HB 0063A, Engrossed 1 2003
1	A bill to be entitled
2	An act relating to the Florida Clean Indoor Air Act;
3	implementing s. 20, Art. X of the State Constitution;
4	amending s. 386.201, F.S., providing a popular name;
5	amending s. 386.202, F.S.; providing legislative intent;
6	amending s. 386.203, F.S.; providing definitions; amending
7	s. 386.204, F.S.; prohibiting smoking in an enclosed
8	indoor workplace; creating s. 386.2045, F.S.; establishing
9	specific exceptions to the prohibition against smoking in
10	an enclosed indoor workplace; amending s. 386.205, F.S.;
11	providing for designated customs smoking rooms in airport
12	in-transit lounges; providing requirements with respect
13	thereto; amending s. 386.206, F.S.; providing for
14	continuation of requirements with respect to the posting
15	of signs stating that smoking is not permitted in an
16	enclosed indoor workplace; requiring the proprietor or
17	person in charge of an enclosed indoor workplace to
18	develop and implement a policy regarding smoking
19	prohibitions; providing requirements with respect to
20	posting of signs at an airport terminal that includes a
21	designated customs smoking room and an enclosed indoor
22	workplace where a smoking cessation program or medical or
23	scientific research is conducted or performed; providing
24	for expiration of such provisions; amending s. 386.207,
25	F.S.; providing for enforcement of the Florida Clean
26	Indoor Act by the Department of Health, the Division of
27	Hotels and Restaurants of the Department of Business and
28	Professional Regulation, and the Division of Alcoholic
29	Beverages and Tobacco of the Department of Business and
30	Professional Regulation; increasing penalties; eliminating
31	exemptions; amending s. 386.208, F.S.; providing
32	penalties; reenacting s. 386.209, F.S., which preempts
33	regulation of smoking to the state; amending s. 386.211,
34	F.S., relating to public announcements in mass
35	transportation terminals, to conform; reenacting and
36	amending s. 386.212, F.S., which prohibits any person
37	under 18 years of age from smoking tobacco in, on, or
38	within 1,000 feet of the real property comprising a public
39	or private elementary, middle, or secondary school and
40	provides penalties therefor; creating s. 386.2125, F.S.;
41	requiring the Department of Health and the Department of
42	Business and Professional Regulation to adopt rules;
43	creating s. 561.695, F.S.; providing for designation of
44	stand-alone bars by the Division of Alcoholic Beverages
45	and Tobacco of the Department of Business and Professional
46	Regulation; providing procedure, requirements, and
47	restrictions with respect to such designation; providing
48	for rulemaking; providing for enforcement; providing
49	penalties; providing severability; providing for
50	construction of the act in pari materia with laws enacted
51	during the 2003 Regular Session of the Legislature;
52	providing an effective date.
53
54	Be It Enacted by the Legislature of the State of Florida:
55
56	Section 1. Section 386.201, Florida Statutes, is amended
57	to read:
58	386.201 Popular nameShort title.--This part may be cited
59	by the popular nameasthe "Florida Clean Indoor Air Act."
60	Section 2. Section 386.202, Florida Statutes, is amended
61	to read:
62	386.202 Legislative intent.--The purpose of this part is
63	to protect people from the public health hazards of second-hand,
64	comfort, and environment by creating areas in public places and
65	at public meetings that are reasonably free from tobacco smoke
66	and to implement the Florida health initiative in s. 20, Art. X
67	of the State Constitutionby providing a uniform statewide
68	maximum code. It is the intent of the Legislature to not
69	inhibit, or otherwise obstruct, medical or scientific research
70	or smoking-cessation programs approved by the Department of
71	Health.This part shall not be interpreted to require the
72	designation of smoking areas. However, it is the intent of the
73	Legislature to discourage the designation of any area within a
74	government building as a smoking area.
75	Section 3. Section 386.203, Florida Statutes, is amended
76	to read:
77	386.203 Definitions.--As used in this part:
78	(1) "Commercial" use of a private residence means any time
79	during which the owner, lessee, or other person occupying or
80	controlling the use of the private residence is furnishing in
81	the private residence, or causing or allowing to be furnished in
82	the private residence, child care, adult care, or health care,
83	or any combination thereof, and receiving or expecting to
84	receive compensation therefor.
85	(2) "Common area" means a hallway, corridor, lobby, aisle,
86	water fountain area, restroom, stairwell, entryway, or
87	conference room in a customs area of an airport terminal under
88	the authority and control of the Bureau of Customs and Border
89	Protection of the United States Department of Homeland Security.
90	(3) "Department" means the Department of Health.
91	(4) "Designated smoking guest rooms at public lodging
92	establishments" means the sleeping rooms and directly associated
93	private areas, such as bathrooms, living rooms, and kitchen
94	areas, if any, rented to guests for their exclusive transient
95	occupancy in public lodging establishments, including hotels,
96	motels, resort condominiums, transient apartments, transient
97	lodging establishments, rooming houses, boarding houses, resort
98	dwellings, bed and breakfast inns, and the like; and designated
99	by the person or persons having management authority over such
100	public lodging establishment as rooms in which smoking may be
101	permitted.
102	(5) "Enclosed indoor workplace" means any place where one
103	or more persons engages in work, and which place is
104	predominantly or totally bounded on all sides and above by
105	physical barriers, regardless of whether such barriers consist
106	of or include, without limitation, uncovered openings, screened
107	or otherwise partially covered openings; or open or closed
108	windows, jalousies, doors, or the like. A place is
109	"predominantly" bounded by physical barriers during any time
110	when both of the following conditions exist:
111	(a) It is more than 50 percent covered from above by a
112	physical barrier that excludes rain, and
113	(b) More than 50 percent of the combined surface area of
114	its sides is covered by closed physical barriers. In
115	calculating the percentage of side surface area covered by
116	closed physical barriers, all solid surfaces that block air
117	flow, except railings, must be considered as closed physical
118	barriers. This section applies to all such enclosed indoor
119	workplaces and enclosed parts thereof without regard to whether
120	work is occurring at any given time.
121	(c) The term does not include any facility owned or leased
122	by and used exclusively for noncommercial activities performed
123	by the members and guests of a membership association, including
124	social gatherings, meetings, dining, and dances, if no person or
125	persons are engaged in work as defined in subsection (12).
126	(6) "Essential services" means those services that are
127	essential to the maintenance of any enclosed indoor room,
128	including, but not limited to, janitorial services, repairs, or
129	renovations.
130	(7) "Physical barrier" includes an uncovered opening, a
131	screened or otherwise partially covered opening, or an open or
132	closed window, jalousie, or door.
133	(8) "Retail tobacco shop" means any enclosed indoor
134	workplace dedicated to or predominantly for the retail sale of
135	tobacco, tobacco products, and accessories for such products, in
136	which the sale of other products or services is merely
137	incidental. Any enclosed indoor workplace of a business that
138	manufactures, imports, or distributes tobacco products or of a
139	tobacco leaf dealer is a business dedicated to or predominantly
140	for the retail sale of tobacco and tobacco products when, as a
141	necessary and integral part of the process of making,
142	manufacturing, importing, or distributing a tobacco product for
143	the eventual retail sale of such tobacco or tobacco product,
144	tobacco is heated, burned, or smoked or a lighted tobacco
145	product is tested.
146	(9) "Second-hand smoke," also known as environmental
147	tobacco smoke (ETS), means smoke emitted from lighted,
148	smoldering, or burning tobacco when the smoker is not inhaling;
149	smoke emitted at the mouthpiece during puff drawing; and smoke
150	exhaled by the smoker.
151	(10)(4) "Smoking" means inhaling, exhaling, burning,
152	carrying, or possessing anypossession of a lighted tobacco
153	product, including cigarettes, cigars, pipe tobacco, and
154	cigarette, lighted cigar, lighted pipe, orany other lighted
155	tobacco product.
156	(11) "Stand-alone bar" means any licensed premises devoted
157	during any time of operation predominantly or totally to serving
158	alcoholic beverages, intoxicating beverages, or intoxicating
159	liquors, or any combination thereof, for consumption on the
160	licensed premises; in which the serving of food, if any, is
161	merely incidental to the consumption of any such beverage; and
162	the licensed premises is not located within, and does not share
163	any common entryway or common indoor area with, any other
164	enclosed indoor workplace, including any business for which the
165	sale of food or any other product or service is more than an
166	incidental source of gross revenue. A place of business
167	constitutes a stand-alone bar in which the service of food is
168	merely incidental in accordance with this subsection if the
169	licensed premises derives no more than 10 percent of its gross
170	revenue from the sale of food consumed on the licensed premises.
171	(12) "Work" means any person's providing any employment or
172	employment-type service for or at the request of another
173	individual or individuals or any public or private entity,
174	whether for compensation or not, whether full or part time,
175	whether legally or not. "Work" includes, without limitation, any
176	such service performed by an employee, independent contractor,
177	agent, partner, proprietor, manager, officer, director,
178	apprentice, trainee, associate, servant, volunteer, and the
179	like. The term does not include noncommercial activities
180	performed by members of a membership association.
181	(13) "Membership association" means a charitable,
182	nonprofit, or veterans' organization that holds a current
183	exemption under s. 501(c)(3), s. 501(c)(4), s. 501(c)(7), s.
184	501(c)(8), s. 501(c)(10), s. 501(c)(19), or s. 501(d) of the
185	Internal Revenue Code.
186	(1) "Public place" means the following enclosed, indoor
187	areas used by the general public:
188	(a) Government buildings;
189	(b) Public means of mass transportation and their
190	associated terminals not subject to federal smoking regulation;
191	(c) Elevators;
192	(d) Hospitals;
193	(e) Nursing homes;
194	(f) Educational facilities;
195	(g) Public school buses;
196	(h) Libraries;
197	(i) Courtrooms;
198	(j) Jury waiting and deliberation rooms;
199	(k) Museums;
200	(l) Theaters;
201	(m) Auditoriums;
202	(n) Arenas;
203	(o) Recreational facilities;
204	(p) Restaurants;
205	(q) Retail stores, except a retail store the primary
206	business of which is the sale of tobacco or tobacco related
207	products;
208	(r) Grocery stores;
209	(s) Places of employment;
210	(t) Health care facilities;
211	(u) Day care centers; and
212	(v) Common areas of retirement homes and condominiums.
213	(2) "Government building" means any building or any
214	portion of any building owned by or leased to the state or any
215	political subdivision thereof and used for governmental
216	purposes.
217	(3) "Public meeting" means all meetings open to the
218	public, including meetings of homeowner, condominium, or renter
219	or tenant associations unless such meetings are held in a
220	private residence.
221	(5) "Smoking area" means any designated area meeting the
222	requirements of ss. 386.205 and 386.206.
223	(6) "Common area" means any hallway, corridor, lobby,
224	aisle, water fountain area, restroom, stairwell, entryway, or
225	conference room in any public place.
226	(7) "Department" means the Department of Health.
227	(8) "Division" means the Division of Hotels and
228	Restaurants of the Department of Business and Professional
229	Regulation.
230	Section 4. Section 386.204, Florida Statutes, is amended
231	to read:
232	386.204 Prohibition.--A person may not smoke in an
233	enclosed indoor workplace, except as otherwise provided in s.
234	386.2045a public place or at a public meeting except in
235	designated smoking areas. These prohibitions do not apply in
236	cases in which an entire room or hall is used for a private
237	function and seating arrangements are under the control of the
238	sponsor of the function and not of the proprietor or person in
239	charge of the room or hall.
240	Section 5. Section 386.2045, Florida Statutes, is created
241	to read:
242	386.2045 Enclosed indoor workplaces; specific
243	exceptions.--Notwithstanding s. 386.204, tobacco smoking may be
244	permitted in each of the following places:
245	(1) PRIVATE RESIDENCE.--A private residence whenever it is
246	not being used commercially to provide child care, adult care,
247	or health care, or any combination thereof as defined in s.
248	386.203(1).
249	(2) RETAIL TOBACCO SHOP.--An enclosed indoor workplace
250	dedicated to or predominantly for the retail sale of tobacco,
251	tobacco products, and accessories for such products, as defined
252	in s. 386.203(8).
253	(3) DESIGNATED SMOKING GUEST ROOM.--A designated smoking
254	guest room at a public lodging establishment as defined in s.
255	386.203(4).
256	(4) STAND-ALONE BAR.--A business that meets the definition
257	of a stand-alone bar as defined in s. 386.203(11) and that
258	otherwise complies with all applicable provisions of the
259	Beverage Law and part II of this chapter.
260	(5) SMOKING-CESSATION PROGRAM, MEDICAL OR SCIENTIFIC
261	RESEARCH.--An enclosed indoor workplace, to the extent that
262	tobacco smoking is an integral part of a smoking-cessation
263	program approved by the department, or medical or scientific
264	research conducted therein. Each room in which tobacco smoking
265	is permitted must comply with the signage requirements in s.
266	386.206.
267	(6) CUSTOMS SMOKING ROOM.--A customs smoking room in an
268	airport in-transit lounge under the authority and control of the
269	Bureau of Customs and Border Protection of the United States
270	Department of Homeland Security subject to the restrictions
271	contained in s. 386.205.
272	Section 6. Section 386.205, Florida Statutes, is amended
273	to read:
274	386.205 CustomsDesignation of smoking roomsareas.--
275	(1) A customs smoking roomareasmay be designated by the
276	person in charge of an airport in-transit lounge under the
277	authority and control of the Bureau of Customs and Border
278	Protection of the United States Department of Homeland Security
279	a public place. A customs smoking room may only be designated in
280	an airport in-transit lounge under the authority and control of
281	the Bureau of Customs and Border Protection of the United States
282	Department of Homeland Security. A customs smoking room may not
283	be designated in an elevator, restroom, or any common area as
284	defined by s. 386.203. Each customs smoking room must conform to
285	the following requirements:
286	(a) Work, other than essential services defined in s.
287	386.203(6), must not be performed in the room at any given time.
288	(b) Tobacco smoking must not be permitted in the room
289	while any essential services are being performed in the room.
290	(c) Each customs smoking room must be enclosed by physical
291	barriers that are impenetrable by second-hand tobacco smoke and
292	prevent the escape of second-hand tobacco smoke into the
293	enclosed indoor workplace.
294	(d) Each customs smoking room must exhaust tobacco smoke
295	directly to the outside and away from air intake ducts, and be
296	maintained under negative pressure, with respect to surrounding
297	spaces, sufficient to contain tobacco smoke within the room.
298	(e) Each customs smoking room must comply with the signage
299	requirements in s. 386.206.If a smoking area is designated,
300	existing physical barriers and ventilation systems shall be used
301	to minimize smoke in adjacent nonsmoking areas. This provision
302	shall not be construed to require fixed structural or other
303	physical modifications in providing these areas or to require
304	operation of any existing heating, ventilating, and air-
305	conditioning system (HVAC system) in any manner which decreases
306	its energy efficiency or increases its electrical demand, or
307	both, nor shall this provision be construed to require
308	installation of new or additional HVAC systems.
309	(2)(a) A smoking area may not be designated in an
310	elevator, school bus, public means of mass transportation
311	subject only to state smoking regulation, restroom, hospital,
312	doctor's or dentist's waiting room, jury deliberation room,
313	county health department, day care center, school or other
314	educational facility, or any common area as defined in s.
315	386.203. However, a patient's room in a hospital, nursing home,
316	or other health care facility may be designated as a smoking
317	area if such designation is ordered by the attending physician
318	and agreed to by all patients assigned to that room.
319	(b) Notwithstanding anything in this part to the contrary,
320	no more than one-half of the rooms in any health care facility
321	may be designated as smoking areas.
322	(3) In a workplace where there are smokers and nonsmokers,
323	employers shall develop, implement, and post a policy regarding
324	designation of smoking and nonsmoking areas. Such a policy shall
325	take into consideration the proportion of smokers and
326	nonsmokers. Employers who make reasonable efforts to develop,
327	implement, and post such a policy shall be deemed in compliance.
328	An entire area may be designated as a smoking area if all
329	workers routinely assigned to work in that area at the same time
330	agree. With respect to the square footage in any public place as
331	described in subsection (4), this square footage shall not
332	include private office work space which is not a common area as
333	defined in s. 386.203(6) and which is ordinarily inaccessible to
334	the public.
335	(4)(a) No more than one-half of the total square footage
336	in any public place within a single enclosed indoor area used
337	for a common purpose shall be reserved and designated as a
338	smoking area.
339	(b) The square footage limitation set forth in paragraph
340	(a) shall not apply to any restaurant subject to this part. With
341	respect to such restaurants:
342	1. No more than 50 percent of the seats existing in a
343	restaurant's dining room at any time shall be located in an area
344	designated as a smoking area.
345	2. Effective October 1, 2001, no more than 35 percent of
346	the seats existing in a restaurant's dining room at any time
347	shall be located in an area designated as a smoking area.
348	(5) A smoking area may not contain common areas which are
349	expected to be used by the public.
350	(6) Each state agency may adopt rules for administering
351	this section which take into consideration the provisions of
352	this part.
353	Section 7. Section 386.206, Florida Statutes, is amended
354	to read:
355	386.206 Posting of signs; requiring policies.--
356	(1) The person in charge of an enclosed indoor workplace
357	that prior to adoption of s. 20, Art. X of the State
358	Constitution was required to post signs under the requirements
359	of this section must continue toa public place shall
360	conspicuously post, or cause to be posted, in any area
361	designated as a smoking area signs stating that smoking is not
362	permitted in the enclosed indoor workplacesuch area. Each sign
363	posted pursuant to this section mustshallhave letters of
364	reasonable size which can be easily read. The color, design, and
365	precise place of posting of such signs shall be left to the
366	discretion of the person in charge of the premises. In order to
367	increase public awareness, the person in charge of a public
368	place may, at his or her discretion, also post "NO SMOKING
369	EXCEPT IN DESIGNATED AREAS" signs as appropriate.
370	(2) The proprietor or other person in charge of an
371	enclosed indoor workplace must develop and implement a policy
372	regarding the smoking prohibitions established in this part.
373	The policy may include, but is not limited to, procedures to be
374	taken when the proprietor or other person in charge witnesses or
375	is made aware of a violation of s. 386.204 in the enclosed
376	indoor workplace and must include a policy which prohibits an
377	employee from smoking in the enclosed indoor workplace. In order
378	to increase public awareness, the person in charge of an
379	enclosed indoor workplace may, at his or her discretion, post
380	"NO SMOKING" signs as deemed appropriate.
381	(3) The person in charge of an airport terminal that
382	includes a designated customs smoking room must conspicuously
383	post, or cause to be posted, signs stating that no smoking is
384	permitted except in the designated customs smoking room located
385	in the customs area of the airport. Each sign posted pursuant to
386	this section must have letters of reasonable size that can be
387	easily read. The color, design, and precise locations at which
388	such signs are posted shall be left to the discretion of the
389	person in charge of the premises.
390	(4) The proprietor or other person in charge of an
391	enclosed indoor workplace where a smoking cessation program,
392	medical research, or scientific research is conducted or
393	performed must conspicuously post, or cause to be posted, signs
394	stating that smoking is permitted for such purposes in
395	designated areas in the enclosed indoor workplace. Each sign
396	posted pursuant to this section must have letters of reasonable
397	size which can be easily read. The color, design, and precise
398	locations at which such signs are posted shall be left to the
399	discretion of the person in charge of the premises.
400	(5) The provisions of subsection (1) shall expire on July
401	1, 2005.
402	Section 8. Section 386.207, Florida Statutes, is amended
403	to read:
404	386.207 Administration; enforcement; civil penalties;
405	exemptions.--
406	(1) The department or the Division of Hotels and
407	Restaurants or the Division of Alcoholic Beverages and Tobacco
408	of the Department of Business and Professional Regulationor the
409	division shall enforce this part based upon each department’s
410	specific areas of regulatory authorityss. 386.205 and 386.206
411	and to implement such enforcement shall adopt, in consultation
412	with the State Fire Marshal, rules specifying procedures to be
413	followed by enforcement personnel in investigating complaints
414	and notifying alleged violators, rules defining types of cases
415	for which exemptions may be granted,and rules specifying
416	procedures by which appeals may be taken by aggrieved parties.
417	(2) Public agencies responsible for the management and
418	maintenance of government buildings shall report observed
419	violations to the department or division. The State Fire Marshal
420	shall report to the department or divisionobserved violations
421	of this partss. 386.205 and 386.206found during its periodic
422	inspections conducted underpursuant toits regulatory
423	authority.
424	(3) The department or the Division of Hotels and
425	Restaurants or the Division of Alcoholic Beverages and Tobacco
426	of the Department of Business and Professional Regulationor the
427	division, upon notification of observed violations of this part
428	ss. 386.205 and 386.206, shall issue to the proprietor or other
429	person in charge of such enclosed indoor workplacepublic place
430	a notice to comply with this partss. 386.205 and 386.206. If
431	thesuch person fails to comply within 30 days after receipt of
432	thesuch notice, the department or the Division of Hotels and
433	Restaurants or the Division of Alcoholic Beverages and Tobacco
434	of the Department of Business and Professional Regulation
435	division shall assess a civil penalty against the person of not
436	less than $250 andhim or her not to exceed $750$100for the
437	first violation and not less than $500 and not to exceed $2,000
438	$500 for each subsequent violation. The imposition of thesuch
439	fine mustshall be in accordance with the provisions ofchapter
440	120. If a person refuses to comply with this partss. 386.205
441	and 386.206, after having been assessed such penalty, the
442	department or the Division of Hotels and Restaurants or the
443	Division of Alcoholic Beverages and Tobacco of the Department of
444	Business and Professional Regulationdivisionmay file a
445	complaint in the circuit court of the county in which the
446	enclosed indoor workplacesuch public placeis located to
447	require compliance.
448	(3) A person may request an exemption from ss. 386.205 and
449	386.206 by applying to the department or the division. The
450	department or the division may grant exemptions on a case-by-
451	case basis where it determines that substantial good faith
452	efforts have been made to comply or that emergency or
453	extraordinary circumstances exist.
454	(3)(4)All fine moneys collected pursuant to this section
455	shall be used by the department for children's medical services
456	programs pursuant to the provisions of part I of chapter 391.
457	Section 9. Section 386.208, Florida Statutes, is amended
458	to read:
459	386.208 Penalties.--Any person who violates s. 386.204
460	commits a noncriminal violation as definedprovided forin s.
461	775.08(3), punishable by a fine of not more than $100 for the
462	first violation and not more than $500 for each subsequent
463	violation. Jurisdiction shall be with the appropriate county
464	court.
465	Section 10. Section 386.209, Florida Statutes, is
466	reenacted to read:
467	386.209 Regulation of smoking preempted to state.--This
468	part expressly preempts regulation of smoking to the state and
469	supersedes any municipal or county ordinance on the subject.
470	Section 11. Section 386.211, Florida Statutes, is amended
471	to read:
472	386.211 Public announcements in mass transportation
473	terminals.--Announcements about the Florida Clean Indoor Air Act
474	shall be made regularly over public address systems in terminals
475	of public transportation carriers located in metropolitan
476	statistical areas with populations over 230,000 according to the
477	latest census. These announcements shall be made at least every
478	30 minutes and shall be made in appropriate languages. Each
479	announcement mustshallinclude a statement to the effect that
480	Florida is a clean indoor air state and that smoking is not
481	allowed except as provided in this partonly in designated
482	areas.
483	Section 12. Section 386.212, Florida Statutes, is
484	reenacted and amended to read:
485	386.212 Smoking prohibited near school property;
486	penalty.--
487	(1) It is unlawful for any person under 18 years of age to
488	smoke tobacco in, on, or within 1,000 feet of the real property
489	comprising a public or private elementary, middle, or secondary
490	school between the hours of 6 a.m. and midnight. This section
491	doesshallnot apply to any person occupying a moving vehicle or
492	within a private residence.
493	(2) A law enforcement officer may issue a citation in such
494	form as prescribed by a county or municipality to any person
495	violating the provisions of this section. Any such citation must
496	contain:
497	(a) The date and time of issuance.
498	(b) The name and address of the person cited.
499	(c) The date and time the civil infraction was committed.
500	(d) The statute violated.
501	(e) The facts constituting the violation.
502	(f) The name and authority of the law enforcement officer.
503	(g) The procedure for the person to follow to pay the
504	civil penalty, to contest the citation, or to appear in court.
505	(h) The applicable civil penalty if the person elects not
506	to contest the citation.
507	(i) The applicable civil penalty if the person elects to
508	contest the citation.
509	(3) Any person issued a citation pursuant to this section
510	shall be deemed to be charged with a civil infraction punishable
511	by a maximum civil penalty not to exceed $25, or 50 hours of
512	community service or, where available, successful completion of
513	a school-approved anti-tobacco "alternative to suspension"
514	program.
515	(4) Any person who fails to comply with the directions on
516	the citation shall be deemed to waive his or her right to
517	contest the citation and an order to show cause may be issued by
518	the court.
519	Section 13. Section 386.2125, Florida Statutes, is created
520	to read:
521	386.2125 Rulemaking.--The department and the Department of
522	Business and Professional Regulation, shall, in consultation
523	with the State Fire Marshal, have the authority to adopt rules
524	pursuant to ss. 120.536(1) and 120.54 to implement the
525	provisions of this part within each agency’s specific areas of
526	regulatory authority. Whenever assessing a smoking cessation
527	program for approval, the department shall consider whether the
528	smoking cessation program limits to the extent possible the
529	potential for exposure to second-hand tobacco smoke, if any, to
530	nonparticipants in the enclosed indoor workplace.
531	Section 14. Section 561.695, Florida Statutes, is created
532	to read:
533	561.695 Stand-alone bar enforcement; qualification;
534	penalties.--
535	(1) The division shall designate as a stand-alone bar the
536	licensed premises of a vendor that operates a business that
537	meets the definition of a stand-alone bar in s. 386.203(11) upon
538	receipt of the vendor's election to permit tobacco smoking in
539	the licensed premises.
540	(2) Upon this act becoming a law and until the annual
541	renewal of a vendor’s license, a licensed vendor who makes the
542	required election under subsection (1) may permit tobacco
543	smoking on the licensed premises and must post a notice of such
544	intention at the same location at which the vendor’s current
545	alcoholic beverage license is posted. The notice shall affirm
546	the vendor’s intent to comply with the conditions and
547	qualifications of a stand-alone bar imposed pursuant to part II
548	of chapter 386 and the Beverage Law.
549	(3) Only the licensed vendor may provide or serve food on
550	the licensed premises of a stand-alone bar. Other than
551	customary bar snacks as defined by rule of the division, the
552	licensed vendor may not provide or serve food to a person on the
553	licensed premises without requiring the person to pay a
554	separately stated charge for the food that reasonably
555	approximates the retail value of the food.
556	(4) A licensed vendor operating a stand-alone bar must
557	conspicuously post signs at each entrance to the establishment
558	stating that smoking is permitted in the establishment. The
559	color and design of such signs shall be left to the discretion
560	of the person in charge of the premises.
561	(5) After the initial designation, to continue to qualify
562	as a stand-alone bar the licensee must provide to the division
563	annually, on or before the licensee’s annual renewal date, an
564	affidavit that certifies, with respect to the preceding 12-month
565	period, the following:
566	(a) No more than 10 percent of the gross revenue of the
567	business is from the sale of food consumed on the licensed
568	premises as defined in s. 386.203(11).
569	(b) Other than customary bar snacks as defined by rule of
570	the division, the licensed vendor does not provide or serve food
571	to a person on the licensed premises without requiring the
572	person to pay a separately stated charge for food that
573	reasonably approximates the retail value of the food.
574	(c) The licensed vendor conspicuously posts signs at each
575	entrance to the establishment stating that smoking is permitted
576	in the establishment.
577
578	The division shall establish by rule the format of the affidavit
579	required by this subsection.
580	(6) Every third year after the initial designation, on or
581	before the licensee’s annual license renewal, the licensed
582	vendor must additionally provide to the division an agreed upon
583	procedures report in a format established by rule of the
584	department from a Florida certified public accountant that
585	attests to the licensee's compliance with the percentage
586	requirement of s. 386.203(11) for the preceding 36-month period.
587	Such report shall be admissible in any proceeding pursuant to s.
588	120.57. This subsection does not apply to a stand-alone bar if
589	the only food provided by the business, or in any other way
590	present or brought onto the premises for consumption by patrons,
591	is limited to nonperishable snack food items commercially
592	prepackaged off the premises of the stand-alone bar and served
593	without additions or preparation; except that a stand-alone bar
594	may pop popcorn for consumption on its premises, provided that
595	the equipment used to pop the popcorn is not used to prepare any
596	other food for patrons.
597	(7) The Division of Alcoholic Beverages and Tobacco shall
598	have the power to enforce the provisions of part II of chapter
599	386 and to audit a licensed vendor that operates a business that
600	meets the definition of a stand-alone bar as provided in s.
601	386.203(11) for compliance with this section.
602	(8) Any vendor that operates a business that meets the
603	definition of a stand-alone bar as provided in s. 386.203(11)
604	who violates the provisions of this section or part II of
605	chapter 386 shall be subject to the following penalties:
606	(a) For the first violation, the vendor shall be subject
607	to a warning or a fine of up to $500, or both;
608	(b) For the second violation within 2 years after the
609	first violation, the vendor shall be subject to a fine of not
610	less than $500 or more than $2,000;
611	(c) For the third or subsequent violation within 2 years
612	after the first violation, the vendor shall receive a suspension
613	of the right to maintain a stand-alone bar in which tobacco
614	smoking is permitted, not to exceed 30 days, and shall be
615	subject to a fine of not less than $500 or more than $2,000; and
616	(d) For the fourth or subsequent violation, the vendor
617	shall receive a 60-day suspension of the right to maintain a
618	stand-alone bar in which tobacco smoking is permitted and shall
619	be subject to a fine of not less than $500 or more than $2,000
620	or revocation of the right to maintain a stand-alone bar in
621	which tobacco smoking is permitted.
622	(9) The division shall adopt rules governing the
623	designation process, criteria for qualification, required
624	recordkeeping, auditing, and all other rules necessary for the
625	effective enforcement and administration of this section and
626	part II of chapter 386. The division is authorized to adopt
627	emergency rules pursuant to s. 120.54(4) to implement the
628	provisions of this section.
629	Section 15. If any provision of this act or the
630	application thereof to any person or circumstance is held
631	invalid, the invalidity shall not affect other provisions or
632	applications of the act which can be given effect without the
633	invalid provision or application, and to this end the provisions
634	of this act are declared severable.
635	Section 16. If any law amended by this act was also
636	amended by a law enacted at the 2003 Regular Session of the
637	Legislature, such laws shall be construed as if they had been
638	enacted during the same session of the Legislature, and full
639	effect shall be given to each if possible.
640	Section 17. This act shall take effect July 1, 2003.