Florida Senate - 2019                             CS for SB 7012
       
       
        
       By the Committees on Rules; and Innovation, Industry, and
       Technology
       
       
       
       
       595-02741-19                                          20197012c1
    1                        A bill to be entitled                      
    2         An act relating to vaping; implementing s. 20, Art. X
    3         of the State Constitution, as amended by Amendment 9
    4         (2018); renaming part II of ch. 386, F.S.; expanding
    5         its application to include vaping in indoor areas;
    6         amending s. 386.202, F.S.; revising legislative
    7         intent; amending s. 386.203, F.S.; defining and
    8         redefining terms; amending s. 386.204, F.S.;
    9         prohibiting vaping in an enclosed indoor workplace,
   10         except as otherwise provided; amending s. 386.2045,
   11         F.S.; providing exceptions to the prohibition against
   12         vaping and smoking in an enclosed indoor workplace;
   13         amending s. 386.205, F.S.; revising requirements for
   14         customs smoking rooms; amending s. 386.206, F.S.;
   15         requiring the proprietor or other person in charge of
   16         an enclosed indoor workplace to develop and implement
   17         a policy regarding specified smoking and vaping
   18         prohibitions; authorizing the proprietor or other
   19         person to post signs to indicate that smoking and
   20         vaping are prohibited; requiring specified signs to be
   21         posted in airport terminals and in enclosed indoor
   22         workplaces under certain circumstances; amending s.
   23         386.207, F.S.; making technical changes; reenacting s.
   24         386.208, F.S., relating to penalties; amending s.
   25         386.209, F.S.; clarifying that the preemption to the
   26         state of the regulation of smoking does not preclude
   27         the adoption of an ordinance on the use of vapor
   28         generating devices; amending s. 386.211, F.S.;
   29         revising requirements for public announcements in mass
   30         transportation terminals; amending s. 386.212, F.S.;
   31         prohibiting vaping near school property; providing
   32         civil penalties; amending s. 386.2125, F.S.;
   33         authorizing the Department of Business and
   34         Professional Regulation, in consultation with the
   35         State Fire Marshal, to adopt certain rules; providing
   36         requirements for assessing a vaping cessation program
   37         for approval; amending s. 561.695, F.S.; conforming
   38         provisions to changes made by the act to allow a
   39         vendor that operates a stand-alone bar to authorize
   40         tobacco smoking and vaping in the licensed premises;
   41         providing requirements, enforcement, and penalties for
   42         stand-alone bars that authorize vaping; providing an
   43         effective date.
   44          
   45  Be It Enacted by the Legislature of the State of Florida:
   46  
   47         Section 1. Part II of chapter 386, Florida Statutes,
   48  entitled “INDOOR AIR: TOBACCO SMOKE,” is renamed “INDOOR AIR:
   49  SMOKING AND VAPING.”
   50         Section 2. Section 386.202, Florida Statutes, is amended to
   51  read:
   52         386.202 Legislative intent.—The purpose of this part is to
   53  protect people from the health hazards of secondhand tobacco
   54  smoke and vapor and to implement the Florida health initiative
   55  in s. 20, Art. X of the State Constitution. It is the intent of
   56  the Legislature to not inhibit, or otherwise obstruct, medical
   57  or scientific research, or smoking or vaping cessation programs
   58  approved by the Department of Health.
   59         Section 3. Present subsections (7), (8), (9), (10), (11),
   60  and (12) of section 386.203, Florida Statutes, are redesignated
   61  as subsections (8), (9), (10), (11), (12), and (17),
   62  respectively, new subsections (7), (13), (14), (15), and (16)
   63  are added to that section, and present subsections (4), (5), and
   64  (13) of that section are amended, to read:
   65         386.203 Definitions.—As used in this part:
   66         (4) “Designated smoking guest rooms at public lodging
   67  establishments” means the sleeping rooms and directly associated
   68  private areas, such as bathrooms, living rooms, and kitchen
   69  areas, if any, rented to guests for their exclusive transient
   70  occupancy in public lodging establishments, including hotels,
   71  motels, vacation rentals, transient apartments, transient
   72  lodging establishments, roominghouses, boardinghouses, bed and
   73  breakfast inns, and the like; and designated by the person or
   74  persons having management authority over such public lodging
   75  establishment as rooms in which smoking or vaping may be
   76  authorized permitted.
   77         (5) “Enclosed indoor workplace” means any place where one
   78  or more persons engages in work, and which place is
   79  predominantly or totally bounded on all sides and above by
   80  physical barriers, regardless of whether such barriers consist
   81  of or include, without limitation, uncovered openings; screened
   82  or otherwise partially covered openings; or open or closed
   83  windows, jalousies, doors, or the like. A place is
   84  “predominantly” bounded by physical barriers during any time
   85  when both of the following conditions exist:
   86         (a) It is more than 50 percent covered from above by a
   87  physical barrier that excludes rain, and
   88         (b) More than 50 percent of the combined surface area of
   89  its sides is covered by closed physical barriers. In calculating
   90  the percentage of side surface area covered by closed physical
   91  barriers, all solid surfaces that block air flow, except
   92  railings, must be considered as closed physical barriers. This
   93  section applies to all such enclosed indoor workplaces and
   94  enclosed parts thereof without regard to whether work is
   95  occurring at any given time.
   96  (c) 
   97  The term does not include any facility owned or leased by and
   98  used exclusively for noncommercial activities performed by the
   99  members and guests of a membership association, including social
  100  gatherings, meetings, dining, and dances, if no person or
  101  persons are engaged in work as defined in this section
  102  subsection (12).
  103         (7) “Membership association” means a charitable, nonprofit,
  104  or veterans’ organization that holds a current exemption under
  105  s. 501(c)(3), (4), (7), (8), (10), or (19) or s. 501(d) of the
  106  Internal Revenue Code.
  107         (13) “Vape or “vaping” means to inhale or exhale vapor
  108  produced by a vapor-generating electronic device or to possess a
  109  vapor-generating electronic device while that device is actively
  110  employing an electronic, a chemical, or a mechanical means
  111  designed to produce vapor or aerosol from a nicotine product or
  112  any other substance. The term does not include the mere
  113  possession of a vapor-generating electronic device.
  114         (14) “Vapor” means aerosolized or vaporized nicotine or
  115  other aerosolized or vaporized substance produced by a vapor
  116  generating electronic device or exhaled by the person using such
  117  a device.
  118         (15) “Vapor-generating electronic device” means any product
  119  that employs an electronic, a chemical, or a mechanical means
  120  capable of producing vapor or aerosol from a nicotine product or
  121  any other substance, including, but not limited to, an
  122  electronic cigarette, electronic cigar, electronic cigarillo,
  123  electronic pipe, or other similar device or product, any
  124  replacement cartridge for such device, and any other container
  125  of a solution or other substance intended to be used with or
  126  within an electronic cigarette, electronic cigar, electronic
  127  cigarillo, electronic pipe, or other similar device or product.
  128         (16) “Vapor-generating electronic device retailer” or
  129  “retail vape shop” means any enclosed indoor workplace dedicated
  130  to or predominantly for the retail sale of vapor-generating
  131  electronic devices and components, parts, and accessories for
  132  such products, in which the sale of other products or services
  133  is merely incidental.
  134         (13) “Membership association” means a charitable,
  135  nonprofit, or veterans’ organization that holds a current
  136  exemption under s. 501(c)(3), (4), (7), (8), (10), or (19) or s.
  137  501(d) of the Internal Revenue Code.
  138         Section 4. Section 386.204, Florida Statutes, is amended to
  139  read:
  140         386.204 Prohibition.—A person may not smoke or vape in an
  141  enclosed indoor workplace, except as otherwise provided in s.
  142  386.2045.
  143         Section 5. Section 386.2045, Florida Statutes, is amended
  144  to read:
  145         386.2045 Enclosed indoor workplaces; specific exceptions.
  146  Notwithstanding s. 386.204, tobacco smoking or vaping, or both,
  147  may be authorized permitted in each of the following places:
  148         (1) Private residence.—A private residence whenever it is
  149  not being used commercially to provide child care, adult care,
  150  or health care, or any combination thereof as defined in s.
  151  386.203(1).
  152         (2) A retail tobacco shop.—An enclosed indoor workplace
  153  dedicated to or predominantly for the retail sale of tobacco,
  154  tobacco products, and accessories for such products, as defined
  155  in s. 386.203(8).
  156         (3) A retail vape shop.
  157         (4)(3)A designated SMOKING GUEST ROOM.—A designated
  158  smoking guest room at a public lodging establishment as defined
  159  in s. 386.203(4).
  160         (5)(4)A stand-alone bar.—A business that meets the
  161  definition of a stand-alone bar as defined in s. 386.203(11) and
  162  that otherwise complies with all applicable provisions of the
  163  Beverage Law and this part.
  164         (6)(5)SMOKING CESSATION PROGRAM, MEDICAL OR SCIENTIFIC
  165  RESEARCH.—An enclosed indoor workplace, to the extent that
  166  tobacco smoking or vaping is an integral part of a smoking or
  167  vaping cessation program approved by the department, or medical
  168  or scientific research conducted therein. Each room in which
  169  tobacco smoking or vaping, or both, are authorized is permitted
  170  must comply with the signage requirements in s. 386.206.
  171         (7)(6)Customs smoking room.—A customs smoking room in an
  172  airport in-transit lounge under the authority and control of the
  173  Bureau of Customs and Border Protection of the United States
  174  Department of Homeland Security subject to the restrictions
  175  contained in s. 386.205.
  176         Section 6. Section 386.205, Florida Statutes, is amended to
  177  read:
  178         386.205 Customs smoking rooms.—A customs smoking room may
  179  be designated by the person in charge of an airport in-transit
  180  lounge under the authority and control of the Bureau of Customs
  181  and Border Protection of the United States Department of
  182  Homeland Security. A customs smoking room may only be designated
  183  only in an airport in-transit lounge under the authority and
  184  control of the Bureau of Customs and Border Protection of the
  185  United States Department of Homeland Security. A customs smoking
  186  room may not be designated in an elevator, restroom, or any
  187  common area as defined by s. 386.203. Each customs smoking room
  188  must conform to the following requirements:
  189         (1) Work, other than essential services defined in s.
  190  386.203(6), may must not be performed in the room at any given
  191  time.
  192         (2) Tobacco smoking and vaping are prohibited must not be
  193  permitted in the room while any essential services are being
  194  performed in the room.
  195         (3) Each customs smoking room must be enclosed by physical
  196  barriers that are impenetrable by secondhand tobacco smoke and
  197  vapor and must prevent the escape of the secondhand tobacco
  198  smoke and vapor into the enclosed indoor workplace.
  199         (4) Each customs smoking room must exhaust tobacco smoke
  200  and vapor directly to the outside and away from air intake
  201  ducts, and be maintained under negative pressure, with respect
  202  to surrounding spaces, sufficient to contain the tobacco smoke
  203  and vapor within the room.
  204         (5) Each customs smoking room must comply with the signage
  205  requirements in s. 386.206.
  206         Section 7. Section 386.206, Florida Statutes, is amended to
  207  read:
  208         386.206 Posting of signs; requiring policies.—
  209         (1) The proprietor or other person in charge of an enclosed
  210  indoor workplace must develop and implement a policy regarding
  211  the smoking and vaping prohibitions established in this part.
  212  The policy may include, but is not limited to, procedures to be
  213  taken when the proprietor or other person in charge witnesses or
  214  is made aware of a violation of s. 386.204 in the enclosed
  215  indoor workplace and must include a policy which prohibits an
  216  employee from smoking or vaping, or both, in the enclosed indoor
  217  workplace. In order to increase public awareness, the person in
  218  charge of an enclosed indoor workplace may, at his or her
  219  discretion, post signs to indicate that smoking or vaping, or
  220  both, are prohibited “NO SMOKING” signs as deemed appropriate.
  221         (2) The person in charge of an airport terminal that
  222  includes a designated customs smoking room must conspicuously
  223  post, or cause to be posted, signs stating that no smoking and
  224  vaping are prohibited is permitted except in the designated
  225  customs smoking room located in the customs area of the airport.
  226  Each sign posted pursuant to this subsection section must have
  227  letters of reasonable size which that can be easily read. The
  228  color, design, and precise locations at which such signs are
  229  posted shall be left to the discretion of the person in charge
  230  of the premises.
  231         (3) The proprietor or other person in charge of an enclosed
  232  indoor workplace where a smoking or vaping cessation program,
  233  medical research, or scientific research is conducted or
  234  performed must conspicuously post, or cause to be posted, signs
  235  stating that smoking or vaping, or both, as applicable, are
  236  authorized is permitted for such purposes in designated areas in
  237  the enclosed indoor workplace. Each sign posted pursuant to this
  238  subsection section must have letters of reasonable size which
  239  can be easily read. The color, design, and precise locations at
  240  which such signs are posted shall be left to the discretion of
  241  the person in charge of the premises.
  242         Section 8. Section 386.207, Florida Statutes, is amended to
  243  read:
  244         386.207 Administration; enforcement; civil penalties.—
  245         (1) The department or the Division of Hotels and
  246  Restaurants or the Division of Alcoholic Beverages and Tobacco
  247  of the Department of Business and Professional Regulation shall
  248  enforce this part based upon each department’s specific areas of
  249  regulatory authority and to implement such enforcement shall
  250  adopt, in consultation with the State Fire Marshal, rules
  251  specifying procedures to be followed by enforcement personnel in
  252  investigating complaints and notifying alleged violators and
  253  rules specifying procedures by which appeals may be taken by
  254  aggrieved parties.
  255         (2) Public agencies responsible for the management and
  256  maintenance of government buildings shall report observed
  257  violations to the department. The State Fire Marshal shall
  258  report to the department observed violations of this part found
  259  during its periodic inspections conducted under its regulatory
  260  authority.
  261         (3) The department or the Division of Hotels and
  262  Restaurants or the Division of Alcoholic Beverages and Tobacco
  263  of the Department of Business and Professional Regulation, upon
  264  notification of observed violations of this part, shall issue to
  265  the proprietor or other person in charge of such enclosed indoor
  266  workplace a notice to comply with this part. If the person fails
  267  to comply within 30 days after receipt of the notice, the
  268  department or the Division of Hotels and Restaurants or the
  269  Division of Alcoholic Beverages and Tobacco of the Department of
  270  Business and Professional Regulation shall assess against the
  271  person a civil penalty against the person of not less than $250
  272  and not more than to exceed $750 for the first violation and not
  273  less than $500 and not more than to exceed $2,000 for each
  274  subsequent violation. The imposition of the fine must be in
  275  accordance with chapter 120. If a person refuses to comply with
  276  this part, after having been assessed such penalty, the
  277  department or the Division of Hotels and Restaurants or the
  278  Division of Alcoholic Beverages and Tobacco of the Department of
  279  Business and Professional Regulation may file a complaint in the
  280  circuit court of the county in which the enclosed indoor
  281  workplace is located to require compliance.
  282         (4) All fine moneys collected pursuant to this section
  283  shall be used by the department for children’s medical services
  284  programs pursuant to the provisions of part I of chapter 391.
  285         Section 9. Section 386.208, Florida Statutes, is reenacted
  286  to read:
  287         386.208 Penalties.—Any person who violates s. 386.204
  288  commits a noncriminal violation as defined in s. 775.08(3),
  289  punishable by a fine of not more than $100 for the first
  290  violation and not more than $500 for each subsequent violation.
  291  Jurisdiction shall be with the appropriate county court.
  292         Section 10. Section 386.209, Florida Statutes, is amended
  293  to read:
  294         386.209 Regulation of smoking preempted to state.—This part
  295  expressly preempts regulation of smoking to the state and
  296  supersedes any municipal or county ordinance on the subject;
  297  however, school districts may further restrict smoking by
  298  persons on school district property. This section does not
  299  preclude the adoption of municipal or county ordinances that
  300  impose more restrictive regulation on the use of vapor
  301  generating devices than is provided in this part.
  302         Section 11. Section 386.211, Florida Statutes, is amended
  303  to read:
  304         386.211 Public announcements in mass transportation
  305  terminals.—Announcements about the Florida Clean Indoor Air Act
  306  shall be made regularly over public address systems in terminals
  307  of public transportation carriers located in metropolitan
  308  statistical areas with populations over 230,000 according to the
  309  latest census. These announcements shall be made at least every
  310  30 minutes and shall be made in appropriate languages. Each
  311  announcement must include a statement to the effect that Florida
  312  is a clean indoor air state and that smoking and vaping are
  313  prohibited is not allowed except as provided in this part.
  314         Section 12. Section 386.212, Florida Statutes, is amended
  315  to read:
  316         386.212 Smoking and vaping prohibited near school property;
  317  penalty.—
  318         (1) It is unlawful for any person under 18 years of age to
  319  smoke tobacco or vape in, on, or within 1,000 feet of the real
  320  property comprising a public or private elementary, middle, or
  321  secondary school between the hours of 6 a.m. and midnight. This
  322  section does not apply to any person occupying a moving vehicle
  323  or within a private residence.
  324         (2) A law enforcement officer may issue a citation in such
  325  form as prescribed by a county or municipality to any person
  326  violating the provisions of this section. Any such citation must
  327  contain:
  328         (a) The date and time of issuance.
  329         (b) The name and address of the person cited.
  330         (c) The date and time the civil infraction was committed.
  331         (d) The statute violated.
  332         (e) The facts constituting the violation.
  333         (f) The name and authority of the law enforcement officer.
  334         (g) The procedure for the person to follow to pay the civil
  335  penalty, to contest the citation, or to appear in court.
  336         (h) The applicable civil penalty if the person elects not
  337  to contest the citation.
  338         (i) The applicable civil penalty if the person elects to
  339  contest the citation.
  340         (3) Any person issued a citation pursuant to this section
  341  shall be deemed to be charged with a civil infraction punishable
  342  by a maximum civil penalty not to exceed $25, or 50 hours of
  343  community service or, where available, successful completion of
  344  a school-approved anti-tobacco or anti-vaping “alternative to
  345  suspension” program.
  346         (4) Any person who fails to comply with the directions on
  347  the citation shall be deemed to waive his or her right to
  348  contest the citation and an order to show cause may be issued by
  349  the court.
  350         Section 13. Section 386.2125, Florida Statutes, is amended
  351  to read:
  352         386.2125 Rulemaking.—The department and the Department of
  353  Business and Professional Regulation, may shall, in consultation
  354  with the State Fire Marshal, have the authority to adopt rules
  355  pursuant to ss. 120.536(1) and 120.54 to implement the
  356  provisions of this part within each agency’s specific areas of
  357  regulatory authority. Whenever assessing a smoking or vaping
  358  cessation program for approval, the department shall consider
  359  whether the smoking or vaping cessation program limits, to the
  360  extent possible, any the potential for exposure to secondhand
  361  tobacco smoke or vapor for, if any, to nonparticipants in the
  362  enclosed indoor workplace.
  363         Section 14. Section 561.695, Florida Statutes, is amended
  364  to read:
  365         561.695 Stand-alone bar enforcement; qualification;
  366  penalties.—
  367         (1) The division shall designate as a stand-alone bar the
  368  licensed premises of a vendor that operates a business that
  369  meets the definition of a stand-alone bar in s. 386.203 s.
  370  386.203(11) upon receipt of the vendor’s election to authorize
  371  permit tobacco smoking or vaping, or both, in the licensed
  372  premises.
  373         (2) Upon this act becoming a law and until the annual
  374  renewal of a vendor’s license, A licensed vendor who makes the
  375  required election under subsection (1) before the annual renewal
  376  of its license may authorize permit tobacco smoking or vaping,
  377  or both, on the licensed premises and must post a notice of such
  378  intention at the same location at which the vendor’s current
  379  alcoholic beverage license is posted. The notice shall affirm
  380  the vendor’s intent to comply with the conditions and
  381  qualifications of a stand-alone bar imposed pursuant to part II
  382  of chapter 386 and the Beverage Law.
  383         (3) Only the licensed vendor may provide or serve food on
  384  the licensed premises of a stand-alone bar. Other than customary
  385  bar snacks as defined by rule of the division, the licensed
  386  vendor may not provide or serve food to a person on the licensed
  387  premises without requiring the person to pay a separately stated
  388  charge for the food that reasonably approximates the retail
  389  value of the food.
  390         (4) A licensed vendor operating a stand-alone bar must
  391  conspicuously post signs at each entrance to the establishment
  392  stating that smoking and vaping are authorized is permitted in
  393  the establishment. The color and design of such signs shall be
  394  left to the discretion of the person in charge of the premises.
  395         (5) After the initial designation, to continue to qualify
  396  as a stand-alone bar, the licensee must provide to the division
  397  annually, on or before the licensee’s annual renewal date, an
  398  affidavit that certifies, with respect to the preceding 12-month
  399  period, the following:
  400         (a) No more than 10 percent of the gross revenue of the
  401  business is from the sale of food consumed on the licensed
  402  premises as defined in s. 386.203(12) s. 386.203(11).
  403         (b) Other than customary bar snacks as defined by rule of
  404  the division, the licensed vendor does not provide or serve food
  405  to a person on the licensed premises without requiring the
  406  person to pay a separately stated charge for food that
  407  reasonably approximates the retail value of the food.
  408         (c) The licensed vendor conspicuously posts signs at each
  409  entrance to the establishment stating that smoking or vaping, or
  410  both, are authorized is permitted in the establishment.
  411  
  412  The division shall establish by rule the format of the affidavit
  413  required by this subsection. A licensed vendor shall not
  414  knowingly make a false statement on the affidavit required by
  415  this subsection. In addition to the penalties provided in
  416  subsection (7), a licensed vendor who knowingly makes a false
  417  statement on the affidavit required by this subsection may be
  418  subject to suspension or revocation of the vendor’s alcoholic
  419  beverage license under s. 561.29.
  420         (6) The Division of Alcoholic Beverages and Tobacco shall
  421  have the power to enforce the provisions of part II of chapter
  422  386 and to audit a licensed vendor that operates a business that
  423  meets the definition of a stand-alone bar as provided in s.
  424  386.203 s. 386.203(11) for compliance with this section.
  425         (7) Any vendor that operates a business that meets the
  426  definition of a stand-alone bar as provided in s. 386.203 which
  427  s. 386.203(11) who violates the provisions of this section or
  428  part II of chapter 386 is shall be subject to the following
  429  penalties:
  430         (a) For the first violation, the vendor shall be subject to
  431  a warning or a fine of up to $500, or both;
  432         (b) For the second violation within 2 years after the first
  433  violation, the vendor shall be subject to a fine of not less
  434  than $500 or more than $2,000;
  435         (c) For the third or subsequent violation within 2 years
  436  after the first violation, the vendor shall receive a suspension
  437  of the right to maintain a stand-alone bar in which tobacco
  438  smoking or vaping, or both, are authorized is permitted, not to
  439  exceed 30 days, and shall be subject to a fine of not less than
  440  $500 or more than $2,000; and
  441         (d) For the fourth or subsequent violation, the vendor
  442  shall receive a 60-day suspension of the right to maintain a
  443  stand-alone bar in which tobacco smoking or vaping, or both, are
  444  authorized is permitted and shall be subject to a fine of not
  445  less than $500 or more than $2,000 or revocation of the right to
  446  maintain a stand-alone bar in which tobacco smoking or vaping,
  447  or both, are authorized is permitted.
  448         (8) The division shall adopt rules governing the
  449  designation process, criteria for qualification, required
  450  recordkeeping, auditing, and all other rules necessary for the
  451  effective enforcement and administration of this section and
  452  part II of chapter 386. The division is authorized to adopt
  453  emergency rules pursuant to s. 120.54(4) to implement the
  454  provisions of this section.
  455         Section 15. This act shall take effect July 1, 2019.