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Last Update: Aug 24th, 2019
Bar Smokers

It's Time for a Full Smoking Ban in Florida

When I first moved to Fort Lauderdale, I was baffled by the Florida Smoking Laws. In NY, smoking isn't allowed in bars or restaurants at all. You get used to smoke-free pretty quickly; coming home from a night at Dicey Riley's reeking of smoke wasn't something that brought back positive memories.

What confused me was Tarpon Bend. I don't know if they still do it, but they used to allow smoking after they stopped serving food. I asked a few people about it, but nobody seemed to know. At like 11pm on weekends, Tarpon Bend turned into a club and they started to allow smoking.

I've since learned that this is against the Smoking Law; a venue either has a waiver or it doesn't and a restaurant can't get a waiver. Any restaurant that allows smoking "sometimes" is breaking the smoking law and can be fined.

As of July, 2019, smoking laws also apply to Vaping. If you can't smoke cigarettes

Florida Smoking laws are enforced by the Department of Alcohol Beverages and Tobacco (ABT).

The Smoking Law Explained

Florida's smoking law as it pertains to bars and restaurants has basic requirements:

1) Food Service must be "incidental" to drinking. Food Sales must be less than 10% of Gross Revenue of the business, on a 2 month sliding window. The requirement is continual; so a bar can't stop serving food in December to get below 10% for the year.
2) Establishments must apply for a waiver. In order to allow smoking, a bar must apply for and obtain a waiver. This is usually shown as an SSF designation on their Liquor License.

Smoking is also allowed in "outside spaces"

Outside Space Specifications

A restaurant may allow smoking in an outside area that meets the following requirements:

1) Any space that is less than 50% covered.
2) Any space that is less than 50% bounded by physical barriers.

The law is pretty specific about his. Screens are considered a barrier. So are windows. So a screened in, covered patio cannot legally allow smoking. Opening windows doesn't make it a non-barrier. So when a restaurant puts up those plastic walls when it's raining out, they can't allow smoking.

Smoking Law Basics

A Waiver is REQUiRED

You can't just declare yourself a standalone bar; you have to get a waiver, even if you don't serve any food at all. There is no charge or fee to get a waiver.

Signs are REQUIRED

Venues that have smoking waivers must post a sign at "each and every" entrance to the establishment. I can't remember seeing any signs at places that allow smoking. I'll be more aware in the future.

NO Free Buffets

Here's the deal. If you have a smoking waiver, you can't have a free buffet. You can't sell any food that isn't clearly separated from alcohol. And you must charge market price for food (you can't sell steaks for $5). The reason is that in order to qualify as a "standalone bar", the service of food has to be less than 10% of your gross revenue, and you can't use tricks to get around the law. I'd think that 1/2 price appetizers at happy hour might even be a problem. I heard that the Blue Martini had to restructure their food offerings (including dropping their high prices) in order to keep below 10%.

All Food Must Be Provided by Provider

If you have a smoking waiver, you can't offer free food or allow customers to bring their own. You can't allow pizza to be delivered. It's against the law. Any food consumed in the establishment must be sold to the customer by the venue owner for a fair market price.

Bar Snacks

"Customary" bar snacks may be provided for free at the bar, but only these items. They've actually specified what can be provided for free. Bar Snacks allowed are:

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.

I'm not sure why pickled items are included. I've never been offered free pigs feet, pickles or pickled sausages at a bar.

Audits

A bar who has elected for the stand-alone bar designation is subject to random audits by the ABT. The bar must provide all records showing specific sales of food upon request. There are a whole series of records that must be kept to prove compliance with the standalone bar designation.

You Can't Just Open the Windows

You can't just open the doors and windows and say that you are "open air" and therefore can allow smoking. Places like Treasure Trove must get a smoking waiver; it's not an outside space.

Penalties

One of the problems with these "laws" is that the penalties are very weak. I once had a bar manager tell me that they stayed open later than allowed by law because the fine for doing so was nothing compared to how much they could make in an hour. Weak penalties water down the law.

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;
- 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 $2,000;
- Fourth and subsequent violations: 60-day suspension of smoking designation and a fine of not less than $500 or more than $2,000, or revocation of smoking designation.

These penalties are a joke. The penalty should be a proportion of gross sales. You can't treat a bar with 12 seats the same as a big club. How about 1% of gross sales for a repeat violation?

Standalone Bar Waiver Affidavit

On the other hand, if you apply for a smoking waiver, you expose yourself to perjury if you do any cheating. The affidavit it pretty clear; I'm surprised that so many people risk getting themselves into serious trouble. This has to be signed every year by the business owner:

I, the undersigned, hereby swear or affirm I am duly authorized to make this affidavit. I hereby swear or affirm that in the preceding 12-month period the above referenced business has met and maintained the licensed premises as a stand-alone bar as defined in s. 386.203(11), Florida Statutes. I swear or affirm that no more than 10 percent of the gross revenue of the business was derived from the sale of food consumed on the licensed premises as defined in s. 386.203(11), Florida Statutes; other than customary bar snacks as defined by rule of the division. I swear or affirm that the business did not provide or serve food to a person on the licensed premises without requiring the person to pay a separately stated charge for food that reasonably approximated the retail value of the food. I swear or affirm that conspicuously placed signs have been posted at each entrance to the establishment stating that smoking is permitted in the establishment. I, the undersigned individually, or if a corporation or other legal entity for itself, its officers, partners, and directors, hereby swear or affirm under penalty of perjury as provided for in Sections 559.791, 562.45 and 837.06, Florida Statutes, that the foregoing information is true.

Restaurants and Bars Violating the Law

The confusing smoking law results in lots of places violating the law, and I don't quite get why the Dept of Alcohol and Tabacco doesn't seem to enforce the law. If a place wants to allow smoking, that's up to them, but make them comply with the rules. I started thinking about this when I started hearing ads on the radio for the Wild West Gentlemen's Club in Palm Beach. They're advertising a free happy hour buffet, and I was pretty sure this wasn't allowed. So I checked to see if they had a smoking waiver, and they do. So they can't have a free buffet. They also offer a "Cowboy Steak and a bucket of Beer" for $50. Also not allowed. They have to keep food and alcohol separate.

"Other" strip clubs give away free food and allow smoking, so I wonder how many lap dances it takes to get an inspector to look the other way? Or maybe there are no inspections? Clubs have been offering free buffets for 12 years now since the law took effect in 2003. Maybe they just pay the paltry fines?

There are a lot of places around town that probably don't comply. J Mark's patio comes to mind. It's covered and sort of screened in. It probably doesn't quality as an outside space. There's a bar in Dania, the Land Crab Lounge that has a "bar" where they allow smoking and a walled off dining room. This is specifically not allowed. They also don't have a smoking waiver, so they're just plain lawless.

Why Haven't We Updated the Laws

28 states currently ban smoking in all enclosed areas. Why is Florida so far behind?

My big question is why haven't we updated the laws to ban smoking in all bars and restaurants? The argument back in the early 90s was that people would stop going to places where they couldn't smoke and that businesses would go out of business. First it was the Malls. "People won't shop". We've found that not only do people still shop, but that Malls are now nicer and cleaner. Mall owners are now willing to put down marble and higher end materials because they don't have to worry about everything being ruined by smoke and cigarette litter.

The same arguments were used for bars. "You'll put us out of business". We know now that isn't the case. The trade off of a clean environment is a clear winner. Smokers are now used to having to go outside to smoke. Why should a bar be any different than a restaurant?

If you think about it, Florida's law is patently stupid. The supposed justification for the ban was public health; not only the health of patrons but also the health of people who work at the establishment. Is the health of people who work in bars that allow smoking not important? Are they somehow outside the concern of Public Health?

Also, many fewer people smoke now. When 35% of people were smokers, there may have been a case to be made that smoking was important to many small bars and clubs, and that business would be hurt. But now it's the opposite. People expect a smoke free environment. I avoid places that allow smoking. I'm not the only one.

In a Tourist town like Fort Lauderdale, it's even more important. People who come here on vacation from other smoke-free states are used to a smoke-free environment. They don't want to go to places that allow smoking. NY, MA, NJ, MI, OH, our biggest tourist states, all have statewide bans on indoor smoking. Imagine the horror when they go to the Blue Martini and someone lights up next to them.

Heck, even Russia is banning indoor smoking. It's time. Time to get with the program and to Ban all Indoor Smoking in Florida.

Comment Policy Add Comment
Administrator
Reply
The only thing worse than a stupid person is a stupid person who smokes.
jj
Reply
When California first banned smoking, the bars went crazy and proclaimed they would be out of business within 60 days. Not only did they survive, but most of them increased their business. WHY?????????????? Because most NORMAL people simply don't want to breath that crap and they sure as hell don't want it in their clothing. The amount of people who STAYED AWAY from bars and clubs who allowed smoking then far exceeded those who ventured into them. And when smoking was banned, it opened up a whole new venue of people and revenue stream. People really dont want to breath in that crap or even smell it and they definitely dont want it on their clothes. Bars have flourished since smoking was banned.It should NOT be allowed in Florida.....period, end of story.
Reg
Reply
WHY DONT WE JUST LET BARS CHOOSE THEMSELVES. IF YOU WANNA MEET AT A NON SMOKING BAR THEN DO SO. WHY THE F=== SHOULD WE BAN ALL SMOKING EVERYWHERE WHEN YOU WONT EVEN GO THERE ANYWAYS. MOST BARS ARE NON INDOOR SMOKING AS IT IS. THE ONLY BARS THAT ARE INDOOR ARE DIVES AND HARDCORE BARS. MOST PEOPLE DONT GO TO THOSE AND THEY SURVIVE ON THEIR REGULARS, NOT RANDOS. LEAVES US THE F ALONE YOU BLUEBLELLYS. GO BACK TO NY OR OHIO IF YOU MISS IT SO MUCH.
John
Reply
We don't let bars choose for themselves because of Public Health issues for everyone, not just selfish "regs" and for the same reason we don't let people smoke on airplanes---because cigarette smoke is hazardous.

If you want to kill yourself, please have another cig, but I prefer not tasting and breathing your vile cigarettes and second-hand smoke.

Does it really hurt you to go outside for 5 minutes to suck on your Cancer Sticks?
Administrator
Reply
I remember when they first banned smoking in shopping malls; everyone was worried that people would stop shopping. People still shop.

Just about everyone agrees that the world is much more pleasant now, even people who smoke; it's only the people who can't go 2 minutes without tobacco that still complain at this point. This guy is like 60, smokes 3 packs a day and has a cigarette before he brushes his teeth in the morning.
Administrator
Reply
Assuming you're over 12yo, how many non-smoking bars were there before the smoking bans? Zero. Now next time you comment, try to use your brain.
Michelle
Reply
Please how do we pass this so there is no more smoking in bars. originally from Ohio and came down here and shocked. My bf smokes but still goes outside. Florida needs to move on. Most of my friends won't meet up at a smoky bar. Quit the smoking and more people will come to the bars.
Administrator
Reply
Restaurants are starting to prohibit smoking in their outside space. As of Dec 1, The Royal Pig Pub no longer allows smoking on their patio.
Administrator
Reply
Updated to point out that Vaping is now prohibited in restaurants and workplaces in Florida.
Rich
Reply
Your site says OUTSIDE SPACE SPECIFICATIONS

A restaurant may allow smoking in an outside area that meets the following requirements:

1) Any space that is less than 50% covered.
2) Any space that is less than 50% bounded by physical barriers.

Does that mean no smoking under tolal covered space?

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