Senate Bill sb1308

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    Florida Senate - 2005                                  SB 1308

    By the Committee on Regulated Industries





    580-951B-05

  1                      A bill to be entitled

  2         An act relating to the Florida Clean Indoor Air

  3         Act; amending s. 386.203, F.S.; defining the

  4         term "person" for purposes of the act; amending

  5         s. 386.204, F.S.; eliminating certain

  6         exceptions to the prohibition against smoking

  7         in an enclosed indoor workplace; prohibiting a

  8         proprietor or person in charge of an enclosed

  9         indoor workplace from permitting smoking in

10         that workplace; requiring that a proprietor or

11         person in charge of an enclosed indoor

12         workplace request a person who is smoking to

13         stop smoking or leave the premises; providing

14         penalties; amending ss. 386.2045 and 386.205,

15         F.S.; conforming cross-references; amending s.

16         386.206, F.S.; deleting certain provisions made

17         obsolete by operation of law which require the

18         posting of signs in an enclosed indoor

19         workplace; amending s. 386.208, F.S.;

20         authorizing a law enforcement officer to issue

21         a citation to a person who violates the Florida

22         Clean Indoor Air Act; providing requirements

23         for the citation; providing that failure to

24         comply with a citation is deemed a waiver of

25         the right to contest the citation; authorizing

26         a law enforcement officer to remove a person

27         from the premises who is in violation of the

28         Florida Clean Indoor Air Act; providing that

29         penalties imposed under the act do not limit

30         other actions by a law enforcement officer or

31         state agency; amending s. 561.695, F.S.;

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    Florida Senate - 2005                                  SB 1308
    580-951B-05




 1         conforming cross-references; eliminating

 2         provisions requiring a stand-alone bar to

 3         certify to the Division of Alcoholic Beverages

 4         and Tobacco of the Department of Business and

 5         Professional Regulation compliance with certain

 6         provisions of the Florida Clean Indoor Air Act;

 7         providing additional penalties for a third or

 8         subsequent violation of requirements applicable

 9         to a stand-alone bar; providing an effective

10         date.

11  

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

13  

14         Section 1.  Subsection (5) of section 386.203, Florida

15  Statutes, is amended, present subsections (6) through (13) of

16  that section are redesignated as subsections (7) through (14),

17  respectively, and a new subsection (6) is added to that

18  section, to read:

19         386.203  Definitions.--As used in this part:

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

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

22  predominantly or totally bounded on all sides and above by

23  physical barriers, regardless of whether such barriers consist

24  of or include, without limitation, uncovered openings;

25  screened or otherwise partially covered openings; or open or

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

27  "predominantly" bounded by physical barriers during any time

28  when both of the following conditions exist:

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

30  a physical barrier that excludes rain;, and

31  

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    Florida Senate - 2005                                  SB 1308
    580-951B-05




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

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

 3  calculating the percentage of side surface area covered by

 4  closed physical barriers, all solid surfaces that block air

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

 6  barriers.  This section applies to all such enclosed indoor

 7  workplaces and enclosed parts thereof without regard to

 8  whether work is occurring at any given time.

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

10  leased by and used exclusively for noncommercial activities

11  performed by the members and guests of a membership

12  association, including social gatherings, meetings, dining,

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

14  defined in subsection (13) (12).

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

16         Section 2.  Section 386.204, Florida Statutes, is

17  amended to read:

18         386.204  Prohibition.--

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

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

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

22  enclosed indoor workplace may not permit smoking in that

23  enclosed indoor workplace. If the proprietor or other person

24  in charge of an enclosed indoor workplace observes smoking in

25  that workplace or has been notified of observed smoking in

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

27  other person in charge of the enclosed indoor workplace shall

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

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

30  enclosed indoor workplace shall require the violator to leave

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

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    Florida Senate - 2005                                  SB 1308
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 1  enclosed indoor workplace who fails to comply with this

 2  subsection is subject to the procedures and penalties

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

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

 5  386.2045, Florida Statutes, are amended to read:

 6         386.2045  Enclosed indoor workplaces; specific

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

 8  be permitted in each of the following places:

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

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

11  tobacco products, and accessories for such products, as

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

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

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

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

16  provisions of the Beverage Law and this part.

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

18  Statutes, is amended to read:

19         386.205  Customs smoking rooms.--A customs smoking room

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

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

22  Bureau of Customs and Border Protection of the United States

23  Department of Homeland Security. A customs smoking room may

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

25  authority and control of the Bureau of Customs and Border

26  Protection of the United States Department of Homeland

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

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

29  386.203. Each customs smoking room must conform to the

30  following requirements:

31  

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    Florida Senate - 2005                                  SB 1308
    580-951B-05




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

 2  386.203(7) s. 386.203(6), must not be performed in the room at

 3  any given time.

 4         Section 5.  Section 386.206, Florida Statutes, is

 5  amended to read:

 6         386.206  Posting of signs; requiring policies.--

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

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

 9  Constitution was required to post signs under the requirements

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

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

12  the enclosed indoor workplace. Each sign posted pursuant to

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

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

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

16  charge of the premises.

17         (1)(2)  The proprietor or other person in charge of an

18  enclosed indoor workplace must develop and implement a policy

19  regarding the smoking prohibitions established in this part.

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

21  be taken when the proprietor or other person in charge

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

23  enclosed indoor workplace and must include a policy which

24  prohibits an employee from smoking in the enclosed indoor

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

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

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

28         (2)(3)  The person in charge of an airport terminal

29  that includes a designated customs smoking room must

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

31  no smoking is permitted except in the designated customs

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    Florida Senate - 2005                                  SB 1308
    580-951B-05




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

 2  sign posted pursuant to this section must have letters of

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

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

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

 6  premises.

 7         (3)(4)  The proprietor or other person in charge of an

 8  enclosed indoor workplace where a smoking cessation program,

 9  medical research, or scientific research is conducted or

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

11  signs stating that smoking is permitted for such purposes in

12  designated areas in the enclosed indoor workplace. Each sign

13  posted pursuant to this section must have letters of

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

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

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

17  premises.

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

19  July 1, 2005.

20         Section 6.  Section 386.208, Florida Statutes, is

21  amended to read:

22         386.208  Penalties.--

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

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

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

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

27  shall be with the appropriate county court.

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

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

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

31  citation must contain:

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    Florida Senate - 2005                                  SB 1308
    580-951B-05




 1         (a)  The date and time of issuance.

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

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

 4  committed.

 5         (d)  The statute violated.

 6         (e)  The facts constituting the violation.

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

 8  officer.

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

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

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

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

13  violation and not more than $500 for each subsequent

14  violation.

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

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

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

18  to show cause.

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

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

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

22  workplace to stop smoking or otherwise comply with the

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

24  the violator from the premises.

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

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

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

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

29  Division of Hotels and Restaurants and the Division of

30  Alcoholic Beverages and Tobacco of the Department of Business

31  

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    Florida Senate - 2005                                  SB 1308
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 1  and Professional Regulation to enforce the provisions of this

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

 3         Section 7.  Subsection (1), paragraph (a) of subsection

 4  (5), and subsections (6), (7), and (8) of section 561.695,

 5  Florida Statutes, are amended to read:

 6         561.695  Stand-alone bar enforcement; qualification;

 7  penalties.--

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

 9  the licensed premises of a vendor that operates a business

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

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

12  election to permit tobacco smoking in the licensed premises.

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

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

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

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

17  preceding 12-month period, the following:

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

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

20  premises as defined in s. 386.203(12) s. 386.203(11).

21  

22  The division shall establish by rule the format of the

23  affidavit required by this subsection.

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

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

26  vendor must additionally provide to the division an agreed

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

28  department from a Florida certified public accountant that

29  attests to the licensee's compliance with the percentage

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

31  period. Such report shall be admissible in any proceeding

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    Florida Senate - 2005                                  SB 1308
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 1  pursuant to s. 120.57. This subsection does not apply to a

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

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

 4  consumption by patrons, is limited to nonperishable snack food

 5  items commercially prepackaged off the premises of the

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

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

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

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

10         (6)(7)  The Division of Alcoholic Beverages and Tobacco

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

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

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

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

15  this section.

16         (7)(8)  Any licensed vendor that operates a business

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

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

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

20  penalties:

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

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

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

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

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

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

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

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

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

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

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

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    Florida Senate - 2005                                  SB 1308
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 1  tobacco smoking is permitted, not to exceed 30 days, and shall

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

 3  $2,000; and

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

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

 6  $2,000, and any vendor that operates a business that meets the

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

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

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

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

11  $2,000 or revocation of the right to maintain a stand-alone

12  bar in which tobacco smoking is permitted.

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

14  

15            *****************************************

16                          SENATE SUMMARY

17    Revises various provisions of the Florida Clean Indoor
      Air Act. Requires that a proprietor or person in charge
18    of an enclosed indoor workplace request a person who is
      smoking to stop smoking or leave the premises. Provides
19    penalties. Authorizes a law enforcement officer to issue
      a citation to a person who violates the Florida Clean
20    Indoor Air Act. Provides that failure to comply with a
      citation is deemed a waiver of the right to contest the
21    citation. Authorizes a law enforcement officer to remove
      a person who is in violation of the Florida Clean Indoor
22    Air Act from the premises. Deletes a requirement that
      stand-alone bars periodically certify compliance with the
23    Florida Clean Indoor Air Act to the Division of Alcoholic
      Beverages and Tobacco of the Department of Business and
24    Professional Regulation. (See bill for details.)

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