It began as a New York City-style push to ban smoking in virtually every public place in New Jersey: bars, restaurants, museums, office buildings, ballparks.
But that was before the casinos, restaurant operators, bar owners, cigarette makers and their lobbyists showed up in force.
To Quote ex NJ Gov. Tom Kean:
"New Jersey and You. PUFFect together"
As a non-smoker I am tired of being called stupid by these smoking-nazi nanny-government controllers. I am old enough and intelligent enough to avoid smoke if I choose if I am that concerened about my health. I don't need the government to infringe on the rights of people who decide to invest their time and money into an establishment to decide for themselves what otherwise perfectly legal actvity they allow in a phony attempt to protect me. If I am that worried, I won't play in traffic or go to smoking restaurants. If I'm not that worried, repect my damn rights to make the decision on my own, and the ownwers rights to do the same!
Rah, Rah, Rah........ Another tiny victory for sanity.
Non-smoker (save bachelor parties :) ) here that completely agrees with your rationale, gtech. Leave the choice up to me. Get out of our lives, government!!!!
Florida’s New No-Smoking Law: Ifs, Buts, and Butts
http://www.hklaw.com/Publications/Newsletters.asp?ID=378&Article=2122 When Florida voters approved Amendment 6 to the state Constitution in November of 2002, the Florida Legislature was required to adopt legislation to implement the amendment “in a manner consistent with its broad purpose and stated terms.” The amendment also mandated an effective date no later than July 1, 2003, and specifically permitted the Florida Legislature to adopt more restrictive regulation of tobacco smoking than provided in the constitutional amendment. Nothing was said about relaxing any requirements that the amendment provided.
There very possibly will be challenges to the law from those who think the statute is too strict and others who will complain it is too lax and does not provide the protections envisioned in the constitutional amendment. That is the bailiwick of the lobbyists, lawyers and trade associations. The courts, and perhaps a subsequent session of the Florida Legislature, may well make some changes, but with July 1 rapidly approaching, the hospitality industry has no choice but to comply with the provisions of the law as written.
The new statute, Section 386.201, Florida Statutes, is now part of the Florida Clean Indoor Air Act. As with any statute, reading and understanding the definitions is essential. For our purposes, some of the key definitions are Designated Guest Rooms at Public Lodging Establishments, Enclosed Indoor Workplace, Physical Barrier, Retail Tobacco Shop, Smoking, Work, and Stand-Alone Bar. These definitions are vital to understanding where smoking is permitted in an Enclosed Indoor Workplace.
Enclosed Indoor Workplace.
The definition of Enclosed Indoor Workplace is critical, since the original basis for passage of the constitutional amendment was the protection of workers and the public from second-hand smoke. Interestingly, when defining Work, the legislature adopted the language of Amendment 6, which did not distinguish between an employee or independent contractor who is compensated and a volunteer or apprentice who is not compensated. For hotels, this definition would include a member of a trade association handing out registration materials at a seminar in the hotel’s conference center.
The law prohibits smoking in any Enclosed Indoor Workplace, except where the statute provides a specific exemption. Turning back to the key definition, Enclosed Indoor Workplace is defined as any place where one or more persons engages in Work, and where such place is “predominantly or totally bounded on all sides and above by physical barriers.” The definition further provides that the barriers can be uncovered openings, screened or partially covered openings, windows and doors. The statute creates a definition of “predominantly” bounded by physical barriers, and the test is that more than 50 percent of the area is covered by a physical barrier that excludes rain and that more than 50 percent of the combined surface area of its sides is covered by closed physical barriers. Each of these test elements has its own standards. Hotel architects and designers must be cognizant of these criteria in creating new or renovated areas in a hotel.
Retail Tobacco Shop.
Hotels with a retail tenant or concession that is a Retail Tobacco Shop will be pleased to learn that as long as it is limited to, or predominantly for, the retail sale of tobacco and tobacco products and accessories, it qualifies for one of the few exemptions. This is an apparent inconsistency with the original language of Amendment 6. The question still remains as to the acceptable location of a Retail Tobacco Shop, since the statute does not address whether a Retail Tobacco Shop that allows smoking may be located within another Enclosed Indoor Workplace where smoking is prohibited. Does a Retail Tobacco Shop located in a hotel lobby qualify for the exemption if it is accessible only through the hotel lobby entrance? Could there be a different outcome if the Retail Tobacco Shop located in a hotel lobby is accessible through a separate entrance? These issues are paramount for existing hotels with Retail Tobacco Shops and new or renovated hotels that intend to allow a Retail Tobacco Shop in the lobby or shopping arcade.
Designated Smoking Guest Rooms at Public Lodging Establishments.
Another exemption is that of Designated Smoking Guest Rooms at Public Lodging Establishments. This definition is consistent with the original language of Amendment 6 and permits smoking in guest rooms designated as such and the associated private areas. The person having “management authority” is authorized by the new law to designate guest rooms as “smoking guest rooms.” While there is no requirement that Designated Smoking Guest Rooms must be provided, there is also no limit on the number of guest rooms that may be designated as smoking guest rooms. Potentially, a hotel or motel could designate all of its rooms as smoking guest rooms or could elect to be a smoke-free property.
Stand-Alone Bar.
One of the most important definitions, because it is tied to one of the exempt uses, is that of Stand-Alone Bar. There are several important criteria for a bar to meet the statutory test. Food must be incidental to the consumption of alcohol, and no more than 10 percent of the gross revenue of the establishment can be from the sale of food consumed on the licensed premises. In order to monitor food consumption, aside from customary bar snacks (a term not defined), vendors may not provide or serve food without charging a separately stated price that reasonably approximates the retail value of the food. This means that “free food” and “pricey drinks” won’t work to avoid the ban on smoking. An audit, at the vendor’s expense, must be submitted to the state every three years demonstrating the vendor’s compliance with this requirement. A Stand-Alone Bar cannot share any common entryway or indoor area (such as, for example, kitchens, bathrooms, hallways, stairs, elevators, foyers) with any other Enclosed Indoor Workplace. This is architecturally relevant for bars within hotels.
Stand-Alone Bars will be looked at very carefully, and the renewal of their vendor’s licenses will depend in part upon their compliance or non-compliance with this law. As of July 1, 2003, until the renewal of the vendor’s license, the vendor must post a notice of its intention to comply with the statutorily required conditions and qualifications of a Stand-Alone Bar. There are administrative obligations in terms of affidavits and license renewal that may be a burden. Similarly, there is an obligation for conspicuous signage at each entrance stating that smoking is permitted in the establishment.
Person In Charge.
The statute requires that the “person in charge” of an Enclosed Indoor Workplace post signs as required by the statute. There is no definition of person in charge, and in another section, there is a reference to the “proprietor or other person in charge” being responsible to develop and implement a policy regarding the smoking prohibitions of this law. This could well mean that the owner, the hotel operator and the general manager all will be held responsible for compliance with both the signage and policy requirements. The policy must include how complaints and violations of the law are dealt with and reported. It also must prohibit employees from Smoking in the workplace.
Enforcement.
When Amendment 6 was passed, it was not clear which agencies would be responsible for enforcement. In varying degrees, all of the following are now involved: Department of Health, Division of Hotels and Restaurants, Division of Alcoholic Beverage and Tobacco of the Department of Business and Professional Regulation, State Fire Marshal, Department of Agriculture (with jurisdiction over truck stops), and local law enforcement. A series of fines, ranging from $100 to $2,000, may be assessed for violations of the requirements for Stand-Alone Bars and for violations that are architectural or signage related. If noncompliance still exists after these penalties are assessed, the Department of Health, the Division of Alcoholic Beverage and Tobacco of the Department of Business and Professional Regulation and the Division of Hotels and Restaurants may file a complaint against the violator. For noncriminal violations (a person smoking in a non-exempt Enclosed Indoor Workplace), a series of fines of not more than $100 for the first violation and not more than $500 for each subsequent violation may be imposed. The statute requires that the Department of Health, the Division of Alcoholic Beverage and Tobacco of the Department of Business and Professional Regulation and the Division of Hotels and Restaurants adopt rules to implement the enforcement procedures. The statute does not specifically deal with a hotel guest or restaurant or bar patron who ignores the signs or a request from hotel or restaurant personnel to stop smoking. This is an important matter for the required employee policy manual.
One element of the new law that will be helpful is that the state of Florida has continued to preempt regulation of smoking to the state and the law will supersede any city or county ordinance. Regardless, there are still many things to consider as July 1, 2003, approaches. Current policies, check-in forms, employee manuals and Web sites may need to be revised and updated to reflect the standards required by the new law. Existing facilities will need to be evaluated as their ability to continue may be impacted by the new law. A determination will need to be made whether existing signage meets the requirements of the new law.
As anticipated, the new law highly limits smoking in hotels, restaurants and bars. Florida is not blazing a new trail here. Smokers, speaking of Florida, may well say, “At least it’s better here than in California or New York.”
It is a classical case of unintended consequences.The costs to the state in court time,the costs to the buisnesses,the costs to the taxpayer,the costs to the trust between the state and the people.
don't forget Delaware - that war is definitely not over - not by a long shot.
