Florida’s legislature this year passed a controversial no-smoking bill covering workplaces and eating establishments. But, it created as many questions as it answered, and Realtors selling affected establishments may need to know what can and can’t be done.
The Florida Department of Business and Professional Regulation, which will have to regulate many aspects of the law, provided this to answer some common questions regarding the newly enacted amendment to Florida’s enclosed indoor workplace smoking ban.
They do add a caveat: “While due care has been exercised to assure the accuracy of this information, the actual statute and administrative rules supersede this information.”
1. What Florida law bans smoking in enclosed indoor workplaces?
The following sections of Florida law as amended by the 2003 Legislature: Chapter 386, Part II, Florida Statutes, “the Florida Clean Indoor Air Act,” Chapter 561, Florida Statutes; and the following sections of Florida Administrative Code as recently adopted: 61AER03-1.
2. When does the new ban on enclosed indoor workplace smoking begin?
It started July 1.
3. Where will smoking be allowed after the ban goes into effect?
The law provides that smoking may be allowed in the following places:
• Private residences not being used commercially for childcare, adult care, or a combination.
• Retail tobacco shops.
• Hotel guest rooms designated as smoking rooms.
• Smoking cessation programs.
• Medical or scientific research.
• “In-transit” airport smoking lounges under control of U.S. Customs and Border Protection.
• Stand-alone bars (see below.)
• Outdoor patios (see below.)
• Membership association [See 386.213(13)] facilities used exclusively for non-commercial activity if no person is engaged in work [See 386.213(12).]
4. Who will enforce the
smoking ban?
Those in violation of the law after July 1 will be subject to enforcement action by the Division of Hotels & Restaurants or the Division of Alcoholic Beverages & Tobacco if licensed by the Department of Business and Professional Regulation (DBPR), or the Florida Department of Health if any other indoor workplace as a result of a complaint.
5. How will complaints be filed?
If the establishment is a Department of Business and Professional Regulation licensee, provide the complaint information to the department:
• On the department’s web site at www.state.fl.us/dbpr.
• By contacting the department’s Customer Contact Center at 850.487.1395.
• By mailing directly to the Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee 32399-1021.
For all other enclosed workplaces, call the Florida Department of Health at: 1-800-337-3712.
6. What happens if there is a complaint about smoking in my establishment?
The department will review all complaints regarding violations alleged at a licensed premises. If the complaint is substantiated, the department may take enforcement action including monetary penalties.
7. What are the penalties for violating the ban?
The penalties are:
• First violation: warning or a fine of up to $500, or both.
• Second violation: if within 2 years of the first violation, a fine of not less than $500 or more than $2000.
• Third violation: if within 2 years of the first violation, a suspension of the smoking designation not to exceed 30 days and a fine of not less than $500 or more than $2000.
• Fourth and subsequent violations: 60-day suspension of smoking designation and a fine of not less than $500 or more than $2000, or revocation of smoking designation.
8. What responsibility does the business have?
The proprietor or other person in charge of an enclosed indoor workplace must develop and implement a policy regarding the smoking prohibitions established in law. The policy may include, but is not limited to, procedures to be taken when the proprietor or other person in charge witnesses or is made aware of a violation of the law in the enclosed indoor workplace and must include a policy which prohibits an employee from smoking in the enclosed indoor workplace.
9. If a customer refuses to stop smoking in an enclosed indoor workplace, what should the owner or operator do?
As with any action that is unlawful, the establishment may seek assistance from local law enforcement.
10. What is a “stand-alone bar?”
Florida Statute defines “stand-alone bar” as “any licensed premises 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 the licensed premises 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. A place of business constitutes a stand-alone bar in which the service of food is merely incidental in accordance with this subsection if the licensed premises derives no more than 10 percent of its gross revenue from the sale of food consumed on the licensed premises.”
“Stand-alone bar” is the designation given to those licensed premises that operate a business that meets the definition of a stand-alone bar in s. 386.203(11), Florida Statutes, if the only food provided is limited to “nonperishable snack food items.”
“Stand-alone bar with food” is the designation given to those licensed premises that operate a business meeting the definition of a stand-alone bar in s. 386.203(11), Florida Statutes, in which the serving of food is merely incidental and the licensed premises derives no more than 10 percent of its gross revenue from the sale of food consumed on the licensed premises.
11. How does an establishment become a stand-alone bar?
To qualify, an establishment with an active alcoholic beverage license permitting consumption on the premises must notify the division of its intent to allow smoking.
This is done by filing Form DBPR ABT-6039 “Notification of Election to Permit Tobacco Smoking in the Licensed Premises” with the Division of Alcoholic Beverages and Tobacco, and can be done:
• On the department’s web site at www.state.fl.us/dbpr.
• By contacting the department’s Customer Contact Center at 850.487.1395.
• By submitting the form in person at any Division of Alcoholic Beverages and Tobacco office.
• Or by mailing directly to the Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee 32399-1021.
12. Is there a fee to become a stand-alone bar?
There is no fee to add this designation to your alcoholic beverage license.
13. Can an establishment make physical changes to qualify as a stand-alone bar?
Before making changes, an operator should first rely on sections 386.203(5) and 386.203(11), Florida Statutes, and should consider consulting an attorney.
14. What are the conditions or restrictions for a stand-alone bar to allow smoking?
No more than 10 percent of the gross revenue of the business may be derived from the retail sale of food consumed on the licensed premises.
15. May free food, such as a “happy hour buffet,” be offered at an establishment with a smoking designation?
Only customary bar snacks may be given away. All other food must be paid for by a patron at a charge that reasonably approximates the retail value of the food. All food paid for by patrons must be reported in the establishment’s food sales.
16. May a stand-alone bar with a smoking designation engage a caterer to provide food?
A caterer may deliver food to the stand-alone bar. However, only the licensed operator may provide or serve food on the licensed premises. Any establishment that provides or serves food other than customary bar snacks must first acquire a public food service license from the Division of Hotels and Restaurants.
17. What are bar snacks?
“Customary bar snack” means popcorn and any ready-to-eat food item, commercially prepared and packaged off the premises, served without addition or preparation, that is not a potentially hazardous food. The definition of potentially hazardous food, provided in subparagraph 1-201.10(B)(61), Food Code, 1999 Recommendations of the United States Public Health Service/Food and Drug Administration, incorporated herein by reference, shall apply to Chapter 61AER03-1, F.A.C.
Customary bar snacks include:
• Pre-packaged or bulk items: chips (potato, plantain, yucca, etc.), pretzels, nuts, crackers, trail mix, party mix, and pork rinds, and the like.
• Pickled items: eggs, pickles, pigs feet and sausages.
The above may be provided without charge, but may also be provided for sale. If a charge is made it must be included in the establishment’s food sales.
18. What is an outdoor patio?
An outdoor patio is a place NOT predominantly or totally bounded all sides and above by physical barriers regardless of whether such barriers consist of or include, without limitation, uncovered openings, screened or otherwise partially covered openings, or open or closed windows, jalousies, doors or the like.
A place is “predominantly” bounded by physical barriers anytime BOTH of the following conditions exist:
• It is more than 50 percent covered from above by a physical barrier that excludes rain.
• More than 50 percent of the combined surface area of its sides is covered by closed physical barriers. [See section 386.203(5), Florida Statutes]
19. If a licensed premises, either a stand-alone bar or a food service establishment, serves food in an outside seating area, is smoking permitted there?
Yes. However, if the area is more than 50 percent covered from above by a physical barrier that excludes rain, and more than 50 percent of the combined surface area of its sides is covered by closed physical barriers, smoking is not permitted in the area.
20. Can I allow my customers to bring food onto my licensed premises if I have a stand-alone bar with a smoking designation?
No. All food consumed on the licensed premises must be provided by the licensed operator.
21. Is there a requirement for certain signs?
Yes. For stand-alone bars with smoking designation, signs stating that smoking is permitted must be posted in a conspicuous place at each and every entrance to the establishment. It is left to the establishment’s discretion to determine the color and design of the signs to be posted.
Additionally, after the licensee notifies the Division of Alcoholic Beverages & Tobacco of the election to operate as a stand-alone bar, the licensee must post a notice of such intention in the same place the operator’s current alcoholic beverage license is posted. The notice shall affirm the operator’s intent to comply with the conditions and qualifications of a stand-alone bar imposed pursuant to Part II of Chapter 386 and the Beverage Law.
Enclosed indoor workplaces, where smoking was not allowed prior to this legislation, must continue to conspicuously post a sign that smoking is not allowed within the enclosed indoor workplace. This requirement will expire on July 1, 2005.
While smoking is allowed in designated smoking guest rooms at public lodging establishments, no sign requirement is currently in the law.
For all other enclosed indoor workplaces, in order to increase public awareness, the proprietor may, at his or her discretion, post “No Smoking” signs.
22. Is there a record-keeping requirement related to the smoking designation?
Stand-alone bars with the smoking designation that serve food beyond customary bar snacks must keep certain records to continue to allow smoking.
These records include, but are not limited to: purchase invoices, sales tickets, inventory records, receiving records, cash register journal tapes, on premises food sales records, computer records generated from automatic dispensing devices, and any other record documenting or evidencing sales.
Records of all purchases and gross retail sales of food consumed on premises must be separately documented.
Department of Revenue Sales Tax Returns are acceptable as a record of total sales revenue. All required records must be maintained on the premises, or a designated place approved in writing by the Division of Alcoholic Beverages and Tobacco for a period of 3 years and provided within 14 days of a request by the division. The required records must be legible, clear, and in the English language.
23. What is required for stand-alone bars to keep or renew their smoking designation?
To maintain its smoking designation, the establishment must file the following with the Division of Alcoholic Beverages & Tobacco:
• At the first renewal of the beverage license that occurs at least 12 months after the initial smoking designation, the licensee must file an affidavit verifying that food sales for the preceeding 12 months did not exceed 10 percent of the gross revenue of the business.
• A “3-year Procedures Report” must be filed with the Division of Alcoholic Beverages and Tobacco attesting to compliance with the food sales percentage requirement. The report must be filed every third year after initial designation, must cover the preceding 36-month period, and be provided on or before the licensee’s annual beverage license renewal. It must be prepared by a Florida certified public accountant based upon verifiable and substantiated records provided by the licensee.
Failure to file the required documents or reports will result in loss of the smoking designation and smoking will not be allowed on the premises.
24. Can I be audited if my establishment has a smoking designation?
Yes. The department shall have access and the right to examine all records and source documents used to determine compliance with this rule. Licensees must give the department the means, facilities, and opportunity to verify the accuracy of these records.
25. How does an establishment change its stand-alone bar designation?
To change this status, the licensee must simply notify the division of its desire to cancel its designation as a stand-alone bar.
26. Who do I contact for more information?
For more information regarding enforcement for premises licensed by DBPR please contact:
The Florida Department of Business and Professional Regulation
1940 North Monroe Street
Tallahassee32399
Phone: 850-487-1395
Email: [email protected]
Internet: www.state.fl.us/dbpr
For more information regarding all other enclosed workplaces or the Florida Clean Indoor Act please call the Florida Department of Health at 1-800-337-3712.