Senate Bill sb0158c1

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    Florida Senate - 2002                            CS for SB 158

    By the Committee on Commerce and Economic Opportunities; and
    Senator Wasserman Schultz




    310-1749-02

  1                      A bill to be entitled

  2         An act relating to infant cribs; creating s.

  3         501.144, F.S., the Florida Infant Crib Safety

  4         Act; providing definitions; prohibiting

  5         commercial users from manufacturing,

  6         remanufacturing, retrofitting, selling,

  7         contracting to sell or resell, leasing, or

  8         subletting specified cribs determined to be

  9         unsafe for use by infants; prohibiting

10         transient public lodging establishments from

11         offering or providing for use specified cribs

12         determined to be unsafe for use by infants;

13         providing criteria for determining safety of

14         infant cribs; providing exemptions; providing

15         specified immunity from civil liability;

16         providing penalties; providing that violation

17         of the act constitutes an unfair and deceptive

18         trade practice; authorizing the Department of

19         Agriculture and Consumer Services, the

20         Department of Business and Professional

21         Regulation, and the Department of Children and

22         Family Services to collaborate with public

23         agencies and private-sector entities to prepare

24         specified public education materials and

25         programs; authorizing the Department of

26         Agriculture and Consumer Services to adopt

27         rules and prescribe forms; amending s. 509.221,

28         F.S.; prohibiting the use of certain cribs in

29         public lodging establishments; reenacting s.

30         509.032, F.S.; providing for regulation and

31         rulemaking by the Division of Hotels and

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    Florida Senate - 2002                            CS for SB 158
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  1         Restaurants of the Department of Business and

  2         Professional Regulation; creating s. 402.3031,

  3         F.S.; prohibiting unsafe cribs in certain

  4         facilities; providing for enforcement and

  5         rulemaking powers of the Department of Children

  6         and Family Services; providing an effective

  7         date.

  8

  9         WHEREAS, the disability and death of infants resulting

10  from injuries sustained in crib accidents are a serious threat

11  to the public health, safety, and welfare of the people of the

12  state, and

13         WHEREAS, the design and construction of an infant crib

14  must ensure that it is safe, and a parent or caregiver has a

15  right to believe that an infant crib in use is a safe

16  containment in which to place an infant, and

17         WHEREAS, more than 13,000 infants are injured in unsafe

18  cribs every year, and

19         WHEREAS, prohibiting the manufacture, remanufacture,

20  retrofitting, sale, contracting to sell or resell, leasing, or

21  subletting of unsafe infant cribs, particularly unsafe

22  secondhand, hand-me-down, or heirloom cribs, will reduce

23  injuries and deaths caused by cribs, and

24         WHEREAS, it is the intent of the Legislature to reduce

25  the occurrence of injuries and deaths to infants as a result

26  of unsafe cribs that do not conform to modern safety standards

27  by making it illegal to manufacture, remanufacture, retrofit,

28  sell, contract to sell or resell, lease, or sublet, any

29  full-size or non-full-size crib that is unsafe, and

30         WHEREAS, it is the intent of the Legislature to

31  encourage public and private collaboration in disseminating

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    Florida Senate - 2002                            CS for SB 158
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  1  materials relative to the safety of infant cribs to parents,

  2  child care providers, and those individuals who would be

  3  likely to sell, donate, or otherwise provide to others unsafe

  4  infant cribs, NOW, THEREFORE,

  5

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

  7

  8         Section 1.  Section 501.144, Florida Statutes, is

  9  created to read:

10         501.144  Florida Infant Crib Safety Act.--

11         (1)  SHORT TITLE.--This section may be cited as the

12  "Florida Infant Crib Safety Act."

13         (2)  DEFINITIONS.--As used in this section, the term:

14         (a)  "Commercial user" means a dealer under s.

15  212.06(2), or any person who is in the business of

16  manufacturing, remanufacturing, retrofitting, selling,

17  leasing, or subletting full-size or non-full-size cribs. The

18  term includes a child care facility, family day care home,

19  large family child care home, and specialized child care

20  facility for the care of mildly ill children, licensed by the

21  Department of Children and Family Services or local licensing

22  agencies.

23         (b)  "Crib" means a bed or containment designed to

24  accommodate an infant.

25         (c)  "Department" means the Department of Agriculture

26  and Consumer Services.

27         (d)  "Full-size crib" means a full-size baby crib as

28  defined in 16 C.F.R. part 1508, relating to requirements for

29  full-size baby cribs.

30         (e)  "Infant" means a person less than 35 inches tall

31  and less than 3 years of age.

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    Florida Senate - 2002                            CS for SB 158
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  1         (f)  "Non-full-size crib" means a non-full-size baby

  2  crib as defined in 16 C.F.R. part 1509, relating to

  3  requirements for non-full-size baby cribs.

  4         (g)  "Transient public lodging establishment" means any

  5  hotel, motel, resort condominium, transient apartment,

  6  roominghouse, bed and breakfast inn, or resort dwelling, as

  7  defined in s. 509.242.

  8         (3)  PROHIBITED PRACTICES.--

  9         (a)  A commercial user may not manufacture,

10  remanufacture, retrofit, sell, contract to sell or resell,

11  lease, or sublet a full-size or non-full-size crib that is

12  unsafe for an infant because the crib does not conform to the

13  standards set forth in paragraph (4)(a) or because the crib

14  has any of the dangerous features or characteristics set forth

15  in paragraph (4)(b).

16         (b)  A transient public lodging establishment may not

17  offer or provide for use a full-size or non-full-size crib

18  that is unsafe for an infant because the crib does not conform

19  to the standards set forth in paragraph (4)(a) or because the

20  crib has any of the dangerous features or characteristics set

21  forth in paragraph (4)(b). Further, violation of this section

22  by a transient public lodging establishment is a violation of

23  chapter 509 and is subject to the penalties set forth in s.

24  509.261.

25         (c)  A violation of this section is a deceptive and

26  unfair trade practice and constitutes a violation of part II

27  of chapter 501, the Florida Deceptive and Unfair Trade

28  Practices Act.

29         (4)  PRESUMPTION AS UNSAFE; CRITERIA.--

30         (a)  A crib is presumed to be unsafe under this section

31  if it does not conform to all of the following:

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    Florida Senate - 2002                            CS for SB 158
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  1         1.  16 C.F.R. part 1303, relating to ban of

  2  lead-containing paint and certain consumer products bearing

  3  lead-containing paint; 16 C.F.R. part 1508, relating to

  4  requirements for full-size baby cribs; and 16 C.F.R. part

  5  1509, relating to requirements for non-full-size baby cribs.

  6         2.  American Society for Testing and Materials

  7  Voluntary Standards F966-96, F1169-99, and F1822-97.

  8         3.  Rules adopted by the department which implement the

  9  provisions of this subsection.

10         (b)  A crib is unsafe if it has any of the following

11  dangerous features or characteristics:

12         1.  Corner posts that extend more than 1/16 of an inch.

13         2.  Spaces between side slats which are more than 2 3/8

14  inches wide.

15         3.  A mattress support that can be easily dislodged

16  from any point of the crib. A mattress segment can be easily

17  dislodged if it cannot withstand at least a 25-pound upward

18  force from underneath the crib. For portable folding cribs,

19  this subparagraph does not apply to mattress supports or

20  mattress segments that are designed to allow the crib to be

21  folded, if the crib is equipped with latches that work to

22  prevent the unintentional collapse of the crib.

23         4.  Cutout designs on the end panels.

24         5.  Rail-height dimensions that do not conform to the

25  following:

26         a.  The height of the rail and end panel as measured

27  from the top of the rail or panel in its lowest position to

28  the top of the mattress support in its highest position is at

29  least 9 inches.

30         b.  The height of the rail and end panel as measured

31  from the top of the rail or panel in its highest position to

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    Florida Senate - 2002                            CS for SB 158
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  1  the top of the mattress support in its lowest position is at

  2  least 26 inches.

  3         6.  Upon completion of assembly, any screw, bolt, or

  4  hardware that is loose and not secured.

  5         7.  Any sharp edge, point, or rough surface or any wood

  6  surface that is not smooth and free from splinters, splits, or

  7  cracks.

  8         8.  A tear in mesh or fabric sides of a non-full-size

  9  crib.

10         9.  With respect to portable folding cribs having

11  central hinges and rail assemblies that move downward when

12  folded, latches that do not automatically engage when placed

13  in the position recommended by the manufacturer for use.

14         10.  Crib sheets used on mattresses which are not sized

15  to match the mattress size.

16         (5)  EXEMPTIONS; CIVIL IMMUNITY.--

17         (a)  A crib that is clearly not intended for use by an

18  infant, including, but not limited to, a toy or display item,

19  is exempt from this section if the crib is accompanied, at the

20  time of manufacturing, remanufacturing, retrofitting, selling,

21  leasing, or subletting, by a notice to be furnished by the

22  commercial user on forms prescribed by the department

23  declaring that the crib is not intended to be used for an

24  infant and is dangerous to use for an infant.

25         (b)  A commercial user, other than a child care

26  facility, family day care home, large family child care home,

27  or specialized child care facility for the care of mildly ill

28  children, that has complied with the notice requirements set

29  forth under paragraph (a) is immune from civil liability

30  resulting from the use of a crib, notwithstanding the

31  provisions of this section.

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    Florida Senate - 2002                            CS for SB 158
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  1         (c)  When a commercial user leases a crib for use away

  2  from the premises of the commercial user, the commercial user

  3  is immune from civil liability created by this section

  4  resulting from the assembly of the crib by a person other than

  5  the commercial user or its agent or resulting from the use of

  6  crib sheets that were not provided by the commercial user or

  7  its agent.

  8         (6)  PENALTY.--

  9         (a)  A commercial user, other than a commercial user

10  subject to the penalties provided in paragraph (b) or

11  paragraph (c), that willfully and knowingly violates

12  subsection (3) commits a misdemeanor of the first degree,

13  punishable by a fine of not more than $10,000 and imprisonment

14  for a term of not more than 1 year.

15         (b)  A transient public lodging establishment that

16  violates subsection (3) is subject to the penalties set forth

17  in s. 509.261.

18         (c)  A child care facility, family day care home, large

19  family child care home, or specialized child care facility for

20  the care of mildly ill children which violates subsection (3)

21  is subject to the penalties set forth in ss. 402.301-402.319.

22         (7)  PUBLIC EDUCATION MATERIALS AND PROGRAMS.--The

23  Department of Agriculture and Consumer Services, the

24  Department of Business and Professional Regulation, and the

25  Department of Children and Family Services may collaborate

26  with any public agency or private-sector entity to prepare

27  public education materials or programs designed to inform

28  parents, child care providers, commercial users, and any other

29  person or entity that is likely to place unsafe cribs in the

30  stream of commerce of the dangers posed by secondhand,

31  hand-me-down, or heirloom cribs that do not conform to the

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    Florida Senate - 2002                            CS for SB 158
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  1  standards set forth in this section or that have any of the

  2  dangerous features or characteristics set forth in this

  3  section.

  4         (8)  RULEMAKING AUTHORITY.--The department may adopt

  5  rules under ss. 120.536(1) and 120.54 for the administration

  6  of this section.

  7         Section 2.  Subsection (10) is added to section

  8  509.221, Florida Statutes, to read:

  9         509.221  Sanitary regulations.--

10         (10)  A transient public lodging establishment may not

11  offer or provide for use a full-size or non-full-size crib

12  that is unsafe for an infant because it is not in conformity

13  with the requirements of s. 501.144.

14         Section 3.  Section 509.032, Florida Statutes, is

15  reenacted to read:

16         509.032  Duties.--

17         (1)  GENERAL.--The division shall carry out all of the

18  provisions of this chapter and all other applicable laws and

19  rules relating to the inspection or regulation of public

20  lodging establishments and public food service establishments

21  for the purpose of safeguarding the public health, safety, and

22  welfare. The division shall be responsible for ascertaining

23  that an operator licensed under this chapter does not engage

24  in any misleading advertising or unethical practices.

25         (2)  INSPECTION OF PREMISES.--

26         (a)  The division has responsibility and jurisdiction

27  for all inspections required by this chapter.  The division

28  has responsibility for quality assurance.  Each licensed

29  establishment shall be inspected at least biannually and at

30  such other times as the division determines is necessary to

31  ensure the public's health, safety, and welfare.  The division

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  1  shall establish a system to determine inspection frequency.

  2  Public lodging units classified as resort condominiums or

  3  resort dwellings are not subject to this requirement, but

  4  shall be made available to the division upon request.  If,

  5  during the inspection of a public lodging establishment

  6  classified for renting to transient or nontransient tenants,

  7  an inspector identifies vulnerable adults who appear to be

  8  victims of neglect, as defined in s. 415.102, or, in the case

  9  of a building that is not equipped with automatic sprinkler

10  systems, tenants or clients who may be unable to self-preserve

11  in an emergency, the division shall convene meetings with the

12  following agencies as appropriate to the individual situation:

13  the Department of Health, the Department of Elderly Affairs,

14  the area agency on aging, the local fire marshal, the landlord

15  and affected tenants and clients, and other relevant

16  organizations, to develop a plan which improves the prospects

17  for safety of affected residents and, if necessary, identifies

18  alternative living arrangements such as facilities licensed

19  under part II or part III of chapter 400.

20         (b)  For purposes of performing required inspections

21  and the enforcement of this chapter, the division has the

22  right of entry and access to public lodging establishments and

23  public food service establishments at any reasonable time.

24         (c)  Public food service establishment inspections

25  shall be conducted to enforce provisions of this part and to

26  educate, inform, and promote cooperation between the division

27  and the establishment.

28         (d)  The division shall adopt and enforce sanitation

29  rules consistent with law to ensure the protection of the

30  public from food-borne illness in those establishments

31  licensed under this chapter.  These rules shall provide the

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  1  standards and requirements for obtaining, storing, preparing,

  2  processing, serving, or displaying food in public food service

  3  establishments, approving public food service establishment

  4  facility plans, conducting necessary public food service

  5  establishment inspections for compliance with sanitation

  6  regulations, cooperating and coordinating with the Department

  7  of Health in epidemiological investigations, and initiating

  8  enforcement actions, and for other such responsibilities

  9  deemed necessary by the division. The division may not

10  establish by rule any regulation governing the design,

11  construction, erection, alteration, modification, repair, or

12  demolition of any public lodging or public food service

13  establishment. It is the intent of the Legislature to preempt

14  that function to the Florida Building Commission and the State

15  Fire Marshal through adoption and maintenance of the Florida

16  Building Code and the Florida Fire Prevention Code. The

17  division shall provide technical assistance to the commission

18  and the State Fire Marshal in updating the construction

19  standards of the Florida Building Code and the Florida Fire

20  Prevention Code which govern public lodging and public food

21  service establishments. Further, the division shall enforce

22  the provisions of the Florida Building Code and the Florida

23  Fire Prevention Code which apply to public lodging and public

24  food service establishments in conducting any inspections

25  authorized by this part.

26         (e)1.  Relating to facility plan approvals, the

27  division may establish, by rule, fees for conducting plan

28  reviews and may grant variances from construction standards in

29  hardship cases, which variances may be less restrictive than

30  the provisions specified in this section or the rules adopted

31

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  1  under this section.  A variance may not be granted pursuant to

  2  this section until the division is satisfied that:

  3         a.  The variance shall not adversely affect the health

  4  of the public.

  5         b.  No reasonable alternative to the required

  6  construction exists.

  7         c.  The hardship was not caused intentionally by the

  8  action of the applicant.

  9         2.  The division's advisory council shall review

10  applications for variances and recommend agency action.  The

11  division shall make arrangements to expedite emergency

12  requests for variances, to ensure that such requests are acted

13  upon within 30 days of receipt.

14         3.  The division shall establish, by rule, a fee for

15  the cost of the variance process.  Such fee shall not exceed

16  $150 for routine variance requests and $300 for emergency

17  variance requests.

18         (f)  In conducting inspections of establishments

19  licensed under this chapter, the division shall determine if

20  each coin-operated amusement machine that is operated on the

21  premises of a licensed establishment is properly registered

22  with the Department of Revenue.  Each month the division shall

23  report to the Department of Revenue the sales tax registration

24  number of the operator of any licensed establishment that has

25  on location a coin-operated amusement machine and that does

26  not have an identifying certificate conspicuously displayed as

27  required by s. 212.05(1)(i).

28         (g)  In inspecting public food service establishments,

29  the department shall provide each inspected establishment with

30  the food-recovery brochure developed under s. 570.0725.

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  1         (3)  SANITARY STANDARDS; EMERGENCIES; TEMPORARY FOOD

  2  SERVICE EVENTS.--The division shall:

  3         (a)  Prescribe sanitary standards which shall be

  4  enforced in public food service establishments.

  5         (b)  Inspect public lodging establishments and public

  6  food service establishments whenever necessary to respond to

  7  an emergency or epidemiological condition.

  8         (c)  Administer a public notification process for

  9  temporary food service events and distribute educational

10  materials that address safe food storage, preparation, and

11  service procedures.

12         1.  Sponsors of temporary food service events shall

13  notify the division not less than 3 days prior to the

14  scheduled event of the type of food service proposed, the time

15  and location of the event, a complete list of food service

16  vendor owners and operators participating in each event, and

17  the current license numbers of all public food service

18  establishments participating in each event. Notification may

19  be completed orally, by telephone, in person, or in writing.

20  A public food service establishment or food service vendor may

21  not use this notification process to circumvent the license

22  requirements of this chapter.

23         2.  The division shall keep a record of all

24  notifications received for proposed temporary food service

25  events and shall provide appropriate educational materials to

26  the event sponsors, including the food-recovery brochure

27  developed under s. 570.0725.

28         3.a.  A public food service establishment or other food

29  vendor must obtain a license from the division for each

30  temporary food service event in which it participates.

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  1         b.  Public food service establishments holding current

  2  licenses from the division may operate under the regulations

  3  of such a license at temporary food service events of 3 days

  4  or less in duration.

  5         (4)  STOP-SALE ORDERS.--The division may stop the sale,

  6  and supervise the proper destruction, of any food or food

  7  product when the director or the director's designee

  8  determines that such food or food product represents a threat

  9  to the public safety or welfare.  If the operator of a public

10  food service establishment licensed under this chapter has

11  received official notification from a health authority that a

12  food or food product from that establishment has potentially

13  contributed to any instance or outbreak of food-borne illness,

14  the food or food product must be maintained in safe storage in

15  the establishment until the responsible health authority has

16  examined, sampled, seized, or requested destruction of the

17  food or food product.

18         (5)  REPORTS REQUIRED.--The division shall send the

19  Governor a written report, which shall state, but not be

20  limited to, the total number of inspections conducted by the

21  division to ensure the enforcement of sanitary standards, the

22  total number of inspections conducted in response to emergency

23  or epidemiological conditions, the number of violations of

24  each sanitary standard, and any recommendations for improved

25  inspection procedures.  The division shall also keep accurate

26  account of all expenses arising out of the performance of its

27  duties and all fees collected under this chapter. The report

28  shall be submitted by September 30 following the end of the

29  fiscal year.

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  1         (6)  RULEMAKING AUTHORITY.--The division shall adopt

  2  such rules as are necessary to carry out the provisions of

  3  this chapter.

  4         (7)  PREEMPTION AUTHORITY.--The regulation of public

  5  lodging establishments and public food service establishments,

  6  the inspection of public lodging establishments and public

  7  food service establishments for compliance with the sanitation

  8  standards adopted under this section, and the regulation of

  9  food safety protection standards for required training and

10  testing of food service establishment personnel are preempted

11  to the state. This subsection does not preempt the authority

12  of a local government or local enforcement district to conduct

13  inspections of public lodging and public food service

14  establishments for compliance with the Florida Building Code

15  and the Florida Fire Prevention Code, pursuant to ss. 553.80

16  and 633.022.

17         Section 4.  Section 402.3031, Florida Statutes, is

18  created to read:

19         402.3031  Infant crib safety.--A child care facility,

20  family day care home, large family child care home, or

21  specialized child care facility for the care of mildly ill

22  children may not offer or provide for use a full-size or

23  non-full-size crib that is not in conformity with the

24  requirements of s. 501.144.  The department shall enforce this

25  section and may adopt rules under ss. 120.536(1) and 120.54

26  necessary for the administration of this section.

27         Section 5.  This act shall take effect October 1, 2002.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 158

  3

  4  The committee substitute clarifies that a portable folding
    crib is not unsafe if its latches do not engage automatically
  5  unless the crib is of a type having central hinges and rail
    assemblies that move downward when folded. The committee
  6  substitute also provides qualified immunity from civil
    liability for commercial users that lease cribs for use away
  7  from the premises of the commercial user. This immunity
    applies to liability created by the act resulting from the
  8  assembly of a crib by a person other than the commercial user
    or its agents or resulting from the use of crib sheets that
  9  were not provided by the commercial user or its agents.

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