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Florida Non-Smoking Amendment

The Florida Legislature passed House Bill 63A on May 27, 2003 in order to implement the constitutional amendment passed by voters.  Governor Bush signed the legislation on June 23, 2003. The amendment passed was a workplace non-smoking amendment, not a restaurant non-smoking amendment. The only language in the constitutional amendment addressing restaurants was the provision that exempted stand-alone bars as places where food is only "incidental" to the serving of alcohol. The Florida legislature chose to define "incidental" as food sales accounting for less than 10% of the total sales of the bar. Any establishment that allows indoor smoking is therefore a bar and not eligible for listing on this web site.

Smoking complaints may be filed online.

Licensees may make their election as a smoking stand-alone bar by visiting www.myfloridalicense.com logging on under “Maintain Account,” and selecting “ADD” in the information block pertaining to their retail beverage license. Licensees may also make their election by calling DBPR's Customer Contact Center at 850-487-1395 or by printing the form and instructions, and submitting them to the Tallahassee central office or their local AB&T district office.

Bars must display a Smoking Permitted sign on each entrance. For those restaurants wishing to display "No Smoking" signs we have prepared a few you can download and print. All three will print two up on 8˝ x 11 plain paper or card stock.

  1. No Smoking with a solid border
  2. No Smoking with a dashed border
  3. No Smoking with a musical notes border

The constitutional amendment had language defining stand alone bars as places where food is only "incidental" to the serving of alcohol. The Florida Legislature chose to define incidental as meaning where food accounts for less than 10% of the total sales. If you're wondering what is a stand alone bar:

  1. Stand-alone bars, subject to the following rules and definitions:
    Any licensed premises devoted during any time of operation predominantly or totally to serving alcoholic beverages, intoxicating beverages, or intoxicating liquors, or combination thereof, in which the serving of food, if any, is merely incidental
  2. No more than 10 percent of gross revenues may be derived from the sale of food consumed on the licensed premises
  3. The 10-percent rule does not apply to food provided by the business if limited to popcorn or nonperishable snack items commercially prepackaged off the premises.
  4. Not located within, and not sharing any common entryway or common indoor area with, any other enclosed workplace, such as a hallway, concourse or lobby.
  5. Must file election to permit smoking.
  6. Upon filing election, Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation must designate it as a stand-alone bar.
  7. Only the licensed vendor may provide food on the licensed premises. Other than customary snacks as defined by rule of the Division, the licensed vendor may not provide or serve food to a person on the licensed premises without requiring the person to pay a separately stated charge for the food that reasonably approximates the retail value of the food.
  8. After initial designation, to continue to qualify as a stand-alone bar the licensee must annually provide to the Division an affidavit that certifies compliance with the provisions for stand-alone bar designation.
  9. Every third year after the initial designation, the licensed vendor must additionally provide a report from a certified public accountant that attests to the licensee’s compliance with the percentage requirement, separately stated food charges, and signage for the preceding 36-months.

Non-smoking Amendment

WHEREAS, second-hand tobacco smoke is a known human carcinogen (contains cancer-causing agents) for which there is no safe level of exposure, and causes death and disease; WHEREAS, exposure to second-hand tobacco smoke frequently occurs in the workplace; and WHEREAS, ventilation and filtration systems do not remove the cancer-causing substances from second-hand smoke; NOW, THEREFORE, to protect people from the health hazards of second-hand tobacco smoke, the citizens of Florida hereby amend Article X of the Florida Constitution to add the following as section 20:

SECTION 20. Workplaces Without Tobacco Smoke.-

(a) Prohibition. As a Florida health initiative to protect people from the health hazards of second-hand tobacco smoke, tobacco smoking is prohibited in enclosed indoor workplaces.

(b) Exceptions. As further explained in the definitions below, tobacco smoking may be permitted in private residences whenever they are not being used commercially to provide child care, adult care, or health care, or any combination thereof; and further may be permitted in retail tobacco shops, designated smoking guest rooms at hotels and other public lodging establishments; and stand-alone bars. However, nothing in this section or in its implementing legislation or regulations shall prohibit the owner, lessee, or other person in control of the use of an enclosed indoor workplace from further prohibiting or limiting smoking therein.

(c) Definitions. For purposes of this section, the following words and terms shall have the stated meanings:

"Smoking" means inhaling, exhaling, burning, carrying, or possessing any lighted tobacco product, including cigarettes, cigars, pipe tobacco, and any other lighted tobacco product.

"Second-hand smoke," also known as environmental tobacco smoke (ETS), means smoke emitted from lighted, smoldering, or burning tobacco when the smoker is not inhaling; smoke emitted at the mouthpiece during puff drawing; and smoke exhaled by the smoker.

"Work" means any person’s providing any employment or employment-type service for or at the request of another individual or individuals or any public or private entity, whether for compensation or not, whether full or part-time, whether legally or not. "Work" includes, without limitation, any such service performed by an employee, independent contractor, agent, partner, proprietor, manager, officer, director, apprentice, trainee, associate, servant, volunteer, and the like.

"Enclosed indoor workplace" means any place where one or more persons engages in work, and which place is predominantly or totally bounded on all sides and above by physical barriers, regardless of whether such barriers consist of or include uncovered openings, screened or otherwise partially covered openings; or open or closed windows, jalousies, doors, or the like. This section applies to all such enclosed indoor workplaces without regard to whether work is occurring at any given time.

"Commercial" use of a private residence means any time during which the owner, lessee, or other person occupying or controlling the use of the private residence is furnishing in the private residence, or causing or allowing to be furnished in the private residence, child care, adult care, or health care, or any combination thereof, and receiving or expecting to receive compensation therefor.

"Retail tobacco shop" means any enclosed indoor workplace dedicated to or predominantly for the retail sale of tobacco, tobacco products, and accessories for such products, in which the sale of other products or services is merely incidental.

"Designated smoking guest rooms at public lodging establishments" means the sleeping rooms and directly associated private areas, such as bathrooms, living rooms, and kitchen areas, if any, rented to guests for their exclusive transient occupancy in public lodging establishments including hotels, motels, resort condominiums, transient apartments, transient lodging establishments, rooming houses, boarding houses, resort dwellings, bed and breakfast inns, and the like; and designated by the person or persons having management authority over such public lodging establishment as rooms in which smoking may be permitted.

"Stand-alone bar" means any place of business devoted during any time of operation predominantly or totally to serving alcoholic beverages, intoxicating beverages, or intoxicating liquors, or any combination thereof, for consumption on the licensed premises; in which the serving of food, if any, is merely incidental to the consumption of any such beverage; and that is not located within, and does not share any common entryway or common indoor area with, any other enclosed indoor workplace including any business for which the sale of food or any other product or service is more than an incidental source of gross revenue.

(d) Legislation. In the next regular legislative session occurring after voter approval of this amendment, the Florida Legislature shall adopt legislation to implement this amendment in a manner consistent with its broad purpose and stated terms, and having an effective date no later than July 1 of the year following voter approval. Such legislation shall include, without limitation, civil penalties for violations of this section; provisions for administrative enforcement; and the requirement and authorization of agency rules for implementation and enforcement. Nothing herein shall preclude the Legislature from enacting any law constituting or allowing a more restrictive regulation of tobacco smoking than is provided in this section.

 

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