| 1 | The Business Regulation Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to indoor smoking places; amending s. |
| 7 | 386.203, F.S.; defining the term "person" for purposes of |
| 8 | the Florida Clean Indoor Air Act; amending s. 386.204, |
| 9 | F.S.; prohibiting a proprietor or other person in charge |
| 10 | of an enclosed indoor workplace from permitting smoking in |
| 11 | that workplace; amending s. 386.2045, F.S.; conforming |
| 12 | cross-references; amending s. 386.206, F.S.; deleting |
| 13 | obsolete provisions requiring that signs be posted in an |
| 14 | enclosed indoor workplace; amending s. 561.695, F.S.; |
| 15 | conforming cross-references; prohibiting a vendor from |
| 16 | permitting smoking in a licensed premises unless it is |
| 17 | designated as a stand-alone bar; providing a penalty for a |
| 18 | vendor who knowingly makes a false statement on an |
| 19 | affidavit of compliance; deleting a provision requiring |
| 20 | that a vendor operating a stand-alone bar certify to the |
| 21 | Division of Alcoholic Beverages and Tobacco that it |
| 22 | derives only a certain percentage of its gross revenue |
| 23 | from the sale of food; providing an effective date. |
| 24 |
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| 25 | Be It Enacted by the Legislature of the State of Florida: |
| 26 |
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| 27 | Section 1. Subsection (5) of section 386.203, Florida |
| 28 | Statutes, is amended, present subsections (7) through (13) are |
| 29 | renumbered as subsections (8) through (14), respectively, and a |
| 30 | new subsection (7) is added to that section, to read: |
| 31 | 386.203 Definitions.--As used in this part: |
| 32 | (5) "Enclosed indoor workplace" means any place where one |
| 33 | or more persons engages in work, and which place is |
| 34 | predominantly or totally bounded on all sides and above by |
| 35 | physical barriers, regardless of whether such barriers consist |
| 36 | of or include, without limitation, uncovered openings; screened |
| 37 | or otherwise partially covered openings; or open or closed |
| 38 | windows, jalousies, doors, or the like. |
| 39 | (a) A place is "predominantly" bounded by physical |
| 40 | barriers during any time when both of the following conditions |
| 41 | exist: |
| 42 | 1.(a) It is more than 50 percent covered from above by a |
| 43 | physical barrier that excludes rain., and |
| 44 | 2.(b) More than 50 percent of the combined surface area of |
| 45 | its sides is covered by closed physical barriers. In calculating |
| 46 | the percentage of side surface area covered by closed physical |
| 47 | barriers, all solid surfaces that block air flow, except |
| 48 | railings, must be considered as closed physical barriers. This |
| 49 | section applies to all such enclosed indoor workplaces and |
| 50 | enclosed parts thereof without regard to whether work is |
| 51 | occurring at any given time. |
| 52 | (b)(c) The term does not include any facility owned or |
| 53 | leased by and used exclusively for noncommercial activities |
| 54 | performed by the members and guests of a membership association, |
| 55 | including social gatherings, meetings, dining, and dances, if no |
| 56 | person or persons are engaged in work as defined in subsection |
| 57 | (13) (12). |
| 58 | (7) "Person" has the same meaning as in s. 1.01(3). |
| 59 | Section 2. Section 386.204, Florida Statutes, is amended |
| 60 | to read: |
| 61 | 386.204 Prohibition.--Except as otherwise provided in s. |
| 62 | 386.2045: |
| 63 | (1) A person may not smoke in an enclosed indoor |
| 64 | workplace, except as otherwise provided in s. 386.2045. |
| 65 | (2) A proprietor or other person in charge of an enclosed |
| 66 | indoor workplace may not permit smoking in that enclosed indoor |
| 67 | workplace. |
| 68 | Section 3. Subsections (2) and (4) of section 386.2045, |
| 69 | Florida Statutes, are amended to read: |
| 70 | 386.2045 Enclosed indoor workplaces; specific |
| 71 | exceptions.--Notwithstanding s. 386.204, tobacco smoking may be |
| 72 | permitted in each of the following places: |
| 73 | (2) RETAIL TOBACCO SHOP.--An enclosed indoor workplace |
| 74 | dedicated to or predominantly for the retail sale of tobacco, |
| 75 | tobacco products, and accessories for such products, as defined |
| 76 | in s. 386.203(9)(8). |
| 77 | (4) STAND-ALONE BAR.--A business that meets the definition |
| 78 | of a stand-alone bar as defined in s. 386.203(12)(11) and that |
| 79 | otherwise complies with all applicable provisions of the |
| 80 | Beverage Law and this part. |
| 81 | Section 4. Section 386.206, Florida Statutes, is amended |
| 82 | to read: |
| 83 | 386.206 Posting of signs; requiring policies.-- |
| 84 | (1) The person in charge of an enclosed indoor workplace |
| 85 | that prior to adoption of s. 20, Art. X of the State |
| 86 | Constitution was required to post signs under the requirements |
| 87 | of this section must continue to conspicuously post, or cause to |
| 88 | be posted, signs stating that smoking is not permitted in the |
| 89 | enclosed indoor workplace. Each sign posted pursuant to this |
| 90 | section must have letters of reasonable size which can be easily |
| 91 | read. The color, design, and precise place of posting of such |
| 92 | signs shall be left to the discretion of the person in charge of |
| 93 | the premises. |
| 94 | (1)(2) The proprietor or other person in charge of an |
| 95 | enclosed indoor workplace must develop and implement a policy |
| 96 | regarding the smoking prohibitions established in this part. The |
| 97 | policy may include, but is not limited to, procedures to be |
| 98 | taken when the proprietor or other person in charge witnesses or |
| 99 | is made aware of a violation of s. 386.204 in the enclosed |
| 100 | indoor workplace and must include a policy which prohibits an |
| 101 | employee from smoking in the enclosed indoor workplace. In order |
| 102 | to increase public awareness, the person in charge of an |
| 103 | enclosed indoor workplace may, at his or her discretion, post |
| 104 | "NO SMOKING" signs as deemed appropriate. |
| 105 | (2)(3) The person in charge of an airport terminal that |
| 106 | includes a designated customs smoking room must conspicuously |
| 107 | post, or cause to be posted, signs stating that no smoking is |
| 108 | permitted except in the designated customs smoking room located |
| 109 | in the customs area of the airport. Each sign posted pursuant to |
| 110 | this section must have letters of reasonable size that can be |
| 111 | easily read. The color, design, and precise locations at which |
| 112 | such signs are posted shall be left to the discretion of the |
| 113 | person in charge of the premises. |
| 114 | (3)(4) The proprietor or other person in charge of an |
| 115 | enclosed indoor workplace where a smoking cessation program, |
| 116 | medical research, or scientific research is conducted or |
| 117 | performed must conspicuously post, or cause to be posted, signs |
| 118 | stating that smoking is permitted for such purposes in |
| 119 | designated areas in the enclosed indoor workplace. Each sign |
| 120 | posted pursuant to this section must have letters of reasonable |
| 121 | size which can be easily read. The color, design, and precise |
| 122 | locations at which such signs are posted shall be left to the |
| 123 | discretion of the person in charge of the premises. |
| 124 | (5) The provisions of subsection (1) shall expire on July |
| 125 | 1, 2005. |
| 126 | Section 5. Section 561.695, Florida Statutes, is amended |
| 127 | to read: |
| 128 | 561.695 Stand-alone bar enforcement; qualification; |
| 129 | penalties.-- |
| 130 | (1) The division shall designate as a stand-alone bar the |
| 131 | licensed premises of a vendor that operates a business that |
| 132 | meets the definition of a stand-alone bar in s. 386.203(12)(11) |
| 133 | upon receipt of the vendor's election to permit tobacco smoking |
| 134 | in the licensed premises. A vendor may not permit smoking in the |
| 135 | licensed premises unless it is designated as a stand-alone bar |
| 136 | under this section. |
| 137 | (2) Upon this act becoming a law and until the annual |
| 138 | renewal of a vendor's license, a licensed vendor who makes the |
| 139 | required election under subsection (1) may permit tobacco |
| 140 | smoking on the licensed premises and must post a notice of the |
| 141 | such intention at the same location at which the vendor's |
| 142 | current alcoholic beverage license is posted. The notice must |
| 143 | shall affirm the vendor's intent to comply with the conditions |
| 144 | and qualifications of a stand-alone bar imposed pursuant to part |
| 145 | II of chapter 386 and the Beverage Law. |
| 146 | (3) Only the licensed vendor may provide or serve food on |
| 147 | the licensed premises of a stand-alone bar. Other than customary |
| 148 | bar snacks as defined by rule of the division, the licensed |
| 149 | vendor may not provide or serve food to a person on the licensed |
| 150 | premises without requiring the person to pay a separately stated |
| 151 | charge for the food that reasonably approximates the retail |
| 152 | value of the food. |
| 153 | (4) A licensed vendor operating a stand-alone bar must |
| 154 | conspicuously post signs at each entrance to the establishment |
| 155 | stating that smoking is permitted in the establishment. The |
| 156 | color and design of the such signs shall be left to the |
| 157 | discretion of the person in charge of the premises. |
| 158 | (5) After the initial designation, to continue to qualify |
| 159 | as a stand-alone bar the licensee must provide to the division |
| 160 | annually, on or before the licensee's annual renewal date, an |
| 161 | affidavit that certifies, with respect to the preceding 12-month |
| 162 | period, the following: |
| 163 | (a) No more than 10 percent of the gross revenue of the |
| 164 | business is from the sale of food consumed on the licensed |
| 165 | premises as defined in s. 386.203(12)(11). |
| 166 | (b) Other than customary bar snacks as defined by rule of |
| 167 | the division, the licensed vendor does not provide or serve food |
| 168 | to a person on the licensed premises without requiring the |
| 169 | person to pay a separately stated charge for food that |
| 170 | reasonably approximates the retail value of the food. |
| 171 | (c) The licensed vendor conspicuously posts signs at each |
| 172 | entrance to the establishment stating that smoking is permitted |
| 173 | in the establishment. |
| 174 |
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| 175 | The division shall establish by rule the format of the affidavit |
| 176 | required by this subsection. A licensed vendor shall not |
| 177 | knowingly make a false statement on the affidavit required by |
| 178 | this subsection. In addition to the penalties provided in |
| 179 | subsection (7), a licensed vendor who knowingly makes a false |
| 180 | statement on the affidavit required by this subsection may be |
| 181 | subject to suspension or revocation of the vendor's alcoholic |
| 182 | beverage license under s. 561.29. |
| 183 | (6) Every third year after the initial designation, on or |
| 184 | before the licensee's annual license renewal, the licensed |
| 185 | vendor must additionally provide to the division an agreed upon |
| 186 | procedures report in a format established by rule of the |
| 187 | department from a Florida certified public accountant that |
| 188 | attests to the licensee's compliance with the percentage |
| 189 | requirement of s. 386.203(11) for the preceding 36-month period. |
| 190 | Such report shall be admissible in any proceeding pursuant to s. |
| 191 | 120.57. This subsection does not apply to a stand-alone bar if |
| 192 | the only food provided by the business, or in any other way |
| 193 | present or brought onto the premises for consumption by patrons, |
| 194 | is limited to nonperishable snack food items commercially |
| 195 | prepackaged off the premises of the stand-alone bar and served |
| 196 | without additions or preparation; except that a stand-alone bar |
| 197 | may pop popcorn for consumption on its premises, provided that |
| 198 | the equipment used to pop the popcorn is not used to prepare any |
| 199 | other food for patrons. |
| 200 | (6)(7) The Division of Alcoholic Beverages and Tobacco |
| 201 | shall have the power to enforce the provisions of part II of |
| 202 | chapter 386 and to audit a licensed vendor that operates a |
| 203 | business that meets the definition of a stand-alone bar as |
| 204 | provided in s. 386.203(12)(11) for compliance with this section. |
| 205 | (7)(8) Any vendor that operates a business that meets the |
| 206 | definition of a stand-alone bar as provided in s. |
| 207 | 386.203(12)(11) who violates the provisions of this section or |
| 208 | part II of chapter 386 shall be subject to the following |
| 209 | penalties: |
| 210 | (a) For the first violation, the vendor shall be subject |
| 211 | to a warning or a fine of up to $500, or both.; |
| 212 | (b) For the second violation within 2 years after the |
| 213 | first violation, the vendor shall be subject to a fine of not |
| 214 | less than $500 or more than $2,000.; |
| 215 | (c) For the third or subsequent violation within 2 years |
| 216 | after the first violation, the vendor shall receive a suspension |
| 217 | of the right to maintain a stand-alone bar in which tobacco |
| 218 | smoking is permitted, not to exceed 30 days, and shall be |
| 219 | subject to a fine of not less than $500 or more than $2,000.; |
| 220 | and |
| 221 | (d) For the fourth or subsequent violation, the vendor |
| 222 | shall receive a 60-day suspension of the right to maintain a |
| 223 | stand-alone bar in which tobacco smoking is permitted and shall |
| 224 | be subject to a fine of not less than $500 or more than $2,000 |
| 225 | or revocation of the right to maintain a stand-alone bar in |
| 226 | which tobacco smoking is permitted. |
| 227 | (8)(9) The division shall adopt rules governing the |
| 228 | designation process, criteria for qualification, required |
| 229 | recordkeeping, auditing, and all other rules necessary for the |
| 230 | effective enforcement and administration of this section and |
| 231 | part II of chapter 386. The division is authorized to adopt |
| 232 | emergency rules pursuant to s. 120.54(4) to implement the |
| 233 | provisions of this section. |
| 234 | Section 6. This act shall take effect July 1, 2006. |