Bill Summary – FastDemocracy

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 Environment and Natural Resources
BILL:                SB 1576
INTRODUCER:          Senator Rodriguez
SUBJECT:             Prohibition of Smoking and Vaping in State Parks
DATE:                January 16, 2024                REVISED:
             ANALYST                       STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Rogers                                Rogers                                EN              Favorable
2.                                                                            AEG
3.                                                                             FP
    I.     Summary:
           SB 1576 prohibits smoking and vaping in state parks.
           Under the bill, the Department of Health is required to conspicuously post at each entrance of
           each state park signs stating that smoking and vaping are prohibited within the boundaries of the
           state park.
           Violating this prohibition would be a noncriminal violation punishable by a fine of not more than
           $100 for the first violation and not more than $500 for each subsequent violation.
    II.    Present Situation:
           Florida Constitution
           Tobacco Smoking and Vaping
           Article X, section 20 of the Florida Constitution is a Florida health initiative to protect people
           from the health hazards of second-hand tobacco smoke and vapor. It which prohibits tobacco
           smoking and the use of vapor-generating electronic devices in enclosed indoor workplaces. The
           constitutional amendment directed the Legislature to implement the “amendment in a manner
           consistent with its broad purpose and stated terms.”1 The amendment further provides that the
           Legislature may enact legislation more restrictive of tobacco smoking than that provided in the
           Florida Constitution.
           The Florida Constitution contains several relevant definitions including:
            Smoking means inhaling, exhaling, burning, carrying, or possessing any lighted tobacco
              product, including cigarettes, cigars, pipe tobacco, and any other lighted tobacco product.
1
    FLA. CONST. art. X, s. 20.
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            Vapor-generating electronic device 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.
         Florida’s Clean Indoor Air Act
         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 Article X,
         section 20 of the State Constitution.2
         Section 386.204, F.S., prohibits smoking in an enclosed indoor workplace unless the act provides
         an exception. The exceptions include 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 retail vape shops; and retail tobacco shops.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.
         Smoking Prohibited Near School Property
         Section 386.212(1), F.S., prohibits smoking or vaping by any person under 21 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.
2
  Section 386.202, F.S.
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.
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         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.8 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.9
         Regulation of Smoking Preempted to State
         Section 386.209, F.S., expressly preempts regulation of smoking to the state and supersedes any
         municipal or county ordinance on the subject. However, counties and municipalities may further
         restrict smoking within the boundaries of any public beaches and public parks that they own,
         except that they may not further restrict the smoking of unfiltered cigars. A municipality may
         further restrict smoking within the boundaries of public beaches and public parks that are within
         its jurisdiction but are owned by the county, unless such restriction conflicts with a county
         ordinance, except that they may not further restrict the smoking of unfiltered cigars. School
         districts may further restrict smoking by persons on school district property. County or municipal
         ordinances may impose more restrictive regulations on the use of vapor-generating devices.10
         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.
         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.
         Florida’s State Parks
         Florida’s award-winning state park system contains 175 state parks, including nearly 800,000
         acres of state lands and 100 miles of sandy beaches.13 Florida’s state parks include all real
         property in the state of Florida under the jurisdiction of the Department of Environmental
         Protection’s (DEP) Division of Recreation and Parks (division).14 There are numerous
         designations in Florida’s state park system, and examples include state park, state preserve,
         historic site, archaeological site, botanical site, museum, and culture center.15 The statutory law
         governing Florida’s state parks is primarily contained in ch. 258, F.S., State Parks and Preserves.
8
  Section 386.212(3), F.S.
9
  Section 386.212(4), F.S.
10
   Section 386.209, 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.
12
   Chapter 2011-108, L.O.F.
13
   DEP, Division of Recreation and Parks, https://floridadep.gov/parks (last visited Jan. 10, 2024).
14
   Fla. Admin. Code R. 62D-2.013(1).
15
   Id.
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         Requirements and prohibitions under ch. 258, F.S., are enforced by DEP and the Fish and
         Wildlife Conservation Commission’s Division of Law Enforcement.16 DEP’s park rules prohibit
         disposing of smoking materials within any park except in designated receptacles.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 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 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 vehicles and at designated campsites.24
         Outside of Florida, many local governments in the United States have restricted or prohibited
         smoking in public parks.25
16
   Section 258.601, F.S.
17
   Fla. Admin. Code R. 62D-2.013(3).
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
   NJ ST 26:3D-58; 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.
21
   N.J. Stat. Ann. § 26:3D-56(e).
22
   Alaska Stat. Ann. ss. 18.35.301(c)(1) and 18.35.399(12). Alaska law defines “smoking” as “using an e-cigarette or other
oral smoking device or inhaling, exhaling, burning, or carrying a lighted or heated cigar, cigarette, pipe, or tobacco or plant
product intended for inhalation.”
23
   Okla. Stat. Ann. tit. 21, § 1247(B).
24
   Or. Admin. R. 736-010-0040(8)(j).
25
   American Nonsmokers’ Rights Foundation, Municipalities with Smokefree Park Laws (2017), https://no-smoke.org/wp-
content/uploads/pdf/SmokefreeParks.pdf (last visited Jan. 11, 2024). This document lists local governments in the U.S. that
have created laws that restrict or prohibit smoking in public parks within their jurisdiction.
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         Health and Environmental Concerns
         An estimated 11.3 percent of the adults in Florida are tobacco smokers.26 Tobacco smoke
         contains over 7,000 chemicals, including hundreds that are toxic and up to 69 that are known to
         cause cancer.27 Exposure to secondhand smoke can cause numerous health problems and has
         been causally linked to cancer and other fatal diseases.28 Secondhand smoke is generally defined
         as smoke from burning tobacco products or smoke that is exhaled by a tobacco smoker.29 Studies
         suggest that secondhand smoke in crowded outdoor areas can cause concentrations of air
         contaminants comparable to those caused by indoor smoking.30
         Another significant issue with tobacco smoking in natural areas is litter consisting of used
         cigarette filters, commonly known as cigarette butts. Cigarette butts are typically comprised
         mainly of cellulose acetate, a plastic-like material that can take years to decompose.31 It is
         estimated that, of the roughly 6 trillion cigarettes smoked annually worldwide, up to two-thirds
         of the cigarette butts are discarded as litter.32
         Under Florida law, it is illegal to discard any tobacco product as litter.33 Discarding a cigarette
         butt is a noncriminal infraction, punishable by a penalty of $150 in addition to any court-ordered
         litter pickup or other commensurate labor.34
         Fires are another significant issue regarding smoking tobacco in public parks. The Legislature
         has found that cigarettes are the leading cause of fire deaths in Florida and the nation.35 Florida
         law requires that cigarettes sold in the state meet standards for reduced ignition propensity.36 In
         addition to the risk of fires in buildings, Florida generally has a year-round risk of wildfire.37
26
   United Health Foundation, America’s Health Rankings, Annual Report,
https://www.americashealthrankings.org/explore/annual/measure/Smoking/state/FL (last visited Jan. 11, 2024).
27
   Id.; National Cancer Institute, Harms of Cigarette Smoking and Health Benefits of Quitting available at
https://www.cancer.gov/about-cancer/causes-prevention/risk/tobacco/cessation-fact-sheet (last visited Jan. 11, 2024).
28
   Center for Disease Control and Prevention, Secondhand Smoke (SHS) Facts,
https://www.cdc.gov/tobacco/data_statistics/fact_sheets/secondhand_smoke/general_facts/index.htm (last visited Jan. 11,
2024).
29
   Id.
30
   Nipapun Kungskulniti et al., Secondhand Smoke Point-Source Exposures Assessed By Particulate Matter At Two Popular
Public Beaches in Thailand, 40 J. Public Health 3, 527–532 (2017), available at
https://academic.oup.com/jpubhealth/article/40/3/527/4110319?guestAccessKey=5947c328-fd75-4b6c-acfe-28f989c4c639
(last visited Jan. 11, 2024); Ario Ruprecht, et. al, Outdoor second-hand cigarette smoke significantly affects air quality,
European Respiratory Journal, 48 (3) 918-920, (Sept. 2016) available at https://erj.ersjournals.com/content/48/3/918 (last
visited Jan. 11, 2024).
31
   NOAA, National Ocean Service, What Is the Most Common Form of Ocean Litter?,
https://oceanservice.noaa.gov/facts/most-common-ocean-litter.html (last visited Jan. 11, 2024).
32
   World Health Organization, Tobacco and Its Environmental Impact: An Overview, 24 (2017) available at
https://apps.who.int/iris/bitstream/handle/10665/255574/9789241512497-
eng.pdf;jsessionid=8E8DFDA81D9C76448B2C9EAD445BC784?sequence=1 (last visited Jan. 11, 2024).
33
   Section 403.413(2)(d) and (f), (4), F.S.
34
   Section 403.413(6)(a), F.S. Littering is a noncriminal infraction if the litter does not exceed 15 pounds in weight or 27
cubic feet in volume.
35
   Section 633.142(2)(a), F.S.
36
   Section 633.142, F.S.
37
   Florida Department of Agriculture and Consumer Services, Wildland Fire, Prevention, https://www.fdacs.gov/Forest-
Wildfire/Wildland-Fire (last visited Jan. 11, 2024).
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         Cigarettes or other smoking materials can cause wildfires when discarded as litter. Data from the
         U.S. Forest Service shows that a significant number of wildfires were started by “smoking”
         between 1992 and 2018.38
III.     Effect of Proposed Changes:
         Section 1 of the bill creates s. 386.2095, F.S., to prohibit smoking and vaping in state parks.
         The Department of Health must conspicuously post at each entrance of each state park signs
         stating that smoking and vaping are prohibited within the boundaries of the state park. The signs
         must be clearly legible in a font size of at least 1 inch in height and include the words
         “SMOKING OR VAPING