HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 105 Regulation of Smoking by Counties and Municipalities
SPONSOR(S): Fine and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 224
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Health & Human Services Committee 19 Y, 0 N, As CS Morris Calamas
SUMMARY ANALYSIS
The Florida Clean Indoor Air Act (FCIAA), implements Article X, Section 20 of the Florida Constitution. Article
X, Section 20 of the Florida Constitution prohibits a person from smoking tobacco or using a vapor-generating
electronic device in an enclosed indoor workplace, with certain exceptions. Current law preempts the
regulation of smoking and does not allow counties or municipalities to regulate smoking.
CS/HB 105 amends the FCIAA to allow counties and municipalities to restrict smoking within the boundaries of
any public beach or park they own.
Additionally, the bill authorizes counties and municipalities to further restrict smoking or vaping within 25 feet of
a public entrance or exit of a business located within the boundaries its jurisdiction, with exceptions.
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.
The bill has no fiscal impact on state government and an indeterminate, negative fiscal impact on local
governments.
The bill provides an effective date of July 1, 2022.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 2/17/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Smoking Regulation
While the Food and Drug Administration (FDA) regulates the manufacture, distribution, and marketing
of tobacco and vaping products, it does not regulate smoking or vaping in public places – leaving that
to the states.
In 1985, the Florida Legislature enacted the Florida Clean Indoor Air Act (FCIAA) 1 to protect the public
health, comfort, and environment by creating areas in public places and at public meetings that were
reasonably free from tobacco smoke. The FCIAA originally prohibited smoking2 in certain indoor public
places (e.g. government buildings, elevators, public transportation, hospitals, day care centers) or
common areas of an indoor public place (e.g. lobby, hallway, stairwell, restrooms), but did permit
designated smoking areas of specified indoor public places such as places of employment, retail
stores, indoor arenas, and restaurants.
Article X, Section 20 of the Florida Constitution
In the November 2002 General Election, Floridians voted to create Article X, Section 20 of the Florida
Constitution, titled “Workplaces without tobacco smoke,” which further restricted smoking indoors.3 The
purpose of this citizens’ initiative was to protect people from the health hazards of secondhand tobacco
smoke by prohibiting smoking in enclosed indoor workplaces, which are defined as:
Any place where one or more persons engage in work,4 and which place is
predominantly or totally bounded on all sides and above by physical barriers,
regardless of whether such barriers consist of or include uncovered openings,
screened or otherwise partially covered openings; or open or closed windows,
jalousies, doors, or the like.5
The provision also provided various other definitions and exceptions to the smoking ban, and required
the Legislature to implement the section in law by the following legislative session. Accordingly, in
2003, the Legislature amended the FCIAA to conform existing law and implement the constitutional
provision in a manner consistent with its broad purpose and stated terms. 6
In the November 2018 General Election, Floridians passed Amendment No. 9, which amended Article
X, Section 20 of the Florida Constitution, banning the use of vapor-generating electronic devices, or
vaping, in enclosed indoor workplaces, consistent with the prohibition on tobacco smoking. 7
The FCIAA prohibits smoking and vaping in an enclosed indoor workplace, unless it is a: 8
1 Ch. 386, Part II, F.S.; ch. 85-257, Laws of Fla.
2 “Smoking” is defined as “inhaling, exhaling, burning, carrying, or possessing any lighted tobacco product, including cigarett es, cigars,
pipe tobacco, and any other lighted product. S. 386.203(11), F.S.
3
Text available at: https://dos.elections.myflorida.com/initiatives/fulltext/pdf/34548 -1.pdf (last visited Feb. 11, 2022). The constitutional
provision does not preclude the Legislature from enacting more restrictive regulation of tobacco smoking.
4 “Work” is defined 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.” Fla. Const.,
art. X, s. 20. “Work” includes, without limitation, any such service performed by an employee, independent contractor, agent, partner,
proprietor, manager, officer, director, apprentice, trainee, associa te, servant, volunteer, and the like. The term does not include
noncommercial activities performed by members of a membership association. S. 386.203(17), F.S.
5 The smoking ban applies to all enclosed indoor workplaces regardless of whether work is occurr ing at any given time, Fla. Const., art.
X, s. 20.
6 Ch. 2003-398, Laws of Fla.
7 Text available at: p. 26-30 https://dos.myflorida.com/media/699824/constitutional-amendments-2018-general-election-english.pdf (last
visited Feb. 11, 2022). Note: Amendment No. 9 also amended article II, section 7 of the Florida Constitution to ban offshore oil and gas
drilling.
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Private residence that is not being used commercially to provide child care, adult care, or health
care, or any combination thereof;
Retail tobacco shop;
Designated smoking guest room in a public lodging establishment;
Stand-alone bar;9
Smoking cessation program or medical or scientific research; or
Customs smoking room in an airport.
However, an owner, lessee, or a person otherwise in control of an enclosed indoor workplace may
further prohibit or limit smoking or vaping therein.10
Additionally, no one under the age of 18 years old may smoke tobacco or vape in, on, or within 1,000
feet of a public or private grade school between 6 a.m. and midnight. 11 Violators of this provision are
subject to a citation from a law enforcement officer.12
Persons in charge of enclosed indoor workplaces are required to develop and implement smoking and
vaping prohibition policies in line with the FCIAA requirements. 13 Persons in charge of a smoking or
vaping cessation program, medical or scientific research, or an airport terminal that includes a customs
smoking room must all post signs clearly stating that smoking is only permitted in the designated
areas.14 Additionally, public transportation carriers in certain locations are required to make regular
announcements regarding the smoking and vaping prohibition. 15
The Department of Health (DOH) and the Department of Business and Professional Regulation (DBPR)
are each responsible for the enforcement of the FCIAA as it relates to their respective areas of
regulatory authority.16 If an enclosed indoor work place violates the FCIAA and does not correct the
violation within 30 days, DOH or DBPR may impose fines against the owner and pursue compliance in
circuit court, if necessary.17 Additionally, any person who violates the FCIAA by smoking or vaping in an
enclosed indoor work place commits a noncriminal violation and may be subject to a fine of up to $100
for the first violation and up to $500 for each subsequent violation. 18
Currently, the state preempts the regulation of smoking and does not allow counties or municipalities to
regulate smoking, except school districts may further restrict smoking on school district property. 19 The
state does not currently preempt the regulation of vaping. Thus, local governments impose more
restrictive regulation on the use of vapor-generated electronic devices.20
8
Ss. 386.204 and 386.2045, F.S. Additionally, s. 386.203(5), F.S., by definition of an “enclosed indoor workplace,” excludes any facility
owned or leased by and used exclusively for noncommercial activities performed by the members and guests of a membership
association, including social gatherings, meetings, dining, and dances, if no person or persons are engaged in work.
9 A stand-alone bar is a licensed premises that predominantly or totally serves alcoholic beverages and in which serving food is merely
incidental to the sale of alcohol. Also, it must not share a common entryway or indoor area with a business that predominantly serves
food during the hours the stand-alone bar is operating its business, s. 386.203(11), F.S. See also s. 561.695, F.S.
10
Fla. Const., art X, sec. 20(b).
11 S. 386.212(1), F.S.
12 S. 386.212(2), F.S.
13 S. 386.206(1), F.S.
14 S. 386.206(2)-(3), F.S.
15
S. 386.211, F.S.
16 Ss. 386.207(1) and 561.695, F.S. DBPR enforces the FCIAA in restaurants, bowling centers, dog tracks, horse tracks, bars, bil liards,
bingo halls (with food service), and civic/fraternal organizations. DOH enforces the FCIAA in all facilities not regulated by DBPR. Flori da
Department of Health, Florida Clean Indoor Air Act, Enforcement, http://www.floridahealth.gov/PROGRAMS-AND-
SERVICES/prevention/tobacco-free-florida/indoor-air-act/index.html (last visited Feb. 11, 2022).
17 S. 386.207(3), F.S.
18 S. 386.208, F.S.
19 S. 386.209, F.S.
20 Id.; “Vapor-generating electronic devices” means 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, including, but not limited to, an electronic cigarett e,
electronic cigar, electronic cigarillo, electronic pipe, or other similar device or product, any replacement cartridge for su ch device, and
any other container of a solution or other substance intended to be used with or within an electronic cigarette, electronic c igar,
electronic cigarillo, electronic pipe, or other similar device or product.
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County and Municipally Owned Parks
The Division of Recreation and Parks within the Florida Department of Environmental Protection
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 contains
information on more than 13,000 outdoor recreational facilities in Florida, the majority of which are
county and municipal parks.21
There are 67 county park systems and more than 400 municipal park systems in the state. 22 Such
parks provide a wide variety of activities to the public, including nature trails, bird watching, youth and
adult athletics, bike paths, horse trails, boat ramps, fishing piers, outdoor gyms, and outdoor
pavilions.23 For example, Orange County maintains and operates 118 county-owned parks, which
consist of a wide array of available activities and facilities.24 Additionally, municipalities within Orange
County also own and operate parks and outdoor recreational facilities. For example, the City of Winter
Park owns and operates 11 city parks, which offer similar recreational activities to county-owned
parks.25
Public Beaches
Florida has 825 miles of sandy coastline, attracting over 19 million tourists each year.26 A significant
portion of Florida’s beaches is publicly owned, including federally-owned areas managed by the
National Park Service, parts of Florida’s 175 state parks, and the many beaches owned and managed
by local governments on the coast.27 In general, access to these beaches is free through the numerous
public access points along the coast however; some state parks, counties and municipalities charge an
access fee.
Health Concerns
In 2021, an estimated 15.5 percent of the adults in Florida were tobacco smokers.28 Tobacco smoke
contains over 7,000 chemicals, including hundreds that are toxic and up to 69 that are known to cause
cancer.29 More than 480,000 deaths annually in the United States are caused by cigarette smoking,
with exposure to secondhand smoke causing an estimated 41,000 deaths each year.30 Secondhand
smoke is generally defined as smoke from burning tobacco products or smoke that is exhaled by a
21 Florida Division of Recreation and Parks, Florida Outdoor Recreation Inventory, available at: https://floridadep.gov/parks/florida-
outdoor-recreation-inventory (last visited Feb. 11, 2022)
22 Florida Department of Environmental Protection, Division of Recreation and Parks, Frequently Asked Questions,
https://prodenv.dep.state.fl.us/DrpOrpcr/StaticFiles/FAQ.pdf (last visited Feb. 11, 2022).
23 Id.
24 Orange County Government Florida, Parks, http://www.orangecountyfl.net/CultureParks/Parks.aspx (last visited Feb. 11, 2022).
25 City of Winter Park, Parks, https://cityofwinterpark.org/departments/parks-recreation/parks-playgrounds/parks/ (last visited Feb. 11,
2022).
26 Department of Environmental Protection, Beaches, https://floridadep.gov/water/beaches (last visited at Feb. 11, 2022).
27
National Park Service, Canaveral National Seashore, Natural Features & Ecosystems,
https://www.nps.gov/cana/learn/nature/naturalfeaturesandecosystems.htm (last visited Feb. 11, 2022). Canaveral National Seashore’s
24 miles of undeveloped beach is the longest such stretch on the east coast of Florida; National Park Service, Gulf Islands N ational
Seashore, Things To Do, https://www.nps.gov/guis/planyourvisit/things2do.htm (last visited Feb. 11, 2022). Gulf Islands National
Seashore stretches for 160 miles along the coasts of both Florida and Mississippi; DEP, Beaches and Coasts at Florida State Parks,
https://www.floridastateparks.org/learn/beaches-and-coasts-florida-state-parks (last visited Feb. 11, 2022). Florida’s state parks include
100 miles of beaches; DEP, Map of Florida’s Coastal Counties, https://floridadep.gov/fco/fcmp/documents/map-floridas-coastal-
counties (last visited Feb. 11, 2022); Beaches in coastal counties are important for tourism and Florida’s “brand”; DEP, Florida Coastal
Management Program, Final Assessment and Strategies, FY 2016 – FY 2020, 30 (2015) availab le at
https://floridadep.gov/sites/default/files/FCMP_FY2016-20_Assessment.pdf (last
visited Feb. 11, 2022). Based on shoreline access sites, there are approximately 439 miles of public saltwater beach in Florida.
28 United Health Foundation, America’s Health Rankings, Annual Report,
https://www.americashealthrankings.org/explore/annual/measure/Smoking/state/FL (last visited Feb. 11, 2022).
29 Id.; U.S. Department of Health and Human Services, The Health Consequences of Smoking—50 Years of Progress: A Report of the
Surgeon General, 148 (2014), https://www.surgeongeneral.gov/library/reports/50-years-of-progress/full-report.pdf (last visited Feb. 11,
2022).
30 Centers for Disease Control and Prevention, Tob acco-Related Mortality,
https://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/tobacco_related_mortality/index.htm (last visited Feb. 11, 2022).
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tobacco smoker.31 Exposure to secondhand smoke can cause numerous health problems and has
been causally linked to cancer and other fatal diseases.32 Studies suggest that secondhand smoke in
crowded outdoor areas can cause concentrations of air contaminants comparable to those caused by
indoor smoking.33
Florida Businesses
There are currently over 3 million active business entities in Florida,34 approximately 2.8 of which are
small businesses.35 Each county and city establishes its own business zoning requirements, which
regulate the features of a building, such as height and distance from the street.
Effect of Proposed Changes
Smoking Regulation
CS/HB 105 authorizes counties and municipalities to further restrict smoking within the boundaries of
any public beaches and public parks they own. Municipalities may further restrict smoking within the
boundaries of public beaches and public parks that are within their jurisdiction, but owned by the
county, unless such restriction conflicts with county ordinance.
Additionally, the bill authorizes counties and municipalities to further restrict smoking or vaping within
25 feet of a public entrance or exit of a business located within the boundaries its jurisdiction, except:
Stand-alone bars;
Retail tobacco shops;
Vapor-generating electronic device retailers; or
Any other business that derives no more than 10 percent of its gross revenue from food sales
consumed on premises.
The bil