Senate Bill sb1348e1

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  1                      A bill to be entitled

  2         An act relating to indoor smoking places;

  3         amending s. 386.203, F.S.; conforming a

  4         cross-reference; defining the term "person" for

  5         purposes of the act; redefining the term

  6         "stand-alone bar" to include a licensed

  7         premises that derives no more than a specified

  8         amount of gross revenue from the sale of food

  9         consumed on the licensed premises and that is

10         located in a building individually listed in

11         the National Register of Historic Places;

12         requiring that an application for historic

13         designation be submitted within a specified

14         period of time; amending s. 386.204, F.S.;

15         eliminating certain exceptions to the

16         prohibition against smoking in an enclosed

17         indoor workplace; prohibiting a proprietor or

18         person in charge of an enclosed indoor

19         workplace from permitting smoking in that

20         workplace; requiring that a proprietor or

21         person in charge of an enclosed indoor

22         workplace request a person who is smoking to

23         stop smoking or leave the premises; providing

24         penalties; amending s. 386.2045, F.S.;

25         conforming cross-references; amending s.

26         386.205, F.S.; conforming cross-references;

27         amending s. 386.206, F.S.; deleting certain

28         provisions made obsolete by operation of law

29         which require the posting of signs in an

30         enclosed indoor workplace; amending s. 386.208,

31         F.S.; authorizing a law enforcement officer to


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 1         issue a citation to a person who violates the

 2         Florida Clean Indoor Air Act; providing

 3         requirements for the citation; providing that

 4         failure to comply with a citation is deemed a

 5         waiver of the right to contest the citation;

 6         authorizing a law enforcement officer to remove

 7         a person from the premises who is in violation

 8         of the Florida Clean Indoor Air Act; providing

 9         that penalties imposed under the act do not

10         limit other actions by a law enforcement

11         officer or state agency; amending s. 561.695,

12         F.S.; conforming cross-references; providing a

13         penalty for a licensee who knowingly makes a

14         false statement on an annual compliance

15         affidavit; eliminating provisions requiring a

16         stand-alone bar to certify to the Division of

17         Alcoholic Beverages and Tobacco of the

18         Department of Business and Professional

19         Regulation compliance with certain provisions

20         of the Florida Clean Indoor Air Act; providing

21         additional penalties for a third or subsequent

22         violation of requirements applicable to a

23         stand-alone bar; providing an effective date.

24  

25  Be It Enacted by the Legislature of the State of Florida:

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27         Section 1.  Subsection (5) and present subsection (11)

28  of section 386.203, Florida Statutes, are amended, present

29  subsections (6) through (13) of that section are redesignated

30  as subsections (7) through (14), respectively, and a new

31  subsection (6) is added to that section, to read:


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 1         386.203  Definitions.--As used in this part:

 2         (5)(a)  "Enclosed indoor workplace" means any place

 3  where one or more persons engages in work, and which place is

 4  predominantly or totally bounded on all sides and above by

 5  physical barriers, regardless of whether such barriers consist

 6  of or include, without limitation, uncovered openings;

 7  screened or otherwise partially covered openings; or open or

 8  closed windows, jalousies, doors, or the like.  A place is

 9  "predominantly" bounded by physical barriers during any time

10  when both of the following conditions exist:

11         1.(a)  It is more than 50 percent covered from above by

12  a physical barrier that excludes rain;, and

13         2.(b)  More than 50 percent of the combined surface

14  area of its sides is covered by closed physical barriers.  In

15  calculating the percentage of side surface area covered by

16  closed physical barriers, all solid surfaces that block air

17  flow, except railings, must be considered as closed physical

18  barriers.  This section applies to all such enclosed indoor

19  workplaces and enclosed parts thereof without regard to

20  whether work is occurring at any given time.

21         (b)(c)  The term does not include any facility owned or

22  leased by and used exclusively for noncommercial activities

23  performed by the members and guests of a membership

24  association, including social gatherings, meetings, dining,

25  and dances, if no person or persons are engaged in work as

26  defined in subsection (13) (12).

27         (6)  "Person" has the same meaning as in s. 1.01(3).

28         (12)(11)  "Stand-alone bar" means any licensed premises

29  devoted during any time of operation predominantly or totally

30  to serving alcoholic beverages, intoxicating beverages, or

31  intoxicating liquors, or any combination thereof, for


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 1  consumption on the licensed premises; in which the serving of

 2  food, if any, is merely incidental to the consumption of any

 3  such beverage; the licensed premises does not offer a

 4  children's menu or include in the menu items or food portion

 5  sizes that are identified as being specifically for children,

 6  and the licensed premises is not located within, and does not

 7  share any common entryway or common indoor area with, any

 8  other enclosed indoor workplace, including any business for

 9  which the sale of food or any other product or service is more

10  than an incidental source of gross revenue. A place of

11  business constitutes a stand-alone bar in which the service of

12  food is merely incidental in accordance with this subsection

13  if the licensed premises derives no more than 10 percent of

14  its gross revenue from the sale of food consumed on the

15  licensed premises. However, a place of business remains a

16  stand-alone bar in which the service of food is merely

17  incidental if the licensed premises derives no more than 20

18  percent of its gross revenue from the sale of food consumed on

19  the licensed premises, the premises is licensed as a vendor as

20  of July 1, 2005, and the licensed premises is located in a

21  building that is individually listed in the National Register

22  of Historic Places as defined in s. 267.021. An application to

23  individually list the building in the National Register of

24  Historic Places must have been submitted to the Department of

25  State on or before 90 days after the effective date of this

26  act.

27         Section 2.  Section 386.204, Florida Statutes, is

28  amended to read:

29         386.204  Prohibition.--

30         (1)  A person may not smoke in an enclosed indoor

31  workplace, except as otherwise provided in s. 386.2045.


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 1         (2)  A proprietor or other person in charge of an

 2  enclosed indoor workplace may not permit smoking in that

 3  enclosed indoor workplace. If the proprietor or other person

 4  in charge of an enclosed indoor workplace observes smoking in

 5  that workplace or has been notified of observed smoking in

 6  that workplace in violation of this part, the proprietor or

 7  other person in charge of the enclosed indoor workplace shall

 8  request the violator to stop smoking and, if the violator does

 9  not comply, the proprietor or other person in charge of the

10  enclosed indoor workplace shall require the violator to leave

11  the premises. A proprietor or other person in charge of an

12  enclosed indoor workplace who fails to comply with this

13  subsection is subject to the procedures and penalties

14  prescribed in ss. 386.207 and 561.695, as applicable.

15         Section 3.  Subsections (2) and (4) of section

16  386.2045, Florida Statutes, are amended to read:

17         386.2045  Enclosed indoor workplaces; specific

18  exceptions.--Notwithstanding s. 386.204, tobacco smoking may

19  be permitted in each of the following places:

20         (2)  RETAIL TOBACCO SHOP.--An enclosed indoor workplace

21  dedicated to or predominantly for the retail sale of tobacco,

22  tobacco products, and accessories for such products, as

23  defined in s. 386.203(9) s. 386.203(8).

24         (4)  STAND-ALONE BAR.--A business that meets the

25  definition of a stand-alone bar as defined in s. 386.203(12)

26  s. 386.203(11) and that otherwise complies with all applicable

27  provisions of the Beverage Law and this part.

28         Section 4.  Subsection (1) of section 386.205, Florida

29  Statutes, is amended to read:

30         386.205  Customs smoking rooms.--A customs smoking room

31  may be designated by the person in charge of an airport


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 1  in-transit lounge under the authority and control of the

 2  Bureau of Customs and Border Protection of the United States

 3  Department of Homeland Security. A customs smoking room may

 4  only be designated in an airport in-transit lounge under the

 5  authority and control of the Bureau of Customs and Border

 6  Protection of the United States Department of Homeland

 7  Security. A customs smoking room may not be designated in an

 8  elevator, restroom, or any common area as defined by s.

 9  386.203. Each customs smoking room must conform to the

10  following requirements:

11         (1)  Work, other than essential services defined in s.

12  386.203(7) s. 386.203(6), must not be performed in the room at

13  any given time.

14         Section 5.  Section 386.206, Florida Statutes, is

15  amended to read:

16         386.206  Posting of signs; requiring policies.--

17         (1)  The person in charge of an enclosed indoor

18  workplace that prior to adoption of s. 20, Art. X of the State

19  Constitution was required to post signs under the requirements

20  of this section must continue to conspicuously post, or cause

21  to be posted, signs stating that smoking is not permitted in

22  the enclosed indoor workplace. Each sign posted pursuant to

23  this section must have letters of reasonable size which can be

24  easily read. The color, design, and precise place of posting

25  of such signs shall be left to the discretion of the person in

26  charge of the premises.

27         (1)(2)  The proprietor or other person in charge of an

28  enclosed indoor workplace must develop and implement a policy

29  regarding the smoking prohibitions established in this part.

30  The policy may include, but is not limited to, procedures to

31  be taken when the proprietor or other person in charge


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 1  witnesses or is made aware of a violation of s. 386.204 in the

 2  enclosed indoor workplace and must include a policy which

 3  prohibits an employee from smoking in the enclosed indoor

 4  workplace. In order to increase public awareness, the person

 5  in charge of an enclosed indoor workplace may, at his or her

 6  discretion, post "NO SMOKING" signs as deemed appropriate.

 7         (2)(3)  The person in charge of an airport terminal

 8  that includes a designated customs smoking room must

 9  conspicuously post, or cause to be posted, signs stating that

10  no smoking is permitted except in the designated customs

11  smoking room located in the customs area of the airport. Each

12  sign posted pursuant to this section must have letters of

13  reasonable size that can be easily read. The color, design,

14  and precise locations at which such signs are posted shall be

15  left to the discretion of the person in charge of the

16  premises.

17         (3)(4)  The proprietor or other person in charge of an

18  enclosed indoor workplace where a smoking cessation program,

19  medical research, or scientific research is conducted or

20  performed must conspicuously post, or cause to be posted,

21  signs stating that smoking is permitted for such purposes in

22  designated areas in the enclosed indoor workplace. Each sign

23  posted pursuant to this section must have letters of

24  reasonable size which can be easily read. The color, design,

25  and precise locations at which such signs are posted shall be

26  left to the discretion of the person in charge of the

27  premises.

28         (5)  The provisions of subsection (1) shall expire on

29  July 1, 2005.

30         Section 6.  Section 386.208, Florida Statutes, is

31  amended to read:


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 1         386.208  Penalties.--

 2         (1)  Any person who violates s. 386.204 commits a

 3  noncriminal violation as defined in s. 775.08(3), punishable

 4  by a fine of not more than $100 for the first violation and

 5  not more than $500 for each subsequent violation. Jurisdiction

 6  shall be with the appropriate county court.

 7         (2)  A law enforcement officer may issue a citation in

 8  such form as prescribed by a county or municipality to any

 9  person who violates the provisions of this part. Any such

10  citation must contain:

11         (a)  The date and time of issuance.

12         (b)  The name and address of the person cited.

13         (c)  The date and time the civil infraction was

14  committed.

15         (d)  The statute violated.

16         (e)  The facts constituting the violation.

17         (f)  The name and authority of the law enforcement

18  officer.

19         (g)  The procedure for the person to follow in order to

20  pay the fine, contest the citation, or appear in court.

21         (h)  The applicable range of the fine for the

22  violation, which may not be more than $100 for a first

23  violation and not more than $500 for each subsequent

24  violation.

25         (3)  Any person who fails to comply with the directions

26  of the citation shall be deemed to have waived his or her

27  right to contest the citation and the court may issue an order

28  to show cause.

29         (4)  If a person who violates s. 386.204, or any

30  provision of this part, refuses to comply with the request of

31  the proprietor or other person in charge of an enclosed indoor


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 1  workplace to stop smoking or otherwise comply with the

 2  provisions of this part, a law enforcement officer may remove

 3  the violator from the premises.

 4         (5)  This section does not limit any other action or

 5  remedy that is available to a proprietor or other person in

 6  charge of an enclosed indoor workplace and does not limit the

 7  authority of a law enforcement officer, the department, or the

 8  Division of Hotels and Restaurants and the Division of

 9  Alcoholic Beverages and Tobacco of the Department of Business

10  and Professional Regulation to enforce the provisions of this

11  part or any other rule, law, or ordinance.

12         Section 7.  Subsections (1), (5), (6), (7), and (8) of

13  section 561.695, Florida Statutes, are amended to read:

14         561.695  Stand-alone bar enforcement; qualification;

15  penalties.--

16         (1)  The division shall designate as a stand-alone bar

17  the licensed premises of a vendor that operates a business

18  that meets the definition of a stand-alone bar in s.

19  386.203(12) s. 386.203(11) upon receipt of the vendor's

20  election to permit tobacco smoking in the licensed premises.

21         (5)  After the initial designation, to continue to

22  qualify as a stand-alone bar the licensee must provide to the

23  division annually, on or before the licensee's annual renewal

24  date, an affidavit that certifies, with respect to the

25  preceding 12-month period, the following:

26         (a)  No more than 10 percent of the gross revenue of

27  the business is from the sale of food consumed on the licensed

28  premises as defined in s. 386.203(12) or, if such licensed

29  premises is in a building that is individually listed in the

30  National Register of Historic Places as defined in s. 267.021,

31  no more than 20 percent of the gross revenue of the business


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 1  is from the sale of food consumed on the licensed premises s.

 2  386.203(11). However, an application to individually list the

 3  building in the National Register of Historic Places must have

 4  been submitted to the Department of State on or before October

 5  1, 2005.

 6         (b)  Other than customary bar snacks as defined by rule

 7  of the division, the licensed vendor does not provide or serve

 8  food to a person on the licensed premises without requiring

 9  the person to pay a separately stated charge for food that

10  reasonably approximates the retail value of the food.

11         (c)  The licensed vendor conspicuously posts signs at

12  each entrance to the establishment stating that smoking is

13  permitted in the establishment.

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15  The division shall establish by rule the format of the

16  affidavit required by this subsection. A vendor shall not

17  knowingly make a false statement on the affidavit required by

18  this subsection. In addition to the penalties provided in

19  subsection (7), a person who knowingly makes a false statement

20  on the affidavit required by this subsection may be subject to

21  suspension or revocation of his or her alcoholic beverage

22  license under s. 561.29.

23         (6)  Every third year after the initial designation, on

24  or before the licensee's annual license renewal, the licensed

25  vendor must additionally provide to the division an agreed

26  upon procedures report in a format established by rule of the

27  department from a Florida certified public accountant that

28  attests to the licensee's compliance with the percentage

29  requirement of s. 386.203(11) for the preceding 36-month

30  period. Such report shall be admissible in any proceeding

31  pursuant to s. 120.57. This subsection does not apply to a


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 1  stand-alone bar if the only food provided by the business, or

 2  in any other way present or brought onto the premises for

 3  consumption by patrons, is limited to nonperishable snack food

 4  items commercially prepackaged off the premises of the

 5  stand-alone bar and served without additions or preparation;

 6  except that a stand-alone bar may pop popcorn for consumption

 7  on its premises, provided that the equipment used to pop the

 8  popcorn is not used to prepare any other food for patrons.

 9         (6)(7)  The Division of Alcoholic Beverages and Tobacco

10  shall have the power to enforce the provisions of part II of

11  chapter 386 and to audit a licensed vendor that operates a

12  business that meets the definition of a stand-alone bar as

13  provided in s. 386.203(12) s. 386.203(11) for compliance with

14  this section.

15         (7)(8)  Any licensed vendor that operates a business

16  that meets the definition of a stand-alone bar as provided in

17  s. 386.203(11) who violates the provisions of this section or

18  part II of chapter 386 shall be subject to the following

19  penalties:

20         (a)  For the first violation, the vendor shall be

21  subject to a warning or a fine of up to $500, or both;

22         (b)  For the second violation within 2 years after the

23  first violation, the vendor shall be subject to a fine of not

24  less than $500 or more than $2,000;

25         (c)  For the third or subsequent violation within 2

26  years after the first violation, the vendor shall be subject

27  to a fine of not less than $500 or more than $2,000, and any

28  vendor that operates a business that meets the definition of a

29  stand-alone bar as provided in s. 386.203(12) shall receive a

30  suspension of the right to maintain a stand-alone bar in which

31  tobacco smoking is permitted, not to exceed 30 days, and shall


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 1  be subject to a fine of not less than $500 or more than

 2  $2,000; and

 3         (d)  For the fourth or subsequent violation, the vendor

 4  shall be subject to a fine of not less than $500 or more than

 5  $2,000, and any vendor that operates a business that meets the

 6  definition of a stand-alone bar as provided in s. 386.203(12)

 7  shall receive a 60-day suspension of the right to maintain a

 8  stand-alone bar in which tobacco smoking is permitted and

 9  shall be subject to a fine of not less than $500 or more than

10  $2,000 or revocation of the right to maintain a stand-alone

11  bar in which tobacco smoking is permitted.

12         Section 8.  This act shall take effect July 1, 2005.

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