Bill Text: TX SB28 | 2011 | 82nd Legislature 1st Special | Comm Sub
Bill Title: Relating to reducing state Medicaid and other health care costs by prohibiting smoking in certain public places; providing penalties.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Introduced - Dead) 2011-06-22 - Co-author authorized [SB28 Detail]
Download: Texas-2011-SB28-Comm_Sub.html
| 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.) | ||
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| 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. | ||
| * * * * * | ||
