HB 1297CS

CHAMBER ACTION



1The Commerce Council recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
6
A bill to be entitled
7An act relating to indoor smoking places; amending s.
8386.203, F.S.; defining the term "person" for purposes of
9the act; redefining the term "stand-alone bar" to include
10a licensed premises that derives no more than a specified
11amount of gross revenue from the sale of food consumed on
12the licensed premises and that is located in a building
13individually listed in the National Register of Historic
14Places; providing that an application for historic
15designation must be submitted within a specified period of
16time; amending s. 386.204, F.S.; eliminating certain
17exceptions to the prohibition against smoking in an
18enclosed indoor workplace; prohibiting a proprietor or
19person in charge of an enclosed indoor workplace from
20permitting smoking in that workplace; requiring that a
21proprietor or person in charge of an enclosed indoor
22workplace request a person who is smoking to stop smoking
23or leave the premises; providing penalties; amending s.
24386.2045, F.S.; conforming cross references; amending s.
25386.205, F.S.; conforming a cross reference; amending s.
26386.206, F.S.; deleting certain provisions made obsolete
27by operation of law which require the posting of signs in
28an enclosed indoor workplace; amending s. 386.208, F.S.;
29authorizing a law enforcement officer to issue a citation
30to a person who violates the Florida Clean Indoor Air Act;
31providing requirements for the citation; providing that
32failure to comply with a citation is deemed a waiver of
33the right to contest the citation; authorizing a law
34enforcement officer to remove a person from the premises
35who is in violation of the Florida Clean Indoor Air Act;
36providing that penalties imposed under the act do not
37limit other actions by a law enforcement officer or state
38agency; amending s. 561.695, F.S.; conforming provisions
39with respect to continued qualification as a stand-alone
40bar; conforming cross references; providing a penalty for
41a licensee who knowingly makes a false statement on an
42annual compliance affidavit; eliminating provisions
43requiring a stand-alone bar to certify to the Division of
44Alcoholic Beverages and Tobacco of the Department of
45Business and Professional Regulation compliance with
46certain provisions of the Florida Clean Indoor Air Act;
47providing additional penalties for a third or subsequent
48violation within 2 years after a first violation of
49requirements applicable to a stand-alone bar, and for a
50fourth or subsequent violation; providing an effective
51date.
52
53Be It Enacted by the Legislature of the State of Florida:
54
55     Section 1.  Subsection (5) and present subsection (11) of
56section 386.203, Florida Statutes, are amended, present
57subsections (6) through (13) of said section are redesignated as
58subsections (7) through (14), respectively, and a new subsection
59(6) is added to that section, to read:
60     386.203  Definitions.--As used in this part:
61     (5)(a)  "Enclosed indoor workplace" means any place where
62one or more persons engages in work, and which place is
63predominantly or totally bounded on all sides and above by
64physical barriers, regardless of whether such barriers consist
65of or include, without limitation, uncovered openings; screened
66or otherwise partially covered openings; or open or closed
67windows, jalousies, doors, or the like. A place is
68"predominantly" bounded by physical barriers during any time
69when both of the following conditions exist:
70     1.(a)  It is more than 50 percent covered from above by a
71physical barrier that excludes rain;, and
72     2.(b)  More than 50 percent of the combined surface area of
73its sides is covered by closed physical barriers. In calculating
74the percentage of side surface area covered by closed physical
75barriers, all solid surfaces that block air flow, except
76railings, must be considered as closed physical barriers. This
77section applies to all such enclosed indoor workplaces and
78enclosed parts thereof without regard to whether work is
79occurring at any given time.
80     (b)(c)  The term does not include any facility owned or
81leased by and used exclusively for noncommercial activities
82performed by the members and guests of a membership association,
83including social gatherings, meetings, dining, and dances, if no
84person or persons are engaged in work as defined in subsection
85(13)(12).
86     (6)  "Person" has the same meaning as in s. 1.01(3).
87     (12)(11)  "Stand-alone bar" means any licensed premises
88devoted during any time of operation predominantly or totally to
89serving alcoholic beverages, intoxicating beverages, or
90intoxicating liquors, or any combination thereof, for
91consumption on the licensed premises; in which the serving of
92food, if any, is merely incidental to the consumption of any
93such beverage; and the licensed premises is not located within,
94and does not share any common entryway or common indoor area
95with, any other enclosed indoor workplace, including any
96business for which the sale of food or any other product or
97service is more than an incidental source of gross revenue. A
98place of business constitutes a stand-alone bar in which the
99service of food is merely incidental in accordance with this
100subsection if the licensed premises derives no more than 10
101percent of its gross revenue from the sale of food consumed on
102the licensed premises. However, a place of business remains a
103stand-alone bar in which the service of food is merely
104incidental if the licensed premises derives no more than 20
105percent of its gross revenue from the sale of food consumed on
106the licensed premises and the licensed premises is located in a
107building that is individually listed in the National Register of
108Historic Places as defined in s. 267.021. An application to
109individually list the building in the National Register of
110Historic Places must have been submitted to the Florida
111Department of State on or before 90 days after the effective
112date of this act.
113     Section 2.  Section 386.204, Florida Statutes, is amended
114to read:
115     386.204  Prohibition.--
116     (1)  A person may not smoke in an enclosed indoor
117workplace, except as otherwise provided in s. 386.2045.
118     (2)  A proprietor or other person in charge of an enclosed
119indoor workplace may not permit smoking in that enclosed indoor
120workplace. If the proprietor or other person in charge of an
121enclosed indoor workplace observes smoking in that workplace or
122has been notified of observed smoking in that workplace in
123violation of this part, the proprietor or other person in charge
124of the enclosed indoor workplace shall request the violator to
125stop smoking and, if the violator does not comply, the
126proprietor or other person in charge of the enclosed indoor
127workplace shall require the violator to leave the premises. A
128proprietor or other person in charge of an enclosed indoor
129workplace who fails to comply with this subsection is subject to
130the procedures and penalties prescribed in ss. 386.207 and
131561.695, as applicable.
132     Section 3.  Subsections (2) and (4) of section 386.2045,
133Florida Statutes, are amended to read:
134     386.2045  Enclosed indoor workplaces; specific
135exceptions.--Notwithstanding s. 386.204, tobacco smoking may be
136permitted in each of the following places:
137     (2)  RETAIL TOBACCO SHOP.--An enclosed indoor workplace
138dedicated to or predominantly for the retail sale of tobacco,
139tobacco products, and accessories for such products, as defined
140in s. 386.203(9) s. 386.203(8).
141     (4)  STAND-ALONE BAR.--A business that meets the definition
142of a stand-alone bar as defined in s. 386.203(12) s. 386.203(11)
143and that otherwise complies with all applicable provisions of
144the Beverage Law and this part.
145     Section 4.  Subsection (1) of section 386.205, Florida
146Statutes, is amended to read:
147     386.205  Customs smoking rooms.--A customs smoking room may
148be designated by the person in charge of an airport in-transit
149lounge under the authority and control of the Bureau of Customs
150and Border Protection of the United States Department of
151Homeland Security. A customs smoking room may only be designated
152in an airport in-transit lounge under the authority and control
153of the Bureau of Customs and Border Protection of the United
154States Department of Homeland Security. A customs smoking room
155may not be designated in an elevator, restroom, or any common
156area as defined by s. 386.203. Each customs smoking room must
157conform to the following requirements:
158     (1)  Work, other than essential services defined in s.
159386.203(7) s. 386.203(6), must not be performed in the room at
160any given time.
161     Section 5.  Section 386.206, Florida Statutes, is amended
162to read:
163     386.206  Posting of signs; requiring policies.--
164     (1)  The person in charge of an enclosed indoor workplace
165that prior to adoption of s. 20, Art. X of the State
166Constitution was required to post signs under the requirements
167of this section must continue to conspicuously post, or cause to
168be posted, signs stating that smoking is not permitted in the
169enclosed indoor workplace. Each sign posted pursuant to this
170section must have letters of reasonable size which can be easily
171read. The color, design, and precise place of posting of such
172signs shall be left to the discretion of the person in charge of
173the premises.
174     (1)(2)  The proprietor or other person in charge of an
175enclosed indoor workplace must develop and implement a policy
176regarding the smoking prohibitions established in this part. The
177policy may include, but is not limited to, procedures to be
178taken when the proprietor or other person in charge witnesses or
179is made aware of a violation of s. 386.204 in the enclosed
180indoor workplace and must include a policy which prohibits an
181employee from smoking in the enclosed indoor workplace. In order
182to increase public awareness, the person in charge of an
183enclosed indoor workplace may, at his or her discretion, post
184"NO SMOKING" signs as deemed appropriate.
185     (2)(3)  The person in charge of an airport terminal that
186includes a designated customs smoking room must conspicuously
187post, or cause to be posted, signs stating that no smoking is
188permitted except in the designated customs smoking room located
189in the customs area of the airport. Each sign posted pursuant to
190this section must have letters of reasonable size that can be
191easily read. The color, design, and precise locations at which
192such signs are posted shall be left to the discretion of the
193person in charge of the premises.
194     (3)(4)  The proprietor or other person in charge of an
195enclosed indoor workplace where a smoking cessation program,
196medical research, or scientific research is conducted or
197performed must conspicuously post, or cause to be posted, signs
198stating that smoking is permitted for such purposes in
199designated areas in the enclosed indoor workplace. Each sign
200posted pursuant to this section must have letters of reasonable
201size which can be easily read. The color, design, and precise
202locations at which such signs are posted shall be left to the
203discretion of the person in charge of the premises.
204     (5)  The provisions of subsection (1) shall expire on July
2051, 2005.
206     Section 6.  Section 386.208, Florida Statutes, is amended
207to read:
208     386.208  Penalties.--
209     (1)  Any person who violates s. 386.204 commits a
210noncriminal violation as defined in s. 775.08(3), punishable by
211a fine of not more than $100 for the first violation and not
212more than $500 for each subsequent violation. Jurisdiction shall
213be with the appropriate county court.
214     (2)  A law enforcement officer may issue a citation in such
215form as prescribed by a county or municipality to any person who
216violates the provisions of this part. Any such citation must
217contain:
218     (a)  The date and time of issuance.
219     (b)  The name and address of the person cited.
220     (c)  The date and time the civil infraction was committed.
221     (d)  The statute violated.
222     (e)  The facts constituting the violation.
223     (f)  The name and authority of the law enforcement officer.
224     (g)  The procedure for the person to follow in order to pay
225the fine, contest the citation, or appear in court.
226     (h)  The applicable range of the fine for the violation,
227which may not be more than $100 for a first violation and not
228more than $500 for each subsequent violation.
229     (3)  Any person who fails to comply with the directions of
230the citation shall be deemed to have waived his or her right to
231contest the citation and the court may issue an order to show
232cause.
233     (4)  If a person who violates s. 386.204, or any provision
234of this part, refuses to comply with the request of the
235proprietor or other person in charge of an enclosed indoor
236workplace to stop smoking or otherwise comply with the
237provisions of this part, a law enforcement officer may remove
238the violator from the premises.
239     (5)  This section does not limit any other action or remedy
240that is available to a proprietor or other person in charge of
241an enclosed indoor workplace and does not limit the authority of
242a law enforcement officer, the department, or the Division of
243Hotels and Restaurants and the Division of Alcoholic Beverages
244and Tobacco of the Department of Business and Professional
245Regulation to enforce the provisions of this part or any other
246rule, law, or ordinance.
247     Section 7.  Subsections (1), (5), (6), (7), and (8) of
248section 561.695, Florida Statutes, are amended to read:
249     561.695  Stand-alone bar enforcement; qualification;
250penalties.--
251     (1)  The division shall designate as a stand-alone bar the
252licensed premises of a vendor that operates a business that
253meets the definition of a stand-alone bar in s. 386.203(12) s.
254386.203(11) upon receipt of the vendor's election to permit
255tobacco smoking in the licensed premises.
256     (5)  After the initial designation, to continue to qualify
257as a stand-alone bar the licensee must provide to the division
258annually, on or before the licensee's annual renewal date, an
259affidavit that certifies, with respect to the preceding 12-month
260period, the following:
261     (a)  No more than 10 percent of the gross revenue of the
262business is from the sale of food consumed on the licensed
263premises as defined in s. 386.203(12)(11) or, if such licensed
264premises is in a building that is individually listed in the
265National Register of Historic Places as defined in s. 267.021,
266no more than 20 percent of the gross revenue of the business is
267from the sale of food consumed on the licensed premises.
268However, an application to individually list the building in the
269National Register of Historic Places must have been submitted to
270the Florida Department of State on or before 90 days after the
271effective date of this act.
272     (b)  Other than customary bar snacks as defined by rule of
273the division, the licensed vendor does not provide or serve food
274to a person on the licensed premises without requiring the
275person to pay a separately stated charge for food that
276reasonably approximates the retail value of the food.
277     (c)  The licensed vendor conspicuously posts signs at each
278entrance to the establishment stating that smoking is permitted
279in the establishment.
280
281The division shall establish by rule the format of the affidavit
282required by this subsection. A vendor shall not knowingly make a
283false statement on the affidavit required by this subsection. In
284addition to the penalties provided in subsection (7), a person
285who knowingly makes a false statement on the affidavit required
286by this subsection may be subject to suspension or revocation of
287his or her alcoholic beverage license under s. 561.29.
288     (6)  Every third year after the initial designation, on or
289before the licensee's annual license renewal, the licensed
290vendor must additionally provide to the division an agreed upon
291procedures report in a format established by rule of the
292department from a Florida certified public accountant that
293attests to the licensee's compliance with the percentage
294requirement of s. 386.203(11) for the preceding 36-month period.
295Such report shall be admissible in any proceeding pursuant to s.
296120.57. This subsection does not apply to a stand-alone bar if
297the only food provided by the business, or in any other way
298present or brought onto the premises for consumption by patrons,
299is limited to nonperishable snack food items commercially
300prepackaged off the premises of the stand-alone bar and served
301without additions or preparation; except that a stand-alone bar
302may pop popcorn for consumption on its premises, provided that
303the equipment used to pop the popcorn is not used to prepare any
304other food for patrons.
305     (6)(7)  The Division of Alcoholic Beverages and Tobacco
306shall have the power to enforce the provisions of part II of
307chapter 386 and to audit a licensed vendor that operates a
308business that meets the definition of a stand-alone bar as
309provided in s. 386.203(12)(11) for compliance with this section.
310     (7)(8)  Any licensed vendor that operates a business that
311meets the definition of a stand-alone bar as provided in s.
312386.203(11) who violates the provisions of this section or part
313II of chapter 386 shall be subject to the following penalties:
314     (a)  For the first violation, the vendor shall be subject
315to a warning or a fine of up to $500, or both;
316     (b)  For the second violation within 2 years after the
317first violation, the vendor shall be subject to a fine of not
318less than $500 or more than $2,000;
319     (c)  For the third or subsequent violation within 2 years
320after the first violation, the vendor shall be subject to a fine
321of not less than $500 or more than $2,000, and any vendor that
322operates a business that meets the definition of a stand-alone
323bar as provided in s. 386.203(12) shall receive a suspension of
324the right to maintain a stand-alone bar in which tobacco smoking
325is permitted, not to exceed 30 days, and shall be subject to a
326fine of not less than $500 or more than $2,000; and
327     (d)  For the fourth or subsequent violation, the vendor
328shall be subject to a fine of not less than $500 or more than
329$2,000, and any vendor that operates a business that meets the
330definition of a stand-alone bar as provided in s. 386.203(12)
331shall receive a 60-day suspension of the right to maintain a
332stand-alone bar in which tobacco smoking is permitted and shall
333be subject to a fine of not less than $500 or more than $2,000
334or revocation of the right to maintain a stand-alone bar in
335which tobacco smoking is permitted.
336     Section 8.  This act shall take effect July 1, 2005.


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