Spotlight: Smoking FAQs
The Spotlight series is intended to provide helpful information about important business and professional licenses in Florida. This installation is on Florida’s smoking ban and the stand-alone bar exception. The following information is reproduced from the Department of Business and Professional Regulation’s frequently asked questions database.
Where is smoking allowed?
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 that have been approved by the Florida Department of Health; Medical or scientific research; "In-transit" airport smoking lounges under control of U.S. Customs and Border Protection; Stand-alone bars; Outdoor patios; Membership association facilities used exclusively for non-commercial activity.
References: 386.2045 and 386.203(12)(13) Florida Statutes.
How does an establishment become a stand-alone bar and is there a fee?
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 and must continue to meet all requirements of a stand-alone bar. (Please note: merely electing to make the stand-alone bar designation does not establish qualification for the exemption.) 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 & Tobacco, 2601 Blair Stone Road, Tallahassee, FL 32399-1021.
There is no fee to add this designation to your alcoholic beverage license.
Reference: F.S. 561.695.
What are the conditions or restrictions for a stand-alone bar to allow smoking?
To allow smoking a stand-alone bar must meet the following conditions:
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;
All food must be paid for by a patron at a charge that reasonably approximates the retail value of the food; and any food given away at no charge must be restricted to customary bar snacks only.
A stand-alone bar must be totally or predominantly dedicated to the serving of alcoholic beverages for consumption on premises. "Predominantly" means that the revenue from the sale of alcoholic beverages for consumption on premises must exceed all other categories of gross sales listed in Florida Administrative Rule 61A 7.009.
Reference: F.S. 386.203(11), FAC Chapter 61A-7.002.
What responsibility does the business have regarding the smoking Ban?
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.
References: F.S.386.206.
What are the penalties for violating the smoking ban?
Penalties are established for individuals, for stand-alone bars and for establishments that are not stand-alone bars. The penalties for establishments which are not stand-alone bars are:
First Violation: Civil penalty of not less than $250 and not to exceed $750; and subsequent violations: Civil penalty of not less than $500 and not to exceed $2,000. The penalties for stand-alone bars 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 $2,000.
References: 386.208, 561.695(8) and 386.207(3) Florida Statutes.
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.
Reference: F.S. 386.203(5). F.S. 561.695 (3).
Can an owner or their employees smoke in the kitchen area or any other area such as a break room?
No smoking is ever permitted in kitchen or food prep areas. Otherwise, unless the business is eligible for and has made the election to be designated as a stand-alone bar that permits smoking, neither the owner nor his employees may smoke in the licensed premises.
Reference: F.S. 386.
Is there a record-keeping requirement related to the smoking designation?
Yes. Stand-alone bars holding an "ss" or "ssf" designation shall maintain records to substantiate reports, affidavits and designation qualifications. Records of all purchases of food, all gross retail sales of alcohol for consumption on the licensed premises, all gross retail sales of alcohol for consumption off the licensed premises, all gross retail sales of food sold for consumption on premises, all gross retail sales of food sold for consumption off the premises, and gross revenue from all other sales shall be separately documented.
All required records must be maintained on the premises, or a designated place approved in writing by the Division of Alcoholic Beverages & 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.
Reference: F.S. 561.695(8).
What types of licenses are not eligible to be designated as a stand-alone bar?
The following licenses are not eligible for a stand-alone bar designation:
S - Special Hotel
SH - Special Hotel in counties with population of 50,000 or less
SR - Special Restaurant issued on or after January 1, 1958
SRX - Special Restaurant
SBX - Special Bowling
SPX - Pleasure, Excursion, Sightseeing, or Charter boats
SAL - Special Airport
SCX - Special Civic Center
SCC - Special County Commission
X - Airplanes, Buses, and Steamships
IX - Railroad Cars
XL - Passenger Waiting Lounge operated by an airline
PVP - Passenger Vessels engaged in foreign commerce
11AL - American Legion Post permitted to sell to general public
11C - Social, Tennis, Racquetball, Beach, or Cabana Club
11CT - John and Mable Ringling Museum
11GC - Golf Club
11PA - Symphony, Live Performance Theatre, Performing Arts Center
11CE - Licensed vendors exempt from payment of surcharge tax
11CS - Special Club license; not transferable, consumption on premise only
12RT - Dog or Horse Track or Jai Alai Fronton
13CT - Catering
HBX - Special Horse Breeders
FEX - Special Public Fairs/Expositions
1APS, 2APS, 3PS, 3APS, 3BPS, 3CPS, and 3DPS - Package Stores
Reference: FAC 61A-7.003.
Can an owner or their employees smoke in the kitchen area or any other area such as a break room?
No smoking is ever permitted in kitchen or food prep areas. Otherwise, unless the business is eligible for and has made the election to be designated as a stand-alone bar that permits smoking, neither the owner nor his employees may smoke in the licensed premises.
Reference: F.S. 386.
What happens if there is a complaint about smoking in my establishment?
The department will review all complaints regarding violations alleged at a licensed premise. If the complaint is substantiated, the department may take enforcement action including monetary penalties.
References: 386.207 Florida Statutes.
May free food, such as a “happy hour buffet” be offered at an establishment with a smoking designation and can the bar engage a caterer to provide or serve food on the license premise?
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. A caterer may deliver food to the stand-alone bar; however, only the licensed operator may provide or serve food on the licensed premises.
Reference: F.S.386.203 (11). F.S. 561.695(3).