Senate Bill sb1308c2

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                    CS for CS for SB 1308

    By the Committees on Criminal Justice; and Regulated
    Industries




    591-2180-05

  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         terms "person" and "proprietor or other person

  5         in charge of an enclosed indoor workplace" for

  6         purposes of the act; amending s. 386.204, F.S.;

  7         eliminating certain exceptions to the

  8         prohibition against smoking in an enclosed

  9         indoor workplace; prohibiting a proprietor or

10         person in charge of an enclosed indoor

11         workplace from permitting smoking in that

12         workplace; requiring that a proprietor or

13         person in charge of an enclosed indoor

14         workplace request a person who is smoking to

15         stop smoking or leave the premises; providing

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

17         conforming cross-references; creating a new

18         exemption; amending s. 386.205, F.S.;

19         conforming cross-references; amending s.

20         386.206, F.S.; deleting certain provisions made

21         obsolete by operation of law which require the

22         posting of signs in an enclosed indoor

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

24         authorizing a law enforcement officer to issue

25         a citation to a person who violates the Florida

26         Clean Indoor Air Act; providing requirements

27         for the citation; providing that failure to

28         comply with a citation is deemed a waiver of

29         the right to contest the citation; authorizing

30         a law enforcement officer to remove a person

31         from the premises who is in violation of the

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




 1         Florida Clean Indoor Air Act; providing that

 2         penalties imposed under the act do not limit

 3         other actions by a law enforcement officer or

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

 5         conforming cross-references; providing a

 6         penalty for a vendor who knowingly makes a

 7         false statement on an annual compliance

 8         affidavit; eliminating provisions requiring a

 9         stand-alone bar to certify to the Division of

10         Alcoholic Beverages and Tobacco of the

11         Department of Business and Professional

12         Regulation compliance with certain provisions

13         of the Florida Clean Indoor Air Act; providing

14         additional penalties for a third or subsequent

15         violation of requirements applicable to a

16         stand-alone bar; providing an effective date.

17  

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

19  

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

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

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

23  respectively, and new subsections (6) and (15) are added to

24  that section, to read:

25         386.203  Definitions.--As used in this part:

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

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

28  predominantly or totally bounded on all sides and above by

29  physical barriers, regardless of whether such barriers consist

30  of or include, without limitation, uncovered openings;

31  screened or otherwise partially covered openings; or open or

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




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

 2  "predominantly" bounded by physical barriers during any time

 3  when both of the following conditions exist:

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

 5  a physical barrier that excludes rain;, and

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

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

 8  calculating the percentage of side surface area covered by

 9  closed physical barriers, all solid surfaces that block air

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

11  barriers.  This section applies to all such enclosed indoor

12  workplaces and enclosed parts thereof without regard to

13  whether work is occurring at any given time.

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

15  leased by and used exclusively for noncommercial activities

16  performed by the members and guests of a membership

17  association, including social gatherings, meetings, dining,

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

19  defined in subsection (13) (12).

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

21         (15)  "Proprietor or other person in charge of an

22  enclosed indoor workplace" means:

23         (a)  When the enclosed indoor workplace is rented to a

24  tenant, the tenant or the tenant's employees or agents,

25  without limiting the ultimate responsibility of the tenant to

26  implement the policy regarding smoking prohibition, or

27         (b)  When the enclosed indoor workplace is not rented

28  to a tenant, the owner of the enclosed indoor workplace or

29  that owner's employees or agents, without limiting the

30  ultimate responsibility of the owner of the enclosed indoor

31  workplace to implement the policy regarding smoking

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




 1  prohibition in all enclosed indoor workplaces where (a) does

 2  not apply.

 3         Section 2.  Section 386.204, Florida Statutes, is

 4  amended to read:

 5         386.204  Prohibition.--

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

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

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

 9  enclosed indoor workplace may not permit smoking in that

10  enclosed indoor workplace. If the proprietor or other person

11  in charge of an enclosed indoor workplace observes smoking in

12  that workplace or has been notified of observed smoking in

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

14  other person in charge of the enclosed indoor workplace shall

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

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

17  enclosed indoor workplace shall require the violator to leave

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

19  enclosed indoor workplace who fails to comply with this

20  subsection is subject to the procedures and penalties

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

22         Section 3.  Section 386.2045, Florida Statutes, is

23  amended to read:

24         386.2045  Enclosed indoor workplaces; specific

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

26  be permitted in each of the following places:

27         (1)  PRIVATE RESIDENCE.--A private residence whenever

28  it is not being used commercially to provide child care, adult

29  care, or health care, or any combination thereof as defined in

30  s. 386.203(1).

31  

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




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

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

 3  tobacco products, and accessories for such products, as

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

 5         (3)  DESIGNATED SMOKING GUEST ROOM.--A designated

 6  smoking guest room at a public lodging establishment as

 7  defined in s. 386.203(4).

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

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

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

11  provisions of the Beverage Law and this part.

12         (5)  SMOKING CESSATION PROGRAM, MEDICAL OR SCIENTIFIC

13  RESEARCH.--An enclosed indoor workplace, to the extent that

14  tobacco smoking is an integral part of a smoking cessation

15  program approved by the department, or medical or scientific

16  research conducted therein. Each room in which tobacco smoking

17  is permitted must comply with the signage requirements in s.

18  386.206.

19         (6)  CUSTOMS SMOKING ROOM.--A customs smoking room in

20  an airport in-transit lounge under the authority and control

21  of the Bureau of Customs and Border Protection of the United

22  States Department of Homeland Security subject to the

23  restrictions contained in s. 386.205.

24         (7)  EXPRESSIVE ACTIVITY.--Any enclosed indoor

25  workplace or public place to the extent that tobacco smoking

26  is done upon a stage and done by the performers during the

27  course of, and is a part of, a theatrical production.

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

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




 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

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




 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:

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




 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

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




 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) s. 386.203(11).

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

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

31  food to a person on the licensed premises without requiring

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




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

 2  reasonably approximates the retail value of the food.

 3         (c)  The licensed vendor conspicuously posts signs at

 4  each entrance to the establishment stating that smoking is

 5  permitted in the establishment.

 6  

 7  The division shall establish by rule the format of the

 8  affidavit required by this subsection. A vendor shall not

 9  knowingly make a false statement on the affidavit required by

10  this subsection. In addition to the penalties provided in

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

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

13  suspension or revocation of his or her alcoholic beverage

14  license under s. 561.29.

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

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

17  vendor must additionally provide to the division an agreed

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

19  department from a Florida certified public accountant that

20  attests to the licensee's compliance with the percentage

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

22  period. Such report shall be admissible in any proceeding

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

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

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

26  consumption by patrons, is limited to nonperishable snack food

27  items commercially prepackaged off the premises of the

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

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

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

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

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




 1         (6)(7)  The Division of Alcoholic Beverages and Tobacco

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

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

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

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

 6  this section.

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

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

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

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

11  penalties:

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

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

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

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

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

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

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

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

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

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

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

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

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

25  $2,000; and

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

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

28  $2,000, and any vendor that operates a business that meets the

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

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

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

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                    CS for CS for SB 1308
    591-2180-05




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

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

 3  bar in which tobacco smoking is permitted.

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

 5  

 6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 7                            CS/SB 1308

 8                                 

 9  -    Defines "proprietor or other person in charge of an
         enclosed indoor workplace."
10  
    -    Adds smoking on stage during a theatrical production to
11       s. 386.2045, F.S., exceptions to the indoor smoking ban.

12  -    Clarifies that knowingly making a false statement on an
         affidavit filed with the Division of Alcoholic Beverages
13       and Tobacco may result in suspension or revocation of a
         license under s. 561.29, F.S.
14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  12

CODING: Words stricken are deletions; words underlined are additions.