HB 1757 2003
1	A bill to be entitled
2	An act relating to the Florida Clean Indoor Air Act;
3	revising various provisions of pt. II of ch. 386, F.S.,
4	the Florida Clean Indoor Air Act, for the purpose of
5	implementing s. 20, Art. X of the State Constitution;
6	amending s. 386.201, F.S.; providing a popular name;
7	amending s. 386.202, F.S.; revising legislative intent;
8	amending s. 386.203, F.S.; providing definitions; amending
9	s. 386.204, F.S.; revising exceptions to the prohibition
10	on smoking in an enclosed indoor workplace; amending s.
11	386.206, F.S.; providing for continuation of requirements
12	with respect to the posting of signs stating that smoking
13	is not permitted in an indoor workplace; providing for
14	expiration of such provisions; requiring the proprietor or
15	person in charge of an enclosed indoor workplace to
16	develop and implement a policy regarding smoking
17	prohibitions; amending s. 386.207, F.S., relating to
18	administration, enforcement, and civil penalties; removing
19	a cross reference, to conform; eliminating exemptions;
20	amending s. 386.208, F.S.; clarifying language; reenacting
21	s. 386.209, F.S., which preempts regulation of smoking to
22	the state; amending s. 386.211, F.S., relating to public
23	announcements in mass transportation terminals, to
24	conform; reenacting s. 386.212, F.S., which prohibits any
25	person under 18 years of age from smoking tobacco in, on,
26	or within 1,000 feet of the real property comprising a
27	public or private elementary, middle, or secondary school
28	and provides penalties therefor; repealing s. 386.205,
29	F.S., relating to designation of smoking areas; providing
30	severability; providing an effective date.
31
32	Be It Enacted by the Legislature of the State of Florida:
33
34	Section 1. Section 386.201, Florida Statutes, is amended
35	to read:
36	386.201 Popular nameShort title.--This part may be cited
37	by the popular nameasthe "Florida Clean Indoor Air Act."
38	Section 2. Section 386.202, Florida Statutes, is amended
39	to read:
40	386.202 Legislative intent.--The purpose of this part is
41	to protect individuals from the public health hazards of second-
42	hand, comfort, and environment by creating areas in public
43	places and at public meetings that are reasonably free from
44	tobacco smoke and to implement s. 20, Art. X of the State
45	Constitutionby providing a uniform statewide maximum code. This
46	part shall not be interpreted to require the designation of
47	smoking areas. However, it is the intent of the Legislature to
48	discourage the designation of any area within a government
49	building as a smoking area.
50	Section 3. Section 386.203, Florida Statutes, is amended
51	to read:
52	386.203 Definitions.--As used in this part:
53	(1)(4) "Smoking" means inhaling, exhaling, burning,
54	carrying, or possessing anypossession of a lighted tobacco
55	product, including cigarettes, cigars, pipe tobacco, and
56	cigarette, lighted cigar, lighted pipe, orany other lighted
57	tobacco product.
58	(2) “Second-hand smoke,” also known as environmental
59	tobacco smoke [ETS], means smoke emitted from lighted,
60	smoldering, or burning tobacco when the smoker is not inhaling;
61	smoke emitted at the mouthpiece during puff drawing; and smoke
62	exhaled by the smoker.
63	(3) “Work” means any person's providing any employment or
64	employment-type service for or at the request of another
65	individual or individuals or any public or private entity,
66	whether for compensation or not, whether full or part time,
67	whether legally or not. "Work" includes, without limitation, any
68	such service performed by an employee, independent contractor,
69	agent, partner, proprietor, manager, officer, director,
70	apprentice, trainee, associate, servant, volunteer, and the
71	like.
72	(4) "Enclosed indoor workplace" means any place where one
73	or more persons engages in work, and which place is
74	predominantly or totally bounded on all sides and above by
75	physical barriers, regardless of whether such barriers consist
76	of or include uncovered openings, screened or otherwise
77	partially covered openings; or open or closed windows,
78	jalousies, doors, or the like. This section applies to all such
79	enclosed indoor workplaces without regard to whether work is
80	occurring at any given time.
81	(5) "Commercial" use of a private residence means any time
82	during which the owner, lessee, or other person occupying or
83	controlling the use of the private residence is furnishing in
84	the private residence, or causing or allowing to be furnished in
85	the private residence, child care, adult care, or health care,
86	or any combination thereof, and receiving or expecting to
87	receive compensation therefor.
88	(6) "Retail tobacco shop" means any enclosed indoor
89	workplace dedicated to or predominantly for the retail sale of
90	tobacco, tobacco products, and accessories for such products, in
91	which the sale of other products or services is merely
92	incidental. Any enclosed indoor workplace of a business that
93	manufactures, imports, or distributes tobacco products or of a
94	tobacco leaf dealer is a business dedicated to or predominantly
95	for the retail sale of tobacco and tobacco products when, as a
96	necessary and integral part of the process of making,
97	manufacturing, importing, or distributing a tobacco product for
98	the eventual retail sale of such tobacco or tobacco product,
99	tobacco is heated, burned or smoked or a lighted tobacco product
100	is tested.
101	(7) "Designated smoking guest rooms at public lodging
102	establishments" means the sleeping rooms and directly associated
103	private areas, such as bathrooms, living rooms, and kitchen
104	areas, if any, rented to guests for their exclusive transient
105	occupancy in public lodging establishments, including hotels,
106	motels, resort condominiums, transient apartments, transient
107	lodging establishments, rooming houses, boarding houses, resort
108	dwellings, bed and breakfast inns, and the like; and designated
109	by the person or persons having management authority over such
110	public lodging establishment as rooms in which smoking may be
111	permitted.
112	(1) "Public place" means the following enclosed, indoor
113	areas used by the general public:
114	(a) Government buildings;
115	(b) Public means of mass transportation and their
116	associated terminals not subject to federal smoking regulation;
117	(c) Elevators;
118	(d) Hospitals;
119	(e) Nursing homes;
120	(f) Educational facilities;
121	(g) Public school buses;
122	(h) Libraries;
123	(i) Courtrooms;
124	(j) Jury waiting and deliberation rooms;
125	(k) Museums;
126	(l) Theaters;
127	(m) Auditoriums;
128	(n) Arenas;
129	(o) Recreational facilities;
130	(p) Restaurants;
131	(q) Retail stores, except a retail store the primary
132	business of which is the sale of tobacco or tobacco related
133	products;
134	(r) Grocery stores;
135	(s) Places of employment;
136	(t) Health care facilities;
137	(u) Day care centers; and
138	(v) Common areas of retirement homes and condominiums.
139	(2) "Government building" means any building or any
140	portion of any building owned by or leased to the state or any
141	political subdivision thereof and used for governmental
142	purposes.
143	(3) "Public meeting" means all meetings open to the
144	public, including meetings of homeowner, condominium, or renter
145	or tenant associations unless such meetings are held in a
146	private residence.
147	(5) "Smoking area" means any designated area meeting the
148	requirements of ss. 386.205 and 386.206.
149	(6) "Common area" means any hallway, corridor, lobby,
150	aisle, water fountain area, restroom, stairwell, entryway, or
151	conference room in any public place.
152	(8)(7)"Department" means the Department of Health.
153	(9)(8)"Division" means the Division of Hotels and
154	Restaurants of the Department of Business and Professional
155	Regulation.
156	Section 4. Section 386.204, Florida Statutes, is amended
157	to read:
158	386.204 Prohibition; exceptions.--A person may not smoke
159	in an enclosed indoor workplace, except that smoking may be
160	permitted in:a public place or at a public meeting except in
161	designated smoking areas. These prohibitions do not apply in
162	cases in which an entire room or hall is used for a private
163	function and seating arrangements are under the control of the
164	sponsor of the function and not of the proprietor or person in
165	charge of the room or hall.
166	(1) Private residences when not being used for commercial
167	purposes as defined in s. 386.203(5).
168	(2) Retail tobacco shops as defined in s. 386.203(6).
169	(3) Designated smoking guest rooms at public lodging
170	establishments as defined in s. 386.203(7).
171	Section 5. Section 386.206, Florida Statutes, is amended
172	to read:
173	386.206 Posting of signs; requiring policies.--
174	(1) The person in charge of an enclosed indoor workplace
175	that prior to adoption of s. 20, Art. X of the State
176	Constitution was required to post signs under the requirements
177	of this section must continue toa public place shall
178	conspicuously post, or cause to be posted, in any area
179	designated as a smoking area signs stating that smoking is not
180	permitted in the indoor workplacesuch area. Each sign posted
181	pursuant to this section mustshallhave letters of reasonable
182	size which can be easily read. The color, design, and precise
183	place of posting of such signs shall be left to the discretion
184	of the person in charge of the premises. In order to increase
185	public awareness, the person in charge of a public place may, at
186	his or her discretion, also post "NO SMOKING EXCEPT IN
187	DESIGNATED AREAS" signs as appropriate.
188	(2) The proprietor or other person in charge of an
189	enclosed indoor workplace must develop and implement a policy
190	regarding the smoking prohibitions established in this part.
191	The policy may include, but is not limited to, procedures to be
192	taken when the proprietor or other person in charge witnesses or
193	is made aware of a violation of s. 386.204 in the enclosed
194	indoor workplace and must include a policy which prohibits an
195	employee from smoking in the enclosed indoor workplace.
196	(3) The provisions of subsection (1) shall expire on July
197	1, 2005.
198	Section 6. Section 386.207, Florida Statutes, is amended
199	to read:
200	386.207 Administration; enforcement; civil penalties;
201	exemptions.--
202	(1) The department or the division shall enforce s.ss.
203	386.205 and386.206 and to implement such enforcement shall
204	adopt, in consultation with the State Fire Marshal, rules
205	specifying procedures to be followed by enforcement personnel in
206	investigating complaints and notifying alleged violators, rules
207	defining types of cases for which exemptions may be granted,and
208	rules specifying procedures by which appeals may be taken by
209	aggrieved parties.
210	(2) Public agencies responsible for the management and
211	maintenance of government buildings shall report observed
212	violations to the department or division. The State Fire Marshal
213	shall report to the department or division observed violations
214	of s.ss. 386.205 and386.206 found during its periodic
215	inspections of enclosed indoor workplacesconducted pursuant to
216	its regulatory authority. The department or the division, upon
217	notification of observed violations of s.ss. 386.205 and
218	386.206, shall issue to the proprietor or other person in charge
219	of such enclosed indoor workplacepublic placea notice to
220	comply with s.ss. 386.205 and386.206. If such person fails to
221	comply within 30 days after receipt of such notice, the
222	department or the division shall assess a civil penalty against
223	him or her not to exceed $100 for the first violation and not to
224	exceed $500 for each subsequent violation. The imposition of
225	such fine shall be in accordance with the provisions of chapter
226	120. If a person refuses to comply with s.ss. 386.205 and
227	386.206, after having been assessed such penalty, the department
228	or the division may file a complaint in the circuit court of the
229	county in which such public place is located to require
230	compliance.
231	(3) A person may request an exemption from ss. 386.205 and
232	386.206 by applying to the department or the division. The
233	department or the division may grant exemptions on a case-by-
234	case basis where it determines that substantial good faith
235	efforts have been made to comply or that emergency or
236	extraordinary circumstances exist.
237	(3)(4)All fine moneys collected pursuant to this section
238	shall be used by the department for children's medical services
239	programs pursuant to the provisions of part I of chapter 391.
240	Section 7. Section 386.208, Florida Statutes, is amended
241	to read:
242	386.208 Penalties.--Any person who violates s. 386.204
243	commits a noncriminal violation as definedprovided forin s.
244	775.08(3), punishable by a fine of not more than $100 for the
245	first violation and not more than $500 for each subsequent
246	violation. Jurisdiction shall be with the appropriate county
247	court.
248	Section 8. Section 386.209, Florida Statutes, is reenacted
249	to read:
250	386.209 Regulation of smoking preempted to state.--This
251	part expressly preempts regulation of smoking to the state and
252	supersedes any municipal or county ordinance on the subject.
253	Section 9. Section 386.211, Florida Statutes, is amended
254	to read:
255	386.211 Public announcements in mass transportation
256	terminals.--Announcements about the Florida Clean Indoor Air Act
257	shall be made regularly over public address systems in terminals
258	of public transportation carriers located in metropolitan
259	statistical areas with populations over 230,000 according to the
260	latest census. These announcements shall be made at least every
261	30 minutes and shall be made in appropriate languages. Each
262	announcement shall include a statement to the effect that
263	Florida is a clean indoor air state and that smoking is
264	prohibited in enclosed indoor workplacesallowed only in
265	designated areas.
266	Section 10. Section 386.212, Florida Statutes, is
267	reenacted to read:
268	386.212 Smoking prohibited near school property;
269	penalty.--
270	(1) It is unlawful for any person under 18 years of age to
271	smoke tobacco in, on, or within 1,000 feet of the real property
272	comprising a public or private elementary, middle, or secondary
273	school between the hours of 6 a.m. and midnight. This section
274	shall not apply to any person occupying a moving vehicle or
275	within a private residence.
276	(2) A law enforcement officer may issue a citation in such
277	form as prescribed by a county or municipality to any person
278	violating the provisions of this section. Any such citation must
279	contain:
280	(a) The date and time of issuance.
281	(b) The name and address of the person cited.
282	(c) The date and time the civil infraction was committed.
283	(d) The statute violated.
284	(e) The facts constituting the violation.
285	(f) The name and authority of the law enforcement officer.
286	(g) The procedure for the person to follow to pay the
287	civil penalty, to contest the citation, or to appear in court.
288	(h) The applicable civil penalty if the person elects not
289	to contest the citation.
290	(i) The applicable civil penalty if the person elects to
291	contest the citation.
292	(3) Any person issued a citation pursuant to this section
293	shall be deemed to be charged with a civil infraction punishable
294	by a maximum civil penalty not to exceed $25, or 50 hours of
295	community service or, where available, successful completion of
296	a school-approved anti-tobacco "alternative to suspension"
297	program.
298	(4) Any person who fails to comply with the directions on
299	the citation shall be deemed to waive his or her right to
300	contest the citation and an order to show cause may be issued by
301	the court.
302	Section 11. Section 386.205, Florida Statutes, is
303	repealed.
304	Section 12. If any provision of this act or the
305	application thereof to any person or circumstance is held
306	invalid, the invalidity shall not affect other provisions or
307	applications of the act which can be given effect without the
308	invalid provision or application, and to this end the provisions
309	of this act are declared severable.
310	Section 13. This act shall take effect July 1, 2003.