SENATE AMENDMENT
Bill No. HB 1757
Amendment No. ___ Barcode 105596
CHAMBER ACTION
Senate House
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11 Senators Diaz de la Portilla and Smith moved the following
12 amendment:
13
14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
16
17 and insert:
18 Section 1. Section 386.201, Florida Statutes, is
19 reenacted to read:
20 386.201 Short title.--This part may be cited as the
21 "Florida Clean Indoor Air Act."
22 Section 2. Section 386.202, Florida Statutes, is
23 amended to read:
24 386.202 Legislative intent.--The purpose of this part
25 is to protect people from the public health hazards of
26 second-hand, comfort, and environment by creating areas in
27 public places and at public meetings that are reasonably free
28 from tobacco smoke and to implement the Florida health
29 initiative in s. 20, Art. X of the State Constitution by
30 providing a uniform statewide maximum code. This part shall
31 not be interpreted to require the designation of smoking
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1 areas. However, it is the intent of the Legislature to
2 discourage the designation of any area within a government
3 building as a smoking area. It is the intent of the
4 Legislature to not inhibit, or otherwise obstruct, smoking
5 cessation programs, medical research, or scientific research
6 in this state. The Legislature finds that tobacco smoking that
7 is integral to a smoking cessation program, medical research,
8 or scientific research does not present a credible public
9 health hazard from second-hand smoke.
10 Section 3. Section 386.203, Florida Statutes, is
11 amended to read:
12 386.203 Definitions.--As used in this part, the term:
13 (1) "Commercial use of a private residence" means any
14 time during which the owner, lessee, or other person occupying
15 or controlling the use of a private residence is furnishing in
16 the private residence, or causing or allowing to be furnished
17 in the private residence, child care, adult care, or health
18 care, or any combination thereof, and receiving or expecting
19 to receive compensation therefor.
20 (2) "Common area" means a hallway, corridor, lobby,
21 aisle, water fountain area, restroom, stairwell, entryway, or
22 conference room in a public place.
23 (3) "Department" means the Department of Health.
24 (4) "Designated smoking guest rooms at public lodging
25 establishments" means the sleeping rooms and directly
26 associated private areas, such as bathrooms, living rooms, and
27 kitchen areas, if any, rented to guests for their exclusive
28 transient occupancy in public lodging establishments including
29 hotels, motels, resort condominiums, transient apartments,
30 transient lodging establishments, rooming houses, boarding
31 houses, resort dwellings, bed and breakfast inns, and the
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1 like; and designated by the person or persons having
2 management authority over such public lodging establishment as
3 rooms in which smoking may be permitted.
4 (5) "Enclosed indoor workplace" means a workplace that
5 is predominantly or totally bounded on all sides and above by
6 physical barriers.
7 (a) Except as provided in paragraph (b), the term does
8 not include a workplace that does not have physical barriers
9 of any kind from above, a workplace that is totally bounded
10 from above but of which at least 25 percent of contiguous
11 surface area of the sides is without a physical barrier of any
12 kind separating the workplace from the exterior of the
13 building within which the workplace is located, or a workplace
14 that is bounded on all sides and above by physical barriers
15 consisting of no more than 50 percent of the total bounded
16 surface area of the workplace.
17 (b) The term does not apply to a workplace in a
18 restaurant that is bounded on all sides and above by physical
19 barriers consisting of no more than 25 percent of the total
20 bounded surface area of the workplace, provided that if such a
21 workplace is totally or predominantly bounded from above it
22 must use a ventilation system to significantly reduce the
23 accumulation of second-hand tobacco smoke.
24 (6) "Essential services" means those services that are
25 essential to the maintenance of any enclosed indoor room,
26 regardless of whether the room is a workplace, including, but
27 not limited to, janitorial services, repairs, or renovations.
28 (7) "Government building" means a building or portion
29 of a building owned by or leased to the state or a political
30 subdivision of the state and used for governmental purposes.
31 (8) "Physical barrier" includes an uncovered opening,
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1 a screened or otherwise partially covered opening, or an open
2 or closed window, jalousie, or door.
3 (9)(1) "Public place" means the following enclosed,
4 indoor areas used by the general public:
5 (a) Government buildings;
6 (b) Public means of mass transportation and their
7 associated terminals not subject to federal smoking
8 regulation;
9 (c) Elevators;
10 (d) Hospitals;
11 (e) Nursing homes;
12 (f) Educational facilities;
13 (g) Public school buses;
14 (h) Libraries;
15 (i) Courtrooms;
16 (j) Jury waiting and deliberation rooms;
17 (k) Museums;
18 (l) Theaters;
19 (m) Auditoriums;
20 (n) Arenas;
21 (o) Recreational facilities;
22 (p) Restaurants;
23 (q) Retail stores, except a retail store the primary
24 business of which is the sale of tobacco or tobacco related
25 products;
26 (r) Grocery stores;
27 (s) Buildings that contain an enclosed indoor
28 workplace Places of employment;
29 (t) Health care facilities;
30 (u) Day care centers; and
31 (v) Common areas of retirement homes and condominiums.
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1 (2) "Government building" means any building or any
2 portion of any building owned by or leased to the state or any
3 political subdivision thereof and used for governmental
4 purposes.
5 (10)(3) "Public meeting" means all meetings open to
6 the public, including meetings of homeowner, condominium, or
7 renter or tenant associations unless such meetings are held in
8 a private residence.
9 (11) "Second-hand smoke" means smoke emitted from
10 lighted, smoldering, or burning tobacco when the smoker is not
11 inhaling; smoke emitted at the mouthpiece during puff drawing;
12 and smoke exhaled by the smoker.
13 (12)(4) "Smoking" means inhaling, exhaling, burning,
14 carrying, or possessing a lighted tobacco product, including
15 cigarettes, cigars, pipe tobacco possession of a lighted
16 cigarette, lighted cigar, lighted pipe, or any other lighted
17 tobacco product.
18 (5)> "Smoking area" means any designated area meeting
19 the requirements of ss. 386.205 and 386.206.
20 (13) "Work" means performing an employment or
21 employment-type service for, or at the request of, another
22 person or a public or private entity, regardless of whether
23 the employment or employment-type service is performed for
24 compensation or on a full-time or part-time basis, whether
25 legally or not. The term includes employment or
26 employment-type service performed by an employee, independent
27 contractor, agent, partner, proprietor, manager, officer,
28 director, apprentice, trainee, associate, servant, volunteer,
29 or similar person. The term does not include noncommercial
30 activities performed by members of a membership organization.
31 (14) "Workplace" means a room where one or more
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1 persons perform work. This section applies to all such
2 workplaces without regard to whether work is occurring at any
3 given time. The term does not include any facility owned or
4 leased by and used exclusively for noncommercial activities
5 performed by the members and guests of a membership
6 organization, including social gatherings, meetings, dining,
7 and dances, if no person or persons are engaged in work as
8 defined in subsection (13). Each facility in which tobacco
9 smoking is permitted during the activities of a membership
10 organization must comply with the signage requirements in s.
11 386.206.
12 (15) "Membership organization" means a charitable,
13 nonprofit, or veterans' organization that holds a current
14 exemption under s. 501(c)(3), s. 501(c)(4), s. 501(c)(7), s.
15 501(c)(8), s. 501(c)(10), s. 501(c)(19), or s. 501(d) of the
16 Internal Revenue Code.
17 (6) "Common area" means any hallway, corridor, lobby,
18 aisle, water fountain area, restroom, stairwell, entryway, or
19 conference room in any public place.
20 (7) "Department" means the Department of Health.
21 (8) "Division" means the Division of Hotels and
22 Restaurants of the Department of Business and Professional
23 Regulation.
24 Section 4. Section 386.204, Florida Statutes, is
25 amended to read:
26 386.204 Prohibition.--
27 (1) ENCLOSED INDOOR WORKPLACES.--A person may not
28 smoke in an enclosed indoor workplace, except as otherwise
29 provided in s. 386.2045.
30 (2) PUBLIC PLACES.--A person may not smoke in a public
31 place or at a public meeting except as provided in this part
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1 in designated smoking areas. These prohibitions do not apply
2 in cases in which an entire room or hall is used for a private
3 function and seating arrangements are under the control of the
4 sponsor of the function and not of the proprietor or person in
5 charge of the room or hall.
6 (3) OTHER PROHIBITED AREAS.--A person may not smoke
7 within 10 feet of the entryway to a building that contains an
8 enclosed indoor workplace or within 10 feet of intake
9 equipment for a heating, ventilating, or air conditioning
10 system (HVAC system) for a building that contains an enclosed
11 indoor workplace. An outdoor entryway to a public
12 transportation facility, including, but not limited to,
13 railroad stations, bus stations, ship ports, ferry terminals,
14 roadside welcome stations, highway service plazas, airports
15 served by regular passenger service, and highway rest stations
16 is exempt from the prohibition in this subsection.
17 Section 5. Section 386.2045, Florida Statutes, is
18 created to read:
19 386.2045 Enclosed indoor workplaces; specific
20 exceptions.--Notwithstanding s. 386.204(1), tobacco smoking
21 may be permitted in each of the following places:
22 (1) PRIVATE RESIDENCE.--A private residence whenever
23 it is not being used commercially to provide child care, adult
24 care, or health care, or any combination thereof.
25 (2) RETAIL TOBACCO SHOP.--Any enclosed indoor
26 workplace dedicated to or predominantly for the retail sale of
27 tobacco, tobacco products, and accessories for such products,
28 in which the sale of other products or services is merely
29 incidental. Any enclosed indoor workplace of a business that
30 manufactures, imports, or distributes tobacco products or of a
31 tobacco leaf dealer is a business dedicated to or
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1 predominantly for the retail sale of tobacco and tobacco
2 products when, as a necessary and integral part of the process
3 of making, manufacturing, importing, or distributing a tobacco
4 product for the eventual retail sale of such tobacco or
5 tobacco product, tobacco is heated, burned, or smoked or a
6 lighted tobacco product is tested.
7 (3) DESIGNATED SMOKING GUEST ROOM.--A designated
8 smoking guest room at a public lodging establishment.
9 (4) STAND-ALONE BAR.--Any place of business that
10 during all times of operation is devoted predominantly or
11 totally to serving alcoholic beverages, intoxicating
12 beverages, or intoxicating liquors, or any combination
13 thereof, for consumption on the licensed premises; in which
14 the serving of food, if any, is merely incidental to the
15 consumption of any such beverage; and the licensed premises is
16 not located within, and does not share any common entryway or
17 common indoor area with, any other enclosed indoor workplace,
18 including any business for which the sale of food or any other
19 product or service is more than an incidental source of gross
20 revenue. A business must not derive more than 12 percent of
21 its gross revenue from the sale of food.
22 (5) SMOKING-CESSATION PROGRAM, MEDICAL RESEARCH, OR
23 SCIENTIFIC RESEARCH.--Any enclosed indoor workplace or public
24 place, to the extent that tobacco smoking is an integral part
25 of a smoking-cessation program, medical research, or
26 scientific research. Each room in which tobacco smoking is
27 permitted must comply with the signage requirements in s.
28 386.206.
29 (6) ENTERTAINMENT INDUSTRY.--Any enclosed indoor
30 workplace or public place, to the extent that tobacco smoking
31 is an part of a theatrical, commercial advertising, music
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1 video, television, or motion picture performance. Each room
2 in which tobacco smoking is permitted as part of a performance
3 must comply with the signage requirements in s. 386.206.
4 Section 6. Section 386.205, Florida Statutes, is
5 amended to read:
6 386.205 Designation of smoking rooms areas.--
7 (1) A smoking room areas may be designated by the
8 person in charge of an airport in-transit lounge under the
9 authority and control of the Bureau of Customs and Border
10 Protection of the United States Department of Homeland
11 Security a public place. A smoking room may be designated in
12 an airport in-transit lounge under the authority and control
13 of the Bureau of Customs and Border Protection of the United
14 States Department of Homeland Security. A smoking room may not
15 be designated in an elevator, restroom, or any common area as
16 defined in s. 386.203. Each designated smoking room must
17 conform to the following requirements:
18 (a) Work, other than essential services defined in s.
19 386.203, must not be performed in the room at any given time.
20 (b) Tobacco smoking must not be permitted in the room
21 while any essential services are being performed in the room.
22 (c) Each smoking room must be enclosed by physical
23 barriers that are impenetrable by second-hand tobacco smoke
24 and prevent the escape of second-hand tobacco smoke into a
25 common area or an enclosed indoor workplace.
26 (d) Each designated smoking room must exhaust tobacco
27 smoke directly to the outside and away from air intake ducts,
28 and be maintained under negative pressure, with respect to
29 surrounding spaces, sufficient to contain tobacco smoke within
30 the designated room.
31 (e) Each smoking room must comply with the signage
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1 requirements in s. 386.206. If a smoking area is designated,
2 existing physical barriers and ventilation systems shall be
3 used to minimize smoke in adjacent nonsmoking areas. This
4 provision shall not be construed to require fixed structural
5 or other physical modifications in providing these areas or to
6 require operation of any existing heating, ventilating, and
7 air-conditioning system (HVAC system) in any manner which
8 decreases its energy efficiency or increases its electrical
9 demand, or both, nor shall this provision be construed to
10 require installation of new or additional HVAC systems.
11 (2)(a) A smoking area may not be designated in an
12 elevator, school bus, public means of mass transportation
13 subject only to state smoking regulation, restroom, hospital,
14 doctor's or dentist's waiting room, jury, deliberation room,
15 county health department, day care center, school or other
16 educational facility, or any common area as defined in s.
17 386.203. However, a patient's room in a hospital, nursing
18 home, or other health care facility may be designated as a
19 smoking area if such designation is ordered by the attending
20 physician and agreed to by all patients assigned to that room.
21 (b) Notwithstanding anything in this part to the
22 contrary, no more than one-half of the rooms in any health
23 care facility may be designated as smoking areas.
24 (3) In a workplace where there are smokers and
25 nonsmokers, employers shall develop, implement, and post a
26 policy regarding designation of smoking and nonsmoking areas.
27 Such a policy shall take into consideration the proportion of
28 smokers and nonsmokers. Employers who make reasonable efforts
29 to develop, implement, and post such a policy shall be deemed
30 in compliance. An entire area may be designated as a smoking
31 area if all workers routinely assigned to work in that area at
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1 the same time agree. With respect to the square footage in any
2 public place as described in subsection (4), this square
3 footage shall not include private office work space which is
4 not a common area as defined in s. 386.203(6) and which is
5 ordinarily inaccessible to the public.
6 (4)(a) No more than one-half of the total square
7 footage in any public place within a single enclosed indoor
8 area used for a common purpose shall be reserved and
9 designated as a smoking area.
10 (b) The square footage limitation set forth in
11 paragraph (a) shall not apply to any restaurant subject to
12 this part. With respect to such restaurants:
13 1. No more than 50 percent of the seats existing in a
14 restaurant's dining room at any time shall be located in an
15 area designated as a smoking area.
16 2. Effective October 1, 2001, no more than 35 percent
17 of the seats existing in a restaurant's dining room at any
18 time shall be located in an area designated as a smoking area.
19 (3)(5) A smoking room area may not contain common
20 areas that which are expected to be used by the public.
21 (4)(6) Each state agency may adopt rules for
22 administering this section which take into consideration the
23 provisions of this part.
24 Section 7. Section 386.206, Florida Statutes, is
25 amended to read:
26 386.206 Posting of signs.--The person in charge of a
27 public place shall conspicuously post, or cause to be posted,
28 in any public place area designated as a smoking area signs
29 stating that smoking is not permitted in the public place such
30 area. Each sign posted under pursuant to this section must
31 shall have letters of reasonable size which can be easily
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1 read. The color, design, and precise place of posting of
2 these such signs shall be left to the discretion of the person
3 in charge of the premises. In order to increase public
4 awareness, the person in charge of a public place may, at his
5 or her discretion, also post "NO SMOKING EXCEPT IN DESIGNATED
6 >AREAS" signs as appropriate.
7 Section 8. Section 386.207, Florida Statutes, is
8 amended to read:
9 386.207 Administration; enforcement; civil penalties;
10 exceptions exemptions.--
11 (1) The department and the Department of Business and
12 Professional Regulation or the division shall enforce this
13 part ss. 386.205 and 386.206 and to implement such enforcement
14 shall adopt, in consultation with the Department of
15 Agriculture and Consumer Services and the State Fire Marshal,
16 rules specifying procedures to be followed by enforcement
17 personnel in investigating complaints and notifying alleged
18 violators, rules defining types of cases for which exceptions
19 exemptions may be granted, and rules specifying procedures by
20 which appeals may be taken by aggrieved parties.
21 (2) Public agencies responsible for the management and
22 maintenance of government buildings shall report observed
23 violations to the department and the Department of Business
24 and Professional Regulation or division. The State Fire
25 Marshal shall report to the department and the Department of
26 Business and Professional Regulation or division observed
27 violations of this part ss. 386.205 and 386.206 found during
28 its periodic inspections conducted under pursuant to its
29 regulatory authority. The department and the Department of
30 Business and Professional Regulation or the division, upon
31 notification of observed violations of this part ss. 386.205
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1 and 386.206, shall issue to the proprietor or other person in
2 charge of such public place or enclosed indoor workplace a
3 notice to comply with this part ss. 386.205 and 386.206. If
4 the such person fails to comply within 30 days after receipt
5 of the such notice, the department and the Department of
6 Business and Professional Regulation or the division shall
7 assess a civil penalty against the person of not less than
8 $500 and him or her not to exceed $1,000 $100 for the first
9 violation and not less than $1000 and not to exceed $2,500
10 $500 for each subsequent violation. The imposition of the such
11 fine must shall be in accordance with the provisions of
12 chapter 120. If a person refuses to comply with this part ss.
13 386.205 and 386.206, after having been assessed such penalty,
14 the department and the Department of Business and Professional
15 Regulation or the division may file a complaint in the circuit
16 court of the county in which the such public place or enclosed
17 indoor workplace is located to require compliance.
18 (3) A person may request an exemption from ss. 386.205
19 and 386.206 by applying to the department or the division.
20 The department or the division may grant exemptions on a
21 case-by-case basis where it determines that substantial good
22 faith efforts have been made to comply or that emergency or
23 extraordinary circumstances exist.
24 (3)(4) All fine moneys collected pursuant to this
25 section shall be used by the department for children's medical
26 services programs pursuant to the provisions of part I of
27 chapter 391.
28 Section 9. Section 386.208, Florida Statutes, is
29 amended to read:
30 386.208 Penalties.--Any person who violates s. 386.204
31 commits a noncriminal violation as defined provided for in s.
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1 775.08(3), punishable by a fine of not less than $500 and not
2 more than $1,000 $100 for the first violation and not less
3 than $1000 and not more than $2,500 $500 for each subsequent
4 violation. Jurisdiction shall be with the appropriate county
5 court.
6 Section 10. Section 386.209, Florida Statutes, is
7 reenacted to read:
8 386.209 Regulation of smoking preempted to
9 state.--This part expressly preempts regulation of smoking to
10 the state and supersedes any municipal or county ordinance on
11 the subject.
12 Section 11. Section 386.211, Florida Statutes, is
13 amended to read:
14 386.211 Public announcements in mass transportation
15 terminals.--Announcements about the Florida Clean Indoor Air
16 Act shall be made regularly over public address systems in
17 terminals of public transportation carriers located in
18 metropolitan statistical areas with populations over 230,000
19 according to the latest census. These announcements shall be
20 made at least every 30 minutes and shall be made in
21 appropriate languages. Each announcement must shall include a
22 statement to the effect that Florida is a clean indoor air
23 state and that smoking is not allowed except as provided in
24 this part only in designated areas.
25 Section 12. Section 386.212, Florida Statutes, is
26 amended to read:
27 386.212 Smoking prohibited near school property;
28 penalty.--
29 (1) It is unlawful for any person under 18 years of
30 age to smoke tobacco in, on, or within 1,000 feet of the real
31 property comprising a public or private elementary, middle, or
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1 secondary school between the hours of 6 a.m. and midnight.
2 This section does shall not apply to any person occupying a
3 moving vehicle or within a private residence.
4 (2) A law enforcement officer may issue a citation in
5 such form as prescribed by a county or municipality to any
6 person violating the provisions of this section. Any such
7 citation must contain:
8 (a) The date and time of issuance.
9 (b) The name and address of the person cited.
10 (c) The date and time the civil infraction was
11 committed.
12 (d) The statute violated.
13 (e) The facts constituting the violation.
14 (f) The name and authority of the law enforcement
15 officer.
16 (g) The procedure for the person to follow to pay the
17 civil penalty, to contest the citation, or to appear in court.
18 (h) The applicable civil penalty if the person elects
19 not to contest the citation.
20 (i) The applicable civil penalty if the person elects
21 to contest the citation.
22 (3) Any person issued a citation pursuant to this
23 section shall be deemed to be charged with a civil infraction
24 punishable by a maximum civil penalty not to exceed $25, or 50
25 hours of community service or, where available, successful
26 completion of a school-approved anti-tobacco "alternative to
27 suspension" program.
28 (4) Any person who fails to comply with the directions
29 on the citation shall be deemed to waive his or her right to
30 contest the citation and an order to show cause may be issued
31 by the court.
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1 Section 13. Section 386.2125, Florida Statutes, is
2 created to read:
3 386.2125 Rulemaking.--The department shall, in
4 consultation with the State Fire Marshal, the Department of
5 Agriculture and Consumer Services, and the Department of
6 Business and Professional Regulation, have the authority to
7 adopt rules pursuant to ss. 120.536(1) and 120.54 to implement
8 the provisions of this part.
9 Section 14. If any provision of this act or its
10 application to any person or circumstance is held invalid, the
11 invalidity does not affect other provisions or applications of
12 the act that can be given effect without the invalid provision
13 or application, and to this end the provisions of this act are
14 declared severable.
15 Section 15. This act shall take effect July 1, 2003.
16
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18 ================ T I T L E A M E N D M E N T ===============
19 And the title is amended as follows:
20 Delete everything before the enacting clause
21
22 and insert:
23 A bill to be entitled
24 An act relating to the Florida Clean Indoor Air
25 Act; implementing s. 20, Art. X of the State
26 Constitution; reenacting s. 386.201, F.S.,
27 relating to a short title; amending s. 386.202,
28 F.S.; providing legislative intent and
29 findings; amending s. 386.203, F.S.; providing
30 definitions; amending s. 386.204, F.S.;
31 prohibiting smoking in certain places;
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1 requiring the posting of signs; creating s.
2 386.2045, F.S.; establishing specific
3 exceptions where smoking is permitted; amending
4 s. 386.205, F.S.; providing for designated
5 smoking rooms; providing certain exceptions;
6 requiring state agencies to adopt rules;
7 amending s. 386.206, F.S.; providing
8 requirements for the posting of signs in rooms
9 designated as smoking rooms; amending s.
10 386.207, F.S.; providing for enforcement of the
11 act by the Department of Business and
12 Professional Regulation and the Department of
13 Health; providing penalties; providing for the
14 use of moneys collected as fines under the act;
15 amending s. 386.208, F.S.; providing additional
16 penalties; reenacting s. 386.209, F.S.,
17 relating to preemption by the state of the
18 regulation of smoking; amending s. 386.211,
19 F.S.; providing for announcements at certain
20 facilities; amending s. 386.212, F.S.;
21 prohibiting smoking near school property;
22 creating s. 386.2125, F.S.; requiring the
23 Department of Health to adopt rules; providing
24 for severability; providing an effective date.
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