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 Community Affairs
BILL: SB 224
INTRODUCER: Senators Gruters and Bradley
SUBJECT: Regulation of Smoking in Public Places
DATE: October 19, 2021
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hunter Ryon CA Favorable
2. EN
3. RC
I. Summary:
SB 224 amends the “Florida Clean Indoor Air Act” in part II of ch. 386, F.S., 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.
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 also prohibits smoking within the boundaries of a state park and 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 takes effect on July 1, 2022.
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
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 “any
1
Section 386.202, F.S.
REVISED: BILL: SB 224 Page 2
place 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; provided for administrative
enforcement, and required and authorized 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
cigarillos, electronic pipes, and other similar devices or products, replacement cartridge 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;
2
Amendment 9 also bans offshore oil and natural gas drilling on lands beneath state waters. See FLA. CONST. art II, s. 7. BILL: SB 224 Page 3
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 the DOH and the 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.
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
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.
8
See ch. 2019-14, Laws of Fla. BILL: SB 224 Page 4
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. 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.
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.
12
Chapter 2011-108, L.O.F. BILL: SB 224 Page 5
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 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
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.
18
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) or real property that may come
under the division’s jurisdiction regardless of its designation.
19
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.
20
The statutory law governing
Florida’s state parks is primarily contained in ch. 258, F.S., State Parks and Preserves.
Requirements and prohibitions under ch. 258, F.S., are enforced by DEP and the Fish and
Wildlife Conservation Commission’s Division of Law Enforcement.
21
The Division of Law
Enforcement regulations contain a rule about fires which prohibits disposing of smoking
materials within any park except in designated receptacles.
22
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, available at:
http://www.orangecountyfl.net/CultureParks/Parks.aspx?m=lstaz#.Xcwjw8GP6Uk (last visited Oct 21, 2021).
15
Id.
16
City of Winter Park, Parks, available at: https://cityofwinterpark.org/departments/parks-recreation/parks-
playgrounds/parks/ (last visited Oct 21, 2021).
17
Florida Division of Recreation and Parks, Florida Outdoor Recreation Inventory, available at:
https://floridadep.gov/parks/florida-outdoor-recreation-inventory (last visited Oct 21, 2021).
18
DEP, Division of Recreation and Parks, available at: https://floridadep.gov/parks (last visited Oct 21, 2021).
19
Fla. Admin. Code R. 62D-2.013(1).
20
Id.
21
Section 258.601, F.S.
22
Fla. Admin. Code R. 62D-2.013(3); National Fire Protection Association, Public Education, Smoking, available at:
https://www.nfpa.org/Public-Education/By-topic/Top-causes-of-fire/Smoking (last visited Oct 21, 2021). The term “smoking
materials” is commonly used to refer to cigarettes, pipes, and cigars. BILL: SB 224 Page 6
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.”
23
In 2015, Hawaii passed a
law prohibiting smoking within its state park system.
24
In 2018, New Jersey banned smoking at
public parks and beaches.
25
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[.]”
26
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.”
27
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.
28
Oregon’s Parks and Recreation Department prohibits smoking tobacco products at park
properties but provides exceptions, including smoking in vehicles and at designated campsites.
29
Outside of Florida, many local governments in the United States have restricted or prohibited
smoking in public parks.
30
Health and Environmental Concerns
In 2019, an estimated 14.8 percent of the adults in Florida were tobacco smokers.
31
Tobacco
smoke contains over 7,000 chemicals, including hundreds that are toxic and up to 69 that are
known to cause cancer.
32
Exposure to secondhand smoke can cause numerous health problems
23
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.”
24
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.”
25
2018 NJ Sess. Law Serv. Ch. 64, S. 2534 (2018), available at: https://www.njleg.state.nj.us/2018/Bills/PL18/64_.PDF (last
visited Oct 21, 2021). The law defines “smoking” as “the burning of, inhaling from, exhaling the smoke from, or the
possession of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco or any other matter that
can be smoked, or the inhaling or exhaling of smoke or vapor from an electronic smoking device.”
26
N.J. Stat. Ann. § 26:3D-56(e).
27
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.”
28
Okla. Stat. Ann. tit. 21, § 1247(B).
29
Or. Admin. R. 736-010-0040(8)(j).
30
American Nonsmokers’ Rights Foundation, Municipalities with Smokefree Park Laws (2017), available at: https://no-
smoke.org/wp-content/uploads/pdf/SmokefreeParks.pdf (last visited Oct 21, 2021). This document lists local governments in
the U.S. that have created laws that restrict or prohibit smoking in public parks within their jurisdiction.
31
United Health Foundation, America’s Health Rankings, Annual Report, available at:
https://www.americashealthrankings.org/explore/annual/measure/Smoking/state/FL (last visited Jan. 13, 2021).
32
Id.; National Cancer Institute available at https://www.cancer.gov/about-cancer/causes-prevention/risk/tobacco/cessation-
fact-sheet (last visited Oct 21, 2021) BILL: SB 224 Page 7
and has been causally linked to cancer and other fatal diseases.
33
Secondhand smoke is generally
defined as smoke from burning tobacco products or smoke that is exhaled by a tobacco smoker.
34
Studies suggest that secondhand smoke in crowded outdoor areas can cause concentrations of air
contaminants comparable to those caused by indoor smoking.
35
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.
36
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.
37
Furthermore, cigarette butts contain hazardous
substances, and studies have shown these substances to be potentially toxic to animals.
38
Under Florida law, it is illegal to discard any tobacco product as litter.
39
Discarding a cigarette
butt is a noncriminal infraction, punishable by a penalty of $100 in addition to any court-ordered
litter pickup or other commensurate labor.
40
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.
41
Florida
law requires that cigarettes sold in the state meet standards for reduced ignition propensity.
42
In
addition to the risk of fires in buildings, Florida generally has a year-round risk of wildfire.
43
Cigarettes or other smoking materials can cause wildfires when discarded as litter. Data from the
33
Center for Disease Control and Prevention, Secondhand Smoke (SHS) Facts, available at:
https://www.cdc.gov/tobacco/data_statistics/fact_sheets/secondhand_smoke/general_facts/index.htm (last visited Oct 21,
2021).
34
Center for Disease Control and Prevention, Secondhand Smoke (SHS) Facts, available at:
https://www.cdc.gov/tobacco/data_statistics/fact_sheets/secondhand_smoke/general_facts/index.htm (last visited Oct 21,
2021).
35
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 Oct 12, 2021); European Respiratory Journal Sep 2016, 48 (3) 918-920 available at
https://erj.ersjournals.com/content/48/3/918 (last visited Oct 21, 2021)
36
NOAA, National Ocean Service, What Is the Most Common Form of Ocean Litter? available at:
https://oceanservice.noaa.gov/facts/most-common-ocean-litter.html (last visited Oct 21, 2021)
37
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 Oct 21, 2021)
38
Wenjau Lee and Chih Chun Lee, Developmental Toxicity of Cigarette Butts - An Underdeveloped Issue, 113
ECOTOXICOLOGY AND ENVIRON. SAFETY 362-368, 362–363, 367 (2015), available at:
http://tweb.cjcu.edu.tw/journal/2015_03_04_11_23_24.114.pdf (last visited Oct 21, 2021).
39
Section 403.413(2)(d) and (f), (4), F.S.
40
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.
41
Section 633.142(2)(a), F.S.
42
Section 633.142, F.S.
43
Florida Department of Agriculture and Consumer Services, Wildland Fire, Prevention, available at:
https://www.fdacs.gov/Forest-Wildfire/Wildland-Fire (last visited Oct 21, 2021). BILL: SB 224 Page 8
United States Forest Service shows that a significant number of wildfires were started by
“smoking” between 1992 and 2018.
44
III. Effect of Proposed Changes:
Section 1 changes the title of Part II of ch. 386, F.S., from “Indoor Air: Smoking and Vaping” to
“Smoking and Vaping.”
Section 2 amends s. 386.201, F.S., to provided that the short title of Part II of ch. 386, F.S., may
be cited as the “Florida Clean Air Act,” removing the reference to indoor air.
Section 3 amends s. 386.209, F.S., to provide counties and municipalities the authority to further
restrict smoking within the boundaries of any public beaches and public parks they own. Given
the existing definition of “smoking” in ch. 386, F.S., counties and municipalities may restrict the
ability for any person to inhale, exhale, burn, carry, or possess any lighted tobacco product,
including cigarettes, cigars, pipe tobacco, or any other lighted tobacco product, within parks and
beaches owned by the county or municipality. The bill allows municipalities to further restrict
smoking within county owned beaches and parks located within the municipality’s jurisdiction if
doing so would not conflict with a county ordinance.
Although this bill specifically relates to “smoking,” counties and municipalities are currently
allowed to impose more restrictive regulation on the use of vapor-generating devices under s.
386.209, F.S.
Section 4 creates s. 386.2095, F.S., which prohibits smoking within the boundaries of a state
park.
Section 5 amends s. 381.84, F.S., to conform the reference to the short title of Part II of ch. 386,
F.S., to changes made by the bill.
Section 6 amends s. 386.211, F.S., to conform references to the short title of Part II of ch. 386,
F.S., to changes made by the bill.
Section 7 provides an effective date of July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
44
Short, Karen C. 2021. Spatial wildfire occurrence data for the United States, 1992-2018), available at:
https://www.fs.usda.gov/rds/archive/Catalog/RDS-2013-0009.5 (last visited Jan. 13, 2021). The data can be viewed by
clicking on the file labeled “RDS-2018-0009.5_ACCDB.zip,” and viewing the column labeled “STAT_CAUSE_DESCR.” BILL: SB 224 Page 9
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Visitors to state, county, or municipal parks who violate smoking restrictions imposed by
a county or municipality may be subject to the applicable fines or civil penalty for such
violations.
C. Government Sector Impact:
Counties and municipalities that opt to restrict smoking within the boundaries of public
parks may incur indeterminate expenses related to enacting and enforcing such
restrictions.
To the extent any imposed smoking restrictions deter or encourage visitation of county
and municipal beaches and parks, local governments may experience fluctuation in
revenues generated by any fees for beach and park admittance.
State parks may see an increase in the number of fines that are assessed for violations of
the smoking prohibition. Such fines are paid to the FWC and deposited in the State Game
Trust Fund, pursuant to s. 258.008(1), F.S. Thus, the bill may increase revenue for the
FWC’s State Game Trust Fund.
The DEP may incur costs to adopt rules and implement the prohibition of smoking in
state parks. The DEP and the FWC’s Division of Law Enforcement may incur additional
costs to enforce the prohibition of smoking in state parks.
VI. Technical Deficiencies:
None. BILL: SB 224 Page 10
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 386.201, 386.209,
386.2095, 381.84, and 386.211.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.