Last Update
Aug 24th, 2019

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
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?
Administrator
Reply
If it's covered, then 50% of the sides have to be open. So an awning with no screens or walls on 3 sides would qualify. An awning only open on 1 side would not.
Tara W
Reply
Is it allowed to smoke outside a restaurant in florida while waiting for a table? I thought you had to be a certain distance away from food service?
Administrator
Reply
There's no distance requirement. A table inside can be right next to a table "outside", so choose your seating accordingly.
Sean
Reply
I moved from CT to FL recently and am a huge fan of playoff pool. I have done this hobby 17 years and am
Lucky enough to have a pool hall close to my residence. However, I probably won’t play there due to the nasty smoke. It irritates my body and makes my clothes smell horrible. Never again
Administrator
Reply
You'd think they could make a pool hall smoke free without the argument that they'd lose business.
Nancy
Reply
Does anyone know of a policy maker or assistant to a policy maker that I can contact regarding present a discussion about expanding the smoke ban policy to all public buildings? I am needing someone for a class project.
Peter
Reply
Just just moved here from New Hampshire. Smoking in bars or patios where food is served in not allowed there. Thank God. Bars and restaurants found they had more customers after the ban came into effect. Wake up folks. A lot of people including myself won't go to bars or any establishments anymore that allow smoking. There is no reason why someone that can't wait 1/2 hour while I eat my breakfast or lunch at an outside patio to light up. If you need to light up just walk away from the area where people eat. I ate lunch at the Sebring Diner today and all the outside tables on the patio were full and only one man decided to light up at the table while is wife and everyone else were eating their food. Really. You are a very rude man just because you have a right. Someone else walked away from the area and had a cigarette. Thank you for being curtious to the rest of us. Where can I add my name to a statewide outside smoking ban in Florida?
Administrator
Reply
Talk to your local state representatives to find out if there's any discussion about it. Local political groups should know people with influence, but some of them may be smokers, so be careful.
Saxifrages
Reply
How does one report a non-compliant bar/restaurant?
Administrator
Reply
850-487-1395 Statewide Office
954-917-1350 Fort Lauderdale Office

Contacts: Link
Mike
Reply
The smoking ban was enacted in 2003, after being OK'd by voters as a constitutional amendment. It was the first smoking ban to be approved that way, so it included more exemptions than voter-approved bans and many other laws would a few years later.

That said, 98% of venues should be smoke free if they are following the law.

It would cost millions to modify the ban now, since it is a constitutional amendment. I doubt they'd spend another​ $3 million just to close a couple loopholes.
Administrator
Reply
That's a drop in the bucket easily justified by health care costs and lost tourism. Maybe a weekend's revenue. The law is a joke anyway; the health of employees was always the justification; so the health of employees who work at bars and clubs are exempt from concern?

Imagine a 27yo tourist from a smoke-free state who has never been exposed to cigarette smoke in any venue in his life, coming to Florida and going to a stinky bar? It may be their last visit to FL, and they're certainly not going to move here.

The Casinos are getting hurt by smoking. Only smokers and gambling addicts are willing to deal with the stench in those places. You need an oxygen mask at Coconut Creek. So as fewer and fewer people smoke, more and more business will be lost. Of course the Indians aren't subject to the law, but they're a good example where they're losing more business than they're gaining by allowing smoking. When 85% of people don't smoke, you have to change your business model.

An amendment would pass easily. It has to be done eventually, so why will it cost less 5 years from now? Get it done. The cost is not the reason. It certainly makes business sense to go smoke free like the rest of the country.
sette
Reply
I guess if they decide it's good business sense, then that's what they will do. They won't need the government t tell them how to run their business; will they?
Administrator
Reply
Would people serve food without a license or without buying expensive fire suppression systems if the government didn't tell them to? People that own clubs are more likely tax-cheating slimeballs than harvard grads. Nobody could have predicted 20 years ago that restaurant business would increase when they banned smoking.Only 20% of people are sensible in this world.
Doug
Reply
Ann's Florist and Coffee Bar on Las Olas Blvd has out door seating which is 100 percent covered. Some customers smoke. Is this allowed by law?
Administrator
Reply
As long as there are no walls or windows on the side, yes.
Jack Hall
Reply
What about a waist high fence? It’s definitely a ‘barrier’
Administrator
Reply
Probably ok. A patio can have a railing; in face a railing might be required. What's the difference between a short fence and a railing? As long as it's open air.
dan
Reply
Who would we contact to request a full smoking in bar ban? This is the first state Ive ever lived in that allowed it, and it's disgusting.
Administrator
Reply
I don't know of any current movement in Florida. There's been some chatter up in Orange County (Orlando) about a county-wide ban. So that would probably be the way to go. Tobacco-Free Florida is somewhat of a misnomer, because it's actually a state run campaign; the state that allows smoking in bars.
Laura
Reply
I was eating dinner at the bar in a very nice restaurant last week, and I was surprised that the guy next to me was vaping. I asked him if he could make sure that the smoke not come towards me. He was accommodating but made sure to explain to me that it wasn't "smoke" and gave me some lengthy definition of what it actually was. My contention is that, whatever it is, I don't want to breath it in. My question is this. Is vaping now legal in restaurants?
Administrator
Reply
Smoking laws specifically apply to "tobacco", so the laws don't apply to vaping; yet. Some states are moving towards including vaping in their laws. As the article states, Florida is behind the times as we still allow smoking in bars for no good modern reason.

Restaurant owners do read yelp reviews, so negative reviews citing vaping can have influence on policy. It's up the the restaurant to allow vaping or not.
Michael
Reply
I personally detest cigarette smoke. It actually burns my eyes, throat, and then makes me sick to my stomach. I even feel the effects in an empty room that has been heavily smoked in. HOWEVER, I believe the owner of an establishment should have the right to set the rules for his/her place of business. If a bar or restaurant chooses to allow smoking, that's okay by me. I simply take my business elsewhere. I don't need or want Big Brother "saving" or "protecting" me while stripping owners of their right to use their personal business/property the way they see fit. All this "political correctness" makes me sicker than does the smoke.
Donna L
Reply
Just because a person owns their place of business doesn't allow them to do whatever . These public businesses cater to the public and in doing so are regulated by laws . They have to have licences for food and past govenment health regulations and inspections ... they have to not go over the state regulated capasity per size of business ... they must pass local fire laws ... the lists goes on and on .... so even though they OWN the business , government has always regulated them .. even down to the Keno and liquor license . Like those reasons , smoking in the same public places are a health hazard and now is being addressed as such . Everybody that is pitching a fit over this should look back at how this had been coming for a long time . It hasn't just sprung up out of nowhere ... I remember when people were allowed to smoke in grocery stores , doctor's offices , hospitals , everywhere they wanted , but now people would find it shocking to see this . My point is ... this is not something new that the government is doing ... they have been doing it for DECADES to help improve our enviroment and health . This is just another step towards that .
Joanna
Reply
I agree with Michael. I just looked up the law as I am in Ft. Lauderdale as was surprised that people were smoking. I texted my daughter not to join me because she has asthma but I am staying as it is the only place that is showing the Patriots game! I'm not enjoying the smoke but I chose to stay and she chose not to- and I don't care if they have signs up or not- that's bureaucratic pettiness. Don't go to a place that allows smoking if you don't like it. It's that simple.
Administrator
Reply
The fact that you don't care if they comply with the law speaks volumes. It's not "pettiness". It's so people don't sit down and order something and THEN find out that there's smoking. It gives people a chance to decide to go somewhere else.
Administrator
Reply
That's the noble, libertarian position, but we know that such a policy results in there being cigarette smoke everywhere you go, so I disagree. Restaurants are regulated in lots of ways; do you wear gloves at home when you make a sandwich? The idea that you can do whatever you want because it's your business isn't the case in almost any business; certainly not in businesses that serve the public.
Roger
Reply
Stop being an intrusive liberal. I live in FL, there are plenty of places to go to where you can smoke, or not smoke. Why don't you just go somewhere, where there is no smoking allowed, instead of suggesting every bar, and public venue has to ban smoking, even though you will never go to those smoking bars anyways. Typical liberal from NY, its all me me me
john
Reply
Me me me wants to go to any PUBLIC place and have a meal or drink without Roger's cancerous and annoying smoke. Typical smoking jerks don't have any awareness of others and want us to go somewhere else---like Roger. I'm not from NY or a liberal---which has nothing to do with it. If you want to smoke Roger go outside, or smoke in your own stinky house and car.
Administrator
Reply
Yeah, I'm a big time liberal.

Smoking is not a right. It's a disgusting habit. I shouldn't have where I can go dictated by people with disgusting habits. When you smoke you impede my right to breath clean air. Even libertarians don't believe you have the right to annoy others.

The pro-smoking argument is the same as the abortion argument. It's a me, me, me POV. "I have the right to do whatever the hell I want; screw the baby's rights. I don't give a crap about anyone's "rights" but my own".

Do I sound like a NY Liberal?
paul
Reply
B.S. Thats your opinion and I am a smoker and thats my right. I am how ever respectful towards people who dont smoke, and I try not to smoke around the so called non smoker. but it is my right. If I am in my home or outside it is still my right.
Gina
Reply
Being a smoker is not a right. It is a choice. A bad choice. You choose to smoke. The people who do not smoke have the right to breathe smoke free air. I choose not to smoke but I am forced to breathe in your smoke. So ridiculous. There is absolutely no justification whatsoever. Fort Lauderdale needs to wake up and ban smoking completely in all public areas regardless of indoor or outdoor.
Administrator
Reply
If's "your right" to smoke as long as your stinking smoke doesn't affect the breathing space of others. Apartment landlords have the "right" to not allow tenants with pets or who smoke.

All we're asking is that Florida join the rest of the country in making all public spaces smoke free. There's lots of things you're not allowed to do in public, so you have a twisted view of what your "rights" actually are.
Anna
Reply
I just moved to St. Augustine and I can't go to any of the bars that allow smoking. I went two nights in a row to two different places and everything, even my purse stunk. I also started coughing after the second night. It should not be legal in any public building. It affects the health of the non smoker and is just plain nasty.
Amanda
Reply
I LOVEEEEEEEE this comment!!!! And agree 100%.
I am allergic to smoke and get very sick for days from second hand smoke even when it is not actively been blown in my face (a cab ride for instance where the driver is not actively smoking but just put one out). I am planning to vacation in FLL, Florida with friends for a bachelorette party and may have to be 'that' girl who either goes home by herself if they decide to go to a smoky bar or steer them to a lame place bc of the lack of smoking laws. And then the abortion statement. Perfection. If you are a man administrator, I would marry you.
Patt Gavin
Reply
I lived in Los Angeles when the smoking ban was first begun there. All of the bar owners cried that they would lose business and have to close down. It didn't happen. What did happen was that the bars became better places to visit than they had been when smoking was allowed. This brought out even more customers. The smokers got used to going outside pretty quickly and everyone was happy. Then I came here and realized that I don't want to spend my time in bars here. When someone asks me to meet them at a bar, I change it to a coffee shop and everyone wins. Except the bar that just lost our business.
Administrator
Reply
Of course. There are many more non-smokers than smokers, and even many smokers would prefer to hang out in places with clean air. It's only the bar owners who have all regulars that smoke that complain. They should see smoke-free as an opportunity to get new customers. In 2003, the restaurant lobby was dead against it; the current law is a compromise to appease the bar owners. At this point, it's antiquated. We now know that banning smoking doesn't cause people to stay home to smoke. So that's why I'm saying that it's time to drop the stupid compromise and go smoke-free.

In NY, they actually implemented a ban, it was struck down by the courts, and then they passed a law a few months later re-implementing it. Several big clubs loved the fact that they didn't have all of the litter, burns and smoke damage and they remained smoke-free after the ban was struck down.
Tom
Reply
I've heard this argument before, and the inconsistency with your earlier post is glaring. We know it's true that there are more non-smokers than smokers. Therefore, it makes sense that, if a venue were to go non-smoking, it would draw more customers. But you said above, in response to a "libertarian", that if the government doesn't regulate smoking all establishments would allow smoking. So which is it? Why would a business cut its own throat and allow smoking, if it costs them customers?

Also, to the argument that government already regulates aspects of business ownership (such as requiring cleanliness in food preparation), there is an easy solution for smoking - just put a sign on the door that states whether the business is smoke-free or smoking-allowed. Problem solved.
Administrator
Reply
it's not contradictory. You're obviously a smoker and not objective, so no amount of explaining it to you will be a good use of anyone's time.
Dave L
Reply
I'm am trying to open an Asian style karaoke establishment. Are target demographic are primarily East Asian students, who are generally OK with sharing a tiny room with their friends who smoke, even if they don't. I think a great many of them would spend less time in our rooms if they constantly have to get up and go outside to have a smoke while they're pounding beers.

I resent the fact that I have to jump through all these hoops and suffer the outrage of people who will never visit my establishment at to the discomfort of those who do? Almost everywhere is smoke free these days. Why is it necessary to force your values on such a small percentage of the bars when most options are smoke free?
Administrator
Reply
You're going to lose all of your money anyway, so why not do it without smelling like an ashtray?
Bob Johnson
Reply
If you don't go to an adult bar to eat, why is it any concern to you? I enjoy visiting Ft. Lauderdale since many of my friends are smokers and enjoy going to a local bar where freedom reigns. Their local bar closed their kitchen to retain their loyal customers. Customers call a local take out restaurant when they want to eat.
Administrator
Reply
Because I don't want to breathe smoke or stink from your bad habit.

What you've described is illegal in Florida. Read the article. You can't bring food into a bar with a smoking waiver.
speedrider
Reply
I'm with you. I would love to go to a bar and not have to strip down before going back into my home.
Mike
Reply
100% agree. I would love to be able to go to a sports bar and watch some football on the big screen TVs with my friends, which would be so much fun, but we are so grossed out by the disgusting smoke smell in the air on our clothes (not to mention that 2nd-hand smoke causes Cancer for crying out loud). So, we watch the games at home, while the sports bars lose business. The last time we went there, the place was half-empty .... duh, of course it's empty, because the only people in there were smokers, which thank god are a dying breed (yea, that's right ... literally dying).
When Ohio banned smoking in bars, it was a total non-issue. People who wanted to smoke simply stepped outside for a few minutes to smoke and talk and then walked back inside and everybody's happy. What in the world is so wrong with that model? The happiest people of all were the folks who work at the bars ... can you imagine having to breathe that cancerous smoke for an entire shift, 5 or 6 days a week?

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