor establishment that
12 is open to the public and is devoted primarily to the sale and
13 service of alcoholic beverages for on-premises consumption.
14 (2) "Business" means:
15 (A) a sole proprietorship, partnership, joint
16 venture, corporation, or other business entity, either for-profit
17 or not-for-profit, including a retail establishment, where goods or
18 services are sold;
19 (B) a professional corporation or other entity
20 where legal, medical, dental, engineering, architectural, or other
21 professional services are delivered; or
22 (C) a private club.
23 (3) "Department" means the Department of State Health
24 Services.
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1 (4) "Employee" means an individual who:
2 (A) is employed by an employer for direct or
3 indirect monetary wages or profit; or
4 (B) volunteers the individual's services for an
5 employer.
6 (5) "Employer" means a person who employs one or more
7 individuals or uses the volunteer services of one or more
8 individuals. The term includes:
9 (A) a nonprofit entity;
10 (B) the legislative, executive, and judicial
11 branches of state government; and
12 (C) any political subdivision of this state.
13 (6) "Enclosed area" means all space between a floor
14 and ceiling that is enclosed on all sides by solid walls or windows,
15 exclusive of doorways, which extend from the floor to the ceiling.
16 (7) "Health care facility" means an office or
17 institution in which care or treatment is provided for physical,
18 mental, or emotional diseases or other medical, physiological, or
19 psychological conditions.
20 (8) "Place of employment" means an area under the
21 control of an employer that is used by employees of the employer but
22 is not generally open to the public.
23 (9) "Private club" means an organization that:
24 (A) owns, leases, or occupies a building used
25 exclusively for club purposes at all times;
26 (B) is operated solely for a recreational,
27 fraternal, social, patriotic, political, benevolent, or athletic
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1 purpose, but not for pecuniary gain;
2 (C) sells alcoholic beverages only incidentally
3 to its operation;
4 (D) is managed by a board of directors or similar
5 body chosen by the members at an annual meeting;
6 (E) has established bylaws or a constitution to
7 govern the club's activities; and
8 (F) is exempt from federal income taxation under
9 Section 501(a), Internal Revenue Code of 1986, as a club described
10 by Section 501(c)(7) of that code.
11 (10) "Public place" means:
12 (A) an enclosed indoor area the public is invited
13 or permitted to enter, including all or part of the following:
14 (i) a restaurant;
15 (ii) a bar;
16 (iii) a retail or service establishment;
17 (iv) a facility of a business or nonprofit
18 entity;
19 (v) a shopping mall;
20 (vi) a convention facility;
21 (vii) a theater or other facility primarily
22 used for exhibiting a performance;
23 (viii) a sports arena;
24 (ix) a health care facility;
25 (x) a licensed child-care or adult day-care
26 facility;
27 (xi) a polling place;
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1 (xii) a room in which a public meeting under
2 the control of this state, an agency or branch of government of this
3 state, or a political subdivision of this state is in progress;
4 (xiii) a common area in a multiple-unit
5 residential facility;
6 (xiv) a public transportation facility,
7 including a bus or taxicab, and a ticket, boarding, or waiting area
8 of a public transportation depot;
9 (xv) a waiting room, hallway, room, or ward
10 in a health care facility; or
11 (xvi) a restroom, lobby, reception area,
12 service line, hallway, elevator, or other common-use area the
13 public is invited or permitted to enter; or
14 (B) a facility of the state or of a local
15 government, including a building or vehicle owned, leased, or
16 operated by the state or local government, regardless of whether
17 the public is invited or permitted to enter.
18 (11) "Restaurant" means an enclosed indoor
19 establishment that is open to the public and is devoted primarily to
20 the sale and service of food for immediate consumption. The term
21 includes a bar located at the establishment.
22 (12) "Retail or service establishment" means an
23 establishment that sells goods or services to the public.
24 (13) "Service line" means an indoor line in which one
25 or more persons wait for or receive service, whether or not the
26 service involves the exchange of money.
27 (14) "Shopping mall" means an enclosed public walkway
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1 or hall area that connects retail, service, or professional
2 establishments.
3 (15) "Smoke" means to inhale, exhale, burn, or carry a
4 lighted cigar, cigarette, pipe, or other smoking equipment in any
5 manner.
6 (16) "Sports arena" means a place in which a person
7 engages in physical exercise, participates in athletic
8 competition, or witnesses sports or other events.
9 Sec. 169.002. APPLICABILITY. (a) Except as provided by
10 Subsection (b), this chapter preempts and supersedes a local
11 ordinance, rule, or regulation adopted by any political subdivision
12 of this state relating to smoking.
13 (b) To the extent that a local ordinance, rule, or
14 regulation adopted by a political subdivision of this state
15 prohibits or restricts smoking to a greater degree than this
16 chapter, the ordinance, rule, or regulation is not preempted or
17 superseded by this chapter.
18 (c) This chapter does not preempt or supersede Section
19 38.006, Education Code.
20 Sec. 169.003. PUBLIC EDUCATION. The department shall
21 engage in a continuing program to explain and clarify the purpose
22 and requirements of this chapter and to guide employers, owners,
23 operators, and managers in complying with this chapter. The
24 program may include publication of a brochure for businesses and
25 individuals that explains the provisions of this chapter.
26 Sec. 169.004. GOVERNMENT AGENCY COOPERATION. The
27 department shall annually request other government agencies to
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1 establish local operating procedures to comply with this chapter.
2 This request may include urging all federal, state, county,
3 municipal, and independent school districts to update existing
4 smoking control regulations to be consistent with the current
5 health findings regarding secondhand smoke.
6 Sec. 169.005. OTHER APPLICABLE LAWS. This chapter may not
7 be construed to permit smoking where it is restricted by other
8 applicable law.
9 Sec. 169.006. LIBERAL CONSTRUCTION. This chapter shall be
10 liberally construed to further its purpose.
11 (Sections 169.007-169.050 reserved for expansion)
12 SUBCHAPTER B. PROHIBITED ACTS
13 Sec. 169.051. SMOKING PROHIBITED IN PUBLIC PLACES. A person
14 may not smoke in a public place in this state.
15 Sec. 169.052. SMOKING PROHIBITED IN PLACE OF EMPLOYMENT. A
16 person may not smoke in a place of employment.
17 Sec. 169.053. PROHIBITION OF SMOKING IN SEATING AREA AT AN
18 OUTDOOR EVENT. A person may not smoke in:
19 (1) the seating area of an outdoor arena, stadium, or
20 amphitheater; or
21 (2) bleachers or grandstands for use by spectators at
22 a sporting or other public event.
23 Sec. 169.054. REASONABLE DISTANCE. A person may not smoke
24 within a distance of 15 feet outside an entrance, operable window,
25 or ventilation system of an enclosed area in which smoking is
26 prohibited.
27 Sec. 169.055. EXCEPTIONS. This subchapter does not apply
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1 to:
2 (1) a private residence, except when used as a
3 child-care, adult day-care, or health care facility;
4 (2) a hotel or motel room rented to a guest and
5 designated as a smoking room, if:
6 (A) not more than 20 percent of rooms rented to
7 guests in a hotel or motel are designated as smoking rooms;
8 (B) all smoking rooms in the hotel or motel on the
9 same floor are contiguous;
10 (C) smoke from smoking rooms does not enter an
11 area in which smoking is prohibited; and
12 (D) nonsmoking rooms are not converted to smoking
13 rooms;
14 (3) a private or semiprivate room in a nursing home or
15 long-term care facility occupied by one or more persons, all of whom
16 are smokers and have requested in writing to be placed in a room
17 where smoking is permitted, provided that smoke from the room does
18 not enter an area where smoking is prohibited;
19 (4) a private club that does not employ any employees:
20 (A) unless the club is being used for a function
21 to which the general public is invited; and
22 (B) provided the private club is not established
23 for the sole purpose of avoiding compliance with this chapter; or
24 (5) the outdoor area of a place of employment other
25 than the areas described by Sections 169.053 and 169.054.
26 Sec. 169.056. DECLARATION OF ESTABLISHMENT AS NONSMOKING.
27 (a) An owner, operator, manager, or other person in control of an
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1 establishment, facility, or outdoor area may declare that entire
2 establishment, facility, or outdoor area as a nonsmoking place.
3 (b) A person may not smoke in a place in which a sign
4 conforming to the requirements of Section 169.057(a) is posted.
5 Sec. 169.057. DUTIES OF OWNER, MANAGER, OR OPERATOR OF
6 PUBLIC PLACE OR EMPLOYER IN PLACE OF EMPLOYMENT. (a) An owner,
7 manager, or operator of a public place or an employer in a place of
8 employment shall:
9 (1) post clearly and conspicuously in the public place
10 or place of employment, as applicable:
11 (A) a sign with the words "No Smoking"; or
12 (B) a sign with the international "No Smoking"
13 symbol, consisting of a pictorial representation of a burning
14 cigarette enclosed in a red circle with a red bar across the
15 cigarette;
16 (2) post at each entrance to the public place or place
17 of employment, as applicable, a conspicuous sign clearly stating
18 that smoking is prohibited; and
19 (3) remove all ashtrays from any area in which smoking
20 is prohibited.
21 (b) An employer shall provide written notice that smoking is
22 prohibited in the place of employment to each:
23 (1) prospective employee in any application the
24 employer supplies; and
25 (2) employee on the first day of employment.
26 (b-1) An employer shall provide written notice not later
27 than December 1, 2007, that smoking is prohibited to each employee
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1 who is employed by that employer on September 1, 2007, and who
2 continues to be employed by the employer on the date of the notice.
3 This subsection expires January 1, 2009.
4 Sec. 169.058. NONRETALIATION; NONWAIVER OF RIGHTS. (a) A
5 person or employer may not discharge, refuse to hire, or in any
6 manner retaliate against an employee, applicant for employment, or
7 customer because that employee, applicant, or customer exercises
8 any right afforded by this chapter or reports or attempts to
9 prosecute a violation of this chapter.
10 (b) An employee working in a setting in which an employer
11 allows smoking does not waive or surrender any legal right the
12 employee may have against the employer or any other party.
13 (Sections 169.059-169.100 reserved for expansion)
14 SUBCHAPTER C. ENFORCEMENT AND PENALTIES
15 Sec. 169.101. ENFORCEMENT. (a) The department shall
16 enforce this chapter.
17 (b) An agency of this state or a political subdivision of
18 this state that issues a license, certificate, registration, or
19 other authority or permit to a business or to an owner, operator, or
20 other person in control of a business shall provide notice to each
21 applicant for the permit or authority of the provisions of this
22 chapter.
23 (c) A person may file a complaint concerning a violation of
24 this chapter with the department.
25 (d) The department or another agency of this state or a
26 political subdivision of this state designated by the department
27 may inspect an establishment for compliance with this chapter.
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1 (e) An employer or an owner, manager, operator, or employee
2 of an establishment regulated under this chapter shall inform a
3 person violating this chapter of the appropriate provisions
4 pertaining to the violation.
5 Sec. 169.102. INJUNCTIVE RELIEF. In addition to the other
6 remedies provided by this chapter, the attorney general at the
7 request of the department, or a person aggrieved by a violation of
8 this chapter, may bring an action for injunctive relief to enforce
9 this chapter.
10 Sec. 169.103. OFFENSES; PENALTIES. (a) A person who
11 violates Section 169.051, 169.052, 169.053, 169.054, or 169.056(b)
12 commits an offense. An offense under this subsection is a Class C
13 misdemeanor punishable by a fine not to exceed $50.
14 (b) An owner, manager, or operator of a public place or an
15 employer in a place of employment, as applicable, who violates
16 Section 169.057 or 169.058(a) commits an offense. An offense under
17 this subsection is a Class C misdemeanor punishable by a fine not to
18 exceed $100.
19 (c) If it is shown on the trial of an offense under
20 Subsection (b) that the defendant has previously been finally
21 convicted of an offense under that subsection that occurred within
22 one year before the date of the offense that is the subject of the
23 trial, on conviction the defendant shall be punished by a fine not
24 to exceed $200.
25 (d) If it is shown on the trial of an offense under
26 Subsection (b) that the defendant has previously been finally
27 convicted of two offenses under that subsection that occurred
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1 within one year before the date of the offense that is the subject
2 of the trial, on conviction the defendant shall be punished by a
3 fine not to exceed $500.
4 Sec. 169.104. SUSPENSION OR REVOCATION OF LICENSE OR
5 PERMIT. An agency of this state or a political subdivision of this
6 state may, in accordance with the applicable procedures of the
7 agency, suspend or revoke a license, permit, or other authority for
8 the premises on which a violation of this chapter occurs.
9 Sec. 169.105. PUBLIC NUISANCE. A violation of this chapter
10 is a public nuisance and may be abated by the department by
11 restraining order, preliminary or permanent injunction, or other
12 means provided by law. The state may take action to recover the
13 costs of the nuisance abatement.
14 Sec. 169.106. SEPARATE VIOLATIONS. Each day on which a
15 violation of this chapter occurs is considered a separate and
16 distinct violation.
17 SECTION 2. The following are repealed:
18 (1) Section 48.01, Penal Code; and
19 (2) Section 2, Chapter 290, Acts of the 64th
20 Legislature, Regular Session, 1975.
21 SECTION 3. The repeal by this Act of Section 48.01, Penal
22 Code, does not apply to an offense committed under that section
23 before the effective date of this Act. An offense committed before
24 that date is covered by the law in effect on the date the offense was
25 committed, and the former law is continued in effect for that
26 purpose.
27 SECTION 4. This Act takes effect September 1, 2007.
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