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  83R185 NAJ-F
 
  By: Crownover H.B. No. 400
 
 
 
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 172 to read as follows:
  CHAPTER 172.  SMOKING PROHIBITED IN PUBLIC PLACES AND PLACES OF
  EMPLOYMENT
  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)  "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, 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, excluding sales derived from vending machines or the use of
  hookahs;
                     (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 product manufacturing facility" means a
  building that is owned or leased by a for-profit business that
  manufactures tobacco products intended to be smoked and that is
  used for the testing or development of tobacco products. The term
  does not include a retail store, membership club, tobacco
  distributor, or tobacco storage facility.
               (19)  "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
  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. 172.003.  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. 172.004.  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. 172.005.  OTHER APPLICABLE LAWS. This chapter may not
  be construed to authorize smoking where it is restricted by other
  applicable law.
         Sec. 172.006.  LIBERAL CONSTRUCTION.  This chapter shall be
  liberally construed to further its purpose.
  [Sections 172.007-172.050 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.  SMOKING PROHIBITED IN PLACE OF EMPLOYMENT. A
  person may not smoke in a place of employment in this state.
         Sec. 172.053.  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 in this state; or
               (2)  bleachers or grandstands for use by spectators at
  a sporting or other public event held in this state.
         Sec. 172.054.  EXCEPTIONS. (a)  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 that was in operation on May 15,
  2013;
               (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 172.053;
               (8)  an outdoor porch or patio that is not accessible to
  the public, other than the areas described by Section 172.053; or
               (9)  except as provided by Subsection (b), a tobacco
  product manufacturing facility that complies with the following
  requirements:
                     (A)  smoke from the facility does not migrate into
  an enclosed area where smoking is prohibited under this chapter;
                     (B)  the facility is a freestanding structure that
  does not share a common wall with another establishment or business
  and that is occupied solely by the tobacco product manufacturer;
                     (C)  the facility does not employ any individual
  under the age of 18;
                     (D)  the facility does not allow a guest or member
  of the public to enter an area where a tobacco product is being
  smoked;
                     (E)  the facility does not allow a guest, member
  of the public, or employee to roll the individual's own tobacco
  products;
                     (F)  smoking is allowed only in an area designated
  for the testing or development of tobacco products and only for the
  purpose of testing or developing tobacco products; and
                     (G)  smoking is not allowed in any common work
  area of the facility, including a private or shared office, meeting
  area, cafeteria, break room, hallway, restroom, or elevator.
         (b)  The exemption provided under Subsection (a)(9) does not
  apply to a tobacco product manufacturing facility that is
  established for the purpose of avoiding compliance with this
  chapter.
         Sec. 172.055.  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 172.056 is posted.
         Sec. 172.056.  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 diagonally
  crossing 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 172.057-172.100 reserved for expansion]
  SUBCHAPTER C.  ENFORCEMENT AND PENALTIES
         Sec. 172.101.  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. 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, 172.052, 172.053, or 172.055(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 172.056 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. 172.104.  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, 2013.