The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/SB 224
INTRODUCER: Rules Committee; Environment and Natural Resources Committee; and Senator Gruters
and others
SUBJECT: Regulation of Smoking in Public Places
DATE: February 15, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hunter Ryon CA Favorable
2. Carroll Rogers EN Fav/CS
3. Hunter Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 224 amends the “Florida Clean Indoor Air Act,” which regulates vaping and tobacco
smoking in Florida. The bill allows counties and municipalities to restrict smoking within the
boundaries of any of the public beaches and public parks they own, except with regard to the
smoking of cigars that do not contain a filter or a plastic tip or the smoking of pipe tobacco in a
pipe. Currently, the regulation of smoking is preempted to the state, and counties and
municipalities are prohibited from regulating smoking. “Smoking” is defined in ch. 386, F.S., as
“inhaling, exhaling, burning, carrying, or possessing any lighted tobacco product, including
cigarettes, cigars, pipe tobacco, and any other lighted tobacco product.”
The bill changes the title of the “Florida Clean Indoor Air Act” to the “Florida Clean Air Act” to
account for the broader application of the act proposed in the bill.
II. Present Situation:
The Florida Clean Indoor Air Act (act) in part II of ch. 386, F.S., regulates vaping and tobacco
smoking in Florida. The legislative purpose of the act is to protect the public from the health
hazards of secondhand tobacco smoke and to implement the Florida health initiative in s. 20, Art.
X of the State Constitution.1
1
Section 386.202, F.S.
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Florida Constitution
Tobacco Smoking
On November 5, 2002, the voters of Florida approved Amendment 6 to the State Constitution,
which prohibits tobacco smoking in enclosed indoor workplaces. Codified as s. 20, Art. X,
Florida Constitution, the amendment defines an “enclosed indoor workplace,” in part, as
“anyplace where one or more persons engages in work, and which place is predominantly or
totally bounded on all sides and above by physical barriers … without regard to whether work is
occurring at any given time.” The amendment defines “work” as “any persons providing any
employment or employment-type service for or at the request of another individual or individuals
or any public or private entity, whether for compensation or not, whether full or part-time,
whether legally or not.” The amendment provides limited exceptions for private residences
“whenever they are not being used commercially to provide child care, adult care, or health care,
or any combination thereof,” retail tobacco shops, designated smoking guest rooms at hotels and
other public lodging establishments, and stand-alone bars.
The constitutional amendment directed the Legislature to implement the “amendment in a
manner consistent with its broad purpose and stated terms.” The amendment required that
implementing legislation have an effective date of no later than July 1, 2003, and required that
implementing legislation provide civil penalties for violations, provide for administrative
enforcement, and require and authorize agency rules for implementation and enforcement. The
amendment further provided that the Legislature may enact legislation more restrictive of
tobacco smoking than that provided in the Florida Constitution.
Vaping
On November 6, 2018, the voters of Florida approved Amendment 9 to the Florida Constitution,
to ban the use of vapor-generating electronic devices, such as electronic cigarettes (e-cigarettes),
in enclosed indoor workplaces.2 The use of e-cigarettes is commonly referred to as vaping.
Amendment 9 adds vapor-generating electronic devices to the current prohibition against
tobacco smoking in enclosed indoor workplaces. The amendment makes exceptions for the same
enclosed indoor workplace locations where tobacco smoking is permitted and further permits
tobacco smoking and the use of vapor-generating electronic devices in a “vapor-generating
electronic device retailer.”
The amendment defines a “vapor-generating electronic device retailer” to mean “any enclosed
indoor workplace dedicated to or predominantly for the retail sale of vapor-generating electronic
devices and components, parts, and accessories for such products, in which the sale of other
products or services is merely incidental.”
A vapor-generating electronic device is defined as “any product that employs an electronic, a
chemical, or a mechanical means capable of producing vapor or aerosol from a nicotine product
or any other substance.” The definition includes electronic cigarettes, electronic cigars, electronic
2
Amendment 9 also bans offshore oil and natural gas drilling on lands beneath state waters. See FLA. CONST. art II, s. 7.
BILL: CS/CS/SB 224 Page 3
cigarillos, electronic pipes, and other similar devices or products, replacement cartridges for such
devices, and other containers of a solution or other substance intended to be used with or within
the devices.
Section 20, Art. X, Florida Constitution, as amended, directs the Legislature to implement the
“amendment in a manner consistent with its broad purpose and stated terms.” The implementing
legislation must have an effective date of no later than July 1 of the year following approval
(July 1, 2019). The implementing legislation must also provide civil penalties for violations,
provide for administrative enforcement, and require and authorize agency rules for
implementation and enforcement. The Legislature may enact legislation more restrictive of
tobacco smoking or vaping than that provided in the State Constitution.
Under the amendment, local governments may adopt more restrictive local ordinances on the use
of vapor-generating electronic devices.
Florida’s Clean Indoor Air Act
The Legislature implemented the smoking ban by enacting ch. 2003-398, Laws of Fla., which
amended part II of ch. 386, F.S., and created s. 561.695, F.S., of the Beverage Law. The act, as
amended, implements the constitutional amendment’s prohibition. Specifically, s. 386.204, F.S.,
prohibits smoking in an enclosed indoor workplace unless the act provides an exception. The act
adopts and implements the amendment’s definitions and adopts the amendment’s exceptions for
private residences whenever not being used for certain commercial purposes;3 stand-alone bars;4
designated smoking rooms in hotels and other public lodging establishments;5 and retail tobacco
shops, including businesses that manufacture, import, or distribute tobacco products and tobacco
loose leaf dealers.6
Section 386.207, F.S., provides for enforcement of the act by the Department of Health (DOH)
and the Department of Business and Professional Regulation (DBPR) within each department’s
specific areas of regulatory authority. Sections 386.207(1) and 386.2125, F.S., grant rulemaking
authority to DOH and DBPR and require that the departments consult with the State Fire
Marshal during the rulemaking process.
Section 386.207(3), F.S., provides penalties for violations of the act by proprietors or persons in
charge of an enclosed indoor workplace.7 The penalty for a first violation is a fine of not less
than $250 and not more than $750. The act provides fines for subsequent violations in the
amount of not less than $500 and not more than $2,000. Penalties for individuals who violate the
act are provided in s. 386.208, F.S., which provides for a fine of not more than $100 for a first
violation and not more than $500 for a subsequent violation. The penalty range for an individual
violation is identical to the penalties for violations of the act before the implementation of the
constitutional smoking prohibition.
3
Section 386.2045(1), F.S. See also definition of the term “private residence” in s. 386.203(1), F.S.
4
Section 386.2045(4), F.S. See also definition of the term “stand-alone bar” in s. 386.203(11), F.S.
5
Section 386.2045(3), F.S. See also definition of the term “designated guest smoking room” in s. 386.203(4), F.S.
6
Section 386.2045(2), F.S. See also definition of the term “retail tobacco shop” in s. 386.203(8), F.S.
7
The applicable penalties for violations by designated stand-alone bars are set forth in s. 561.695(8), F.S.
BILL: CS/CS/SB 224 Page 4
During the 2019 Regular Session, the Legislature amended part II of ch. 386, F.S., to ban the use
of vapor-generating electronic devices, such as electronic cigarettes (e-cigarettes), in enclosed
indoor workplaces.8
Smoking Prohibited Near School Property
Section 386.212(1), F.S., prohibits smoking by any person under 18 years of age in, on, or within
1,000 feet of the real property comprising a public or private elementary, middle, or secondary
school between the hours of 6 a.m. and midnight. The prohibition does not apply to any person
occupying a moving vehicle or within a private residence.
Enforcement
Section 386.212(2), F.S., authorizes law enforcement officers to issue citations in the form as
prescribed by a county or municipality to any person violating the provisions of ch. 386, F.S.,
and prescribes the information that must be included in the citation.
The issuance of a citation under s. 386.212(2), F.S., constitutes a civil infraction punishable by a
maximum civil penalty not to exceed $25 or 50 hours of community service or, where available,
successful completion of a school-approved anti-tobacco “alternative to suspension” program.9
If a person fails to comply with the directions on the citation, the person will waive his or her
right to contest the citation, and the court may issue an order to show cause.10
Regulation of Smoking Preempted to State
Section 386.209, F.S., provides that the act expressly preempts regulation of smoking to the state
and supersedes any municipal or county ordinance on the subject.
As an exception to the state’s preemption of smoking regulation, s. 386.209, F.S., permits school
districts to further restrict smoking by persons on school district property.
Section 386.209, F.S., adopts and implements the Florida Constitution’s grant of authority to
local governments to adopt more restrictive local ordinances on the use of vapor-generating
electronic devices.
Regarding the issue of preemption, a Florida Attorney General Opinion concluded that the St.
Johns Water Management District could not adopt a regulation prohibiting smoking by all
persons on district property.11 The Attorney General reasoned that s. 386.209, F.S., represents a
clear expression of the legislative intent that the act preempts the field of smoking regulation for
indoor and outdoor smoking. The Attorney General noted that the 2011 amendment of s.
8
See ch. 2019-14, Laws of Fla.
9
Section 386.212(3), F.S.
10
Section 386.212(4), F.S.
11
Op. Att’y Gen. Fla. 2011-15 (July 21, 2011). See also, Op. Att’y Gen. Fla. 2005-63 (Nov. 21, 2005), which opined that a
municipality is preempted from regulating smoking in a public park other than as prescribed by the Legislature.
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386.209, F.S.,12 authorizes school districts to prohibit smoking on school district property and
concluded that further legislative authorization would be required for the water management
district to regulate smoking on its property.
Public Parks Owned by Counties and Municipalities
In Florida, there are 67 separate county park systems and more than 400 separate municipal park
systems.13 For example, Orange County Florida maintains and operates 118 county-owned parks,
which consist of a wide array of available activities and facilities.14 Parks provide a variety of
activities to the public, including nature trails, bird watching, youth and adult athletics, bike
paths, horse trails, boat ramps, fishing piers, metal detecting locations, outdoor gyms, and
outdoor pavilions.15 Additionally, municipalities within Orange County also own and operate
parks and outdoor recreational facilities. For example, the City of Winter Park, within Orange
County, owns and operates 11 city parks, which offer similar recreational activities.16
The Division of Recreation and Parks within the Florida Department of Environmental
Protection (DEP) maintains a comprehensive inventory of the existing park facilities and outdoor
resources in Florida. The inventory provides details about the parks and recreation areas in the
state and consists of over 13,000 separate records, the majority of which are county and
municipal parks.17
Laws in Other States
In 2009, Maine passed a law prohibiting “[smoking] tobacco or any other substance in, on or
within 20 feet of a beach, playground, snack bar, group picnic shelter, business facility, enclosed
area, public place or restroom in a state park or state historic site.”18 In 2015, Hawaii passed a
law prohibiting smoking within its state park system.19 In 2018, New Jersey banned smoking at
public parks and beaches.20 New Jersey’s legislature found that “[t]he prohibition of smoking at
public parks and beaches would better preserve and maintain the natural assets of this State by
12
Chapter 2011-108, L.O.F.
13
Florida Division of Recreation and Parks, Frequently Asked Questions, available at
http://prodenv.dep.state.fl.us/DrpOrpcr/StaticFiles/FAQ.pdf (last visited Oct 21, 2021).
14
Orange County Government Florida, Parks,
http://www.orangecountyfl.net/CultureParks/Parks.aspx?m=lstaz#.Xcwjw8GP6Uk (last visited Feb. 2, 2022).
15
Id.
16
City of Winter Park, Parks, https://cityofwinterpark.org/departments/parks-recreation/parks-playgrounds/parks/ (last
visited Feb. 2, 2022).
17
Florida Division of Recreation and Parks, Florida Outdoor Recreation Inventory, https://floridadep.gov/parks/florida-
outdoor-recreation-inventory (last visited Feb. 2, 2022).
18
Me. Rev. Stat. tit. 22, ss. 1580-E(2) and 1541(6). Under Maine law, “‘Smoking’ includes carrying or having in one's
possession a lighted or heated cigarette, cigar or pipe or a lighted or heated tobacco or plant product intended for human
consumption through inhalation whether natural or synthetic in any manner or in any form. ‘Smoking’ includes the use of an
electronic smoking device.”
19
Haw. Rev. Stat. Ann. § 184-4.5. “Smoking” is defined in the statute as “inhaling or exhaling upon, burning, or carrying any
lit cigarette, cigar, or pipe or the use of an electronic smoking device.”
20
Connecticut Office of Legislative Research, New Jersey Law Prohibiting Smoking at Public Parks and Beaches, available
at https://cga.ct.gov/2018/rpt/pdf/2018-R-0208.pdf (last visited Feb. 2, 2022). The law defines “smoking” as burning,
inhaling, or exhaling smoke from, or possessing a lighted cigar, cigarette, pipe, or any other substance that contains tobacco
or another matter that can be smoked. It also means inhaling or exhaling smoke or vapor from an electronic smoking device.
BILL: CS/CS/SB 224 Page 6
reducing litter and increasing fire safety in those areas, while lessening exposure to secondhand
tobacco smoke and providing for a more pleasant park or beach experience for the public[.]”21
Alaska law prohibits individuals from smoking outdoors “within 10 feet of playground
equipment located at a public or private school or a state or municipal park while children are
present.”22 Oklahoma law designates all buildings and other properties owned or operated by the
state as nonsmoking, effectively prohibiting smoking at state parks in Oklahoma, except for at
any designated outdoor smoking areas.23
Oregon’s Parks and Recreation Department prohibits smoking tobacco products at park
properties but provides exceptions, including smoking in ve