Senate Bill sb0044A
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Florida Senate - 2003 SB 44-A
By Senator Diaz de la Portilla
36-2618-03
1 A bill to be entitled
2 An act relating to the Florida Clean Indoor Air
3 Act; implementing s. 20, Art. X of the State
4 Constitution; reenacting s. 386.201, F.S.,
5 relating to a short title; amending s. 386.202,
6 F.S.; providing legislative intent and
7 findings; amending s. 386.203, F.S.; providing
8 definitions; amending s. 386.204, F.S.;
9 prohibiting smoking in certain places;
10 requiring the posting of signs; creating s.
11 386.2045, F.S.; establishing specific
12 exceptions where smoking is permitted; amending
13 s. 386.205, F.S.; providing for designated
14 smoking rooms; providing certain exceptions;
15 requiring state agencies to adopt rules;
16 amending s. 386.206, F.S.; providing
17 requirements for the posting of signs in rooms
18 designated as smoking rooms; amending s.
19 386.207, F.S.; providing for enforcement of the
20 act by the Department of Business and
21 Professional Regulation and the Department of
22 Health; providing penalties; providing for the
23 use of moneys collected as fines under the act;
24 amending s. 386.208, F.S.; providing additional
25 penalties; reenacting s. 386.209, F.S.,
26 relating to preemption by the state of the
27 regulation of smoking; amending s. 386.211,
28 F.S.; providing for announcements at certain
29 facilities; amending s. 386.212, F.S.;
30 prohibiting smoking near school property;
31 creating s. 386.2125, F.S.; requiring the
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1 Department of Health to adopt rules; providing
2 for construction of the act in pari materia
3 with laws enacted during the Regular Session of
4 the Legislature; providing for severability;
5 providing an effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Section 386.201, Florida Statutes, is
10 reenacted to read:
11 386.201 Short title.--This part may be cited as the
12 "Florida Clean Indoor Air Act."
13 Section 2. Section 386.202, Florida Statutes, is
14 amended to read:
15 386.202 Legislative intent.--The purpose of this part
16 is to protect people from the public health hazards of
17 second-hand, comfort, and environment by creating areas in
18 public places and at public meetings that are reasonably free
19 from tobacco smoke and to implement the Florida health
20 initiative in s. 20, Art. X of the State Constitution by
21 providing a uniform statewide maximum code. It is the intent
22 of the Legislature to not inhibit, or otherwise obstruct,
23 smoking cessation programs, medical research, or scientific
24 research in this state. The Legislature finds that tobacco
25 smoking that is integral to a smoking cessation program,
26 medical research, or scientific research does not present a
27 credible public health hazard from second-hand smoke. This
28 part shall not be interpreted to require the designation of
29 smoking areas. However, it is the intent of the Legislature to
30 discourage the designation of any area within a government
31 building as a smoking area.
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1 Section 3. Section 386.203, Florida Statutes, is
2 amended to read:
3 386.203 Definitions.--As used in this part, the term:
4 (1) "Commercial use of a private residence" means any
5 time during which the owner, lessee, or other person occupying
6 or controlling the use of a private residence is furnishing in
7 the private residence, or causing or allowing to be furnished
8 in the private residence, child care, adult care, or health
9 care, or any combination thereof, and receiving or expecting
10 to receive compensation therefor.
11 (2) "Common area" means a hallway, corridor, lobby,
12 aisle, water fountain area, restroom, stairwell, entryway, or
13 conference room in a public place.
14 (3) "Department" means the Department of Health.
15 (4) "Designated smoking guest rooms at public lodging
16 establishments" means the sleeping rooms and directly
17 associated private areas, such as bathrooms, living rooms, and
18 kitchen areas, if any, rented to guests for their exclusive
19 transient occupancy in public lodging establishments,
20 including hotels, motels, resort condominiums, transient
21 apartments, transient lodging establishments, rooming houses,
22 boarding houses, resort dwellings, bed and breakfast inns, and
23 the like and designated by the person or persons having
24 management authority over such public lodging establishment as
25 rooms in which smoking may be permitted.
26 (5) "Enclosed indoor workplace" means a workplace that
27 is predominantly or totally bounded on all sides and above by
28 physical barriers.
29 (a) Except as provided in paragraph (b), the term does
30 not include a workplace that does not have physical barriers
31 of any kind from above; a workplace that is totally or
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1 partially bounded from above but of which at least 25 percent
2 of contiguous surface area of the sides is without a physical
3 barrier; or a workplace that is bounded on all sides and above
4 by physical barriers consisting of no more than 50 percent of
5 the total bounded surface area of the workplace.
6 (b) The term does not apply to a workplace in a
7 restaurant that is bounded on all sides and above by physical
8 barriers consisting of no more than 25 percent of the total
9 bounded surface area of the workplace, provided that if such a
10 workplace is totally or predominantly bounded from above it
11 must use a ventilation system to significantly reduce the
12 accumulation of second-hand tobacco smoke.
13 (6) "Essential services" means those services that are
14 essential to the maintenance of any enclosed indoor room,
15 regardless of whether the room is a workplace, including, but
16 not limited to, janitorial services, repairs, or renovations.
17 (7) "Government building" means a building or portion
18 of a building owned by or leased to the state or a political
19 subdivision of the state and used for governmental purposes.
20 (8) "Physical barrier" includes an uncovered opening,
21 a screened or otherwise partially covered opening, or an open
22 or closed window, jalousie, or door.
23 (9)(1) "Public place" means the following enclosed,
24 indoor areas used by the general public:
25 (a) Government buildings;
26 (b) Public means of mass transportation and their
27 associated terminals not subject to federal smoking
28 regulation;
29 (c) Elevators;
30 (d) Hospitals;
31 (e) Nursing homes;
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1 (f) Educational facilities;
2 (g) Public school buses;
3 (h) Libraries;
4 (i) Courtrooms;
5 (j) Jury waiting and deliberation rooms;
6 (k) Museums;
7 (l) Theaters;
8 (m) Auditoriums;
9 (n) Arenas;
10 (o) Recreational facilities;
11 (p) Restaurants;
12 (q) Retail stores, except a retail store the primary
13 business of which is the sale of tobacco or tobacco related
14 products;
15 (r) Grocery stores;
16 (s) Buildings that contain an enclosed indoor
17 workplace Places of employment;
18 (t) Health care facilities;
19 (u) Day care centers; and
20 (v) Common areas of retirement homes and condominiums.
21 (2) "Government building" means any building or any
22 portion of any building owned by or leased to the state or any
23 political subdivision thereof and used for governmental
24 purposes.
25 (10)(3) "Public meeting" means all meetings open to
26 the public, including meetings of homeowner, condominium, or
27 renter or tenant associations unless such meetings are held in
28 a private residence.
29 (11) "Second-hand smoke" means smoke emitted from
30 lighted, smoldering, or burning tobacco when the smoker is not
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1 inhaling; smoke emitted at the mouthpiece during puff drawing;
2 and smoke exhaled by the smoker.
3 (12)(4) "Smoking" means inhaling, exhaling, burning,
4 carrying, or possessing a lighted tobacco product, including
5 cigarettes, cigars, pipe tobacco possession of a lighted
6 cigarette, lighted cigar, lighted pipe, or any other lighted
7 tobacco product.
8 (13) "Work" means performing an employment or
9 employment-type service for, or at the request of, another
10 person or a public or private entity, regardless of whether
11 the employment or employment-type service is performed for
12 compensation or on a full-time or part-time basis, whether
13 legally or not. The term includes employment or
14 employment-type service performed by an employee, independent
15 contractor, agent, partner, proprietor, manager, officer,
16 director, apprentice, trainee, associate, servant, volunteer,
17 or similar person. The term does not include noncommercial
18 activities performed by members of a membership association.
19 (14) "Workplace" means a room where one or more
20 persons perform work. This section applies to all such
21 workplaces without regard to whether work is occurring at any
22 given time. The term does not include any facility owned or
23 leased by and used exclusively for noncommercial activities
24 performed by the members and guests of a membership
25 association, including social gatherings, meetings, dining,
26 and dances, if no person or persons are engaged in work as
27 defined in subsection (13). Each facility in which tobacco
28 smoking is permitted during the activities of a membership
29 association must conspicuously post, or cause to be posted, in
30 the facility signs stating that smoking is permitted.
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1 (15) "Membership association" means a charitable,
2 nonprofit, or veterans' organization that holds a current
3 exemption under s. 501(c)(3), s. 501(c)(4), s. 501(c)(7), s.
4 501(c)(8), s. 501(c)(10), s. 501(c)(19), or s. 501(d) of the
5 Internal Revenue Code.
6 (5)> "Smoking area" means any designated area meeting
7 the requirements of ss. 386.205 and 386.206.
8 (6) "Common area" means any hallway, corridor, lobby,
9 aisle, water fountain area, restroom, stairwell, entryway, or
10 conference room in any public place.
11 (7) "Department" means the Department of Health.
12 (8) "Division" means the Division of Hotels and
13 Restaurants of the Department of Business and Professional
14 Regulation.
15 Section 4. Section 386.204, Florida Statutes, is
16 amended to read:
17 386.204 Prohibition.--
18 (1) ENCLOSED INDOOR WORKPLACES.--A person may not
19 smoke in an enclosed indoor workplace, except as otherwise
20 provided in s. 386.2045.
21 (2) PUBLIC PLACES.--A person may not smoke in a public
22 place or at a public meeting except as provided in this part
23 in designated smoking areas.
24 (3) OTHER PROHIBITED AREAS.--A person may not smoke
25 within 10 feet of the entryway to a building that contains an
26 enclosed indoor workplace or within 10 feet of intake
27 equipment for a heating, ventilating, or air conditioning
28 system (HVAC system) for a building that contains an enclosed
29 indoor workplace. An outdoor entryway to a public
30 transportation facility, including, but not limited to,
31 railroad stations, bus stations, ship ports, ferry terminals,
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1 roadside welcome stations, highway service plazas, airports
2 served by regular passenger service, and highway rest stations
3 is exempt from the prohibition in this subsection. These
4 prohibitions do not apply in cases in which an entire room or
5 hall is used for a private function and seating arrangements
6 are under the control of the sponsor of the function and not
7 of the proprietor or person in charge of the room or hall.
8 Section 5. Section 386.2045, Florida Statutes, is
9 created to read:
10 386.2045 Enclosed indoor workplaces; specific
11 exceptions.--Notwithstanding s. 386.204(1), tobacco smoking
12 may be permitted in each of the following places:
13 (1) PRIVATE RESIDENCE.--A private residence whenever
14 it is not being used commercially to provide child care, adult
15 care, or health care, or any combination thereof.
16 (2) RETAIL TOBACCO SHOP.--Any enclosed indoor
17 workplace dedicated to or predominantly for the retail sale of
18 tobacco, tobacco products, and accessories for such products,
19 in which the sale of other products or services is merely
20 incidental. Any enclosed indoor workplace of a business that
21 manufactures, imports, or distributes tobacco products or of a
22 tobacco leaf dealer is a business dedicated to or
23 predominantly for the retail sale of tobacco and tobacco
24 products when, as a necessary and integral part of the process
25 of making, manufacturing, importing, or distributing a tobacco
26 product for the eventual retail sale of such tobacco or
27 tobacco product, tobacco is heated, burned, or smoked or a
28 lighted tobacco product is tested.
29 (3) DESIGNATED SMOKING GUEST ROOM.--A designated
30 smoking guest room at a public lodging establishment.
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1 (4) STAND-ALONE BAR.--Any place of business that
2 during all times of operation is devoted predominantly or
3 totally to serving alcoholic beverages, intoxicating
4 beverages, or intoxicating liquors, or any combination
5 thereof, for consumption on the licensed premises; in which
6 the serving of food, if any, is merely incidental to the
7 consumption of any such beverage; and the licensed premises is
8 not located within, and does not share any common entryway or
9 common indoor area with, any other enclosed indoor workplace,
10 including any business for which the sale of food or any other
11 product or service is more than an incidental source of gross
12 revenue. A business must not derive more than 12 percent of
13 its gross revenue from the sale of food.
14 (5) SMOKING-CESSATION PROGRAM, MEDICAL RESEARCH, OR
15 SCIENTIFIC RESEARCH.--Any enclosed indoor workplace or public
16 place, to the extent that tobacco smoking is an integral part
17 of a smoking-cessation program, medical research, or
18 scientific research. Each room in which tobacco smoking is
19 permitted must comply with the signage requirements in s.
20 386.206.
21 (6) ENTERTAINMENT INDUSTRY.--Any enclosed indoor
22 workplace or public place, to the extent that tobacco smoking
23 is a part of a theatrical, commercial advertising, music
24 video, television, or motion picture performance. Each room
25 in which tobacco smoking is permitted as part of a performance
26 must comply with the signage requirements in s. 386.206.
27 Section 6. Section 386.205, Florida Statutes, is
28 amended to read:
29 386.205 Designation of smoking rooms areas.--
30 (1) A smoking room areas may be designated by the
31 person in charge of an airport in-transit lounge under the
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1 authority and control of the Bureau of Customs and Border
2 Protection of the United States Department of Homeland
3 Security a public place. A smoking room may be designated in
4 an airport in-transit lounge under the authority and control
5 of the Bureau of Customs and Border Protection of the United
6 States Department of Homeland Security. A smoking room may not
7 be designated in an elevator, restroom, or any common area as
8 defined in s. 386.203. Each designated smoking room must
9 conform to the following requirements:
10 (a) Work, other than essential services defined in s.
11 386.203, must not be performed in the room at any given time.
12 (b) Tobacco smoking must not be permitted in the room
13 while any essential services are being performed in the room.
14 (c) Each smoking room must be enclosed by physical
15 barriers that are impenetrable by second-hand tobacco smoke
16 and prevent the escape of second-hand tobacco smoke into a
17 common area or an enclosed indoor workplace.
18 (d) Each designated smoking room must exhaust tobacco
19 smoke directly to the outside and away from air intake ducts,
20 and be maintained under negative pressure, with respect to
21 surrounding spaces, sufficient to contain tobacco smoke within
22 the designated room.
23 (e) Each smoking room must conspicuously post, or
24 cause to be posted, in the room and at the entrance to the
25 room signs stating that smoking is permitted. If a smoking
26 area is designated, existing physical barriers and ventilation
27 systems shall be used to minimize smoke in adjacent nonsmoking
28 areas. This provision shall not be construed to require fixed
29 structural or other physical modifications in providing these
30 areas or to require operation of any existing heating,
31 ventilating, and air-conditioning system (HVAC system) in any
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1 manner which decreases its energy efficiency or increases its
2 electrical demand, or both, nor shall this provision be
3 construed to require installation of new or additional HVAC
4 systems.
5 (2)(a) A smoking area may not be designated in an
6 elevator, school bus, public means of mass transportation
7 subject only to state smoking regulation, restroom, hospital,
8 doctor's or dentist's waiting room, jury, deliberation room,
9 county health department, day care center, school or other
10 educational facility, or any common area as defined in s.
11 386.203. However, a patient's room in a hospital, nursing
12 home, or other health care facility may be designated as a
13 smoking area if such designation is ordered by the attending
14 physician and agreed to by all patients assigned to that room.
15 (b) Notwithstanding anything in this part to the
16 contrary, no more than one-half of the rooms in any health
17 care facility may be designated as smoking areas.
18 (3) In a workplace where there are smokers and
19 nonsmokers, employers shall develop, implement, and post a
20 policy regarding designation of smoking and nonsmoking areas.
21 Such a policy shall take into consideration the proportion of
22 smokers and nonsmokers. Employers who make reasonable efforts
23 to develop, implement, and post such a policy shall be deemed
24 in compliance. An entire area may be designated as a smoking
25 area if all workers routinely assigned to work in that area at
26 the same time agree. With respect to the square footage in any
27 public place as described in subsection (4), this square
28 footage shall not include private office work space which is
29 not a common area as defined in s. 386.203(6) and which is
30 ordinarily inaccessible to the public.
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1 (4)(a) No more than one-half of the total square
2 footage in any public place within a single enclosed indoor
3 area used for a common purpose shall be reserved and
4 designated as a smoking area.
5 (b) The square footage limitation set forth in
6 paragraph (a) shall not apply to any restaurant subject to
7 this part. With respect to such restaurants:
8 1. No more than 50 percent of the seats existing in a
9 restaurant's dining room at any time shall be located in an
10 area designated as a smoking area.
11 2. Effective October 1, 2001, no more than 35 percent
12 of the seats existing in a restaurant's dining room at any
13 time shall be located in an area designated as a smoking area.
14 (3)(5) A smoking room area may not contain common
15 areas that which are expected to be used by the public.
16 (4)(6) Each state agency may adopt rules for
17 administering this section which take into consideration the
18 provisions of this part.
19 Section 7. Section 386.206, Florida Statutes, is
20 amended to read:
21 386.206 Posting of signs.--The person in charge of a
22 public place shall conspicuously post, or cause to be posted,
23 in any public place area designated as a smoking area signs
24 stating that smoking is not permitted in the public place such
25 area. Each sign posted under pursuant to this section must
26 shall have letters of reasonable size which can be easily
27 read. The color, design, and precise place of posting of
28 these such signs shall be left to the discretion of the person
29 in charge of the premises. In order to increase public
30 awareness, the person in charge of a public place may, at his
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1 or her discretion, also post "NO SMOKING EXCEPT IN DESIGNATED
2 >AREAS" signs as appropriate.
3 Section 8. Section 386.207, Florida Statutes, is
4 amended to read:
5 386.207 Administration; enforcement; civil penalties;
6 exceptions exemptions.--
7 (1) The department and the Department of Business and
8 Professional Regulation or the division shall enforce this
9 part ss. 386.205 and 386.206 and to implement such enforcement
10 shall adopt, in consultation with the Department of
11 Agriculture and Consumer Services and the State Fire Marshal,
12 rules specifying procedures to be followed by enforcement
13 personnel in investigating complaints and notifying alleged
14 violators, rules defining types of cases for which exceptions
15 exemptions may be granted, and rules specifying procedures by
16 which appeals may be taken by aggrieved parties.
17 (2) Public agencies responsible for the management and
18 maintenance of government buildings shall report observed
19 violations to the department and the Department of Business
20 and Professional Regulation or division. The State Fire
21 Marshal shall report to the department and the Department of
22 Business and Professional Regulation or division observed
23 violations of this part ss. 386.205 and 386.206 found during
24 its periodic inspections conducted under pursuant to its
25 regulatory authority. The department and the Department of
26 Business and Professional Regulation or the division, upon
27 notification of observed violations of this part ss. 386.205
28 and 386.206, shall issue to the proprietor or other person in
29 charge of such public place or enclosed indoor workplace a
30 notice to comply with this part ss. 386.205 and 386.206. If
31 the such person fails to comply within 30 days after receipt
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1 of the such notice, the department and the Department of
2 Business and Professional Regulation or the division shall
3 assess a civil penalty against the person of not less than
4 $500 and him or her not to exceed $1,000 $100 for the first
5 violation and not less than $1,000 and not to exceed $2,500
6 $500 for each subsequent violation. The imposition of the such
7 fine must shall be in accordance with the provisions of
8 chapter 120. If a person refuses to comply with this part ss.
9 386.205 and 386.206, after having been assessed such penalty,
10 the department and the Department of Business and Professional
11 Regulation or the division may file a complaint in the circuit
12 court of the county in which the such public place or enclosed
13 indoor workplace is located to require compliance.
14 (3) A person may request an exemption from ss. 386.205
15 and 386.206 by applying to the department or the division.
16 The department or the division may grant exemptions on a
17 case-by-case basis where it determines that substantial good
18 faith efforts have been made to comply or that emergency or
19 extraordinary circumstances exist.
20 (3)(4) All fine moneys collected pursuant to this
21 section shall be used by the department for children's medical
22 services programs pursuant to the provisions of part I of
23 chapter 391.
24 Section 9. Section 386.208, Florida Statutes, is
25 amended to read:
26 386.208 Penalties.--Any person who violates s. 386.204
27 commits a noncriminal violation as defined provided for in s.
28 775.08(3), punishable by a fine of not less than $500 and not
29 more than $1,000 $100 for the first violation and not less
30 than $1,000 and not more than $2,500 $500 for each subsequent
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1 violation. Jurisdiction shall be with the appropriate county
2 court.
3 Section 10. Section 386.209, Florida Statutes, is
4 reenacted to read:
5 386.209 Regulation of smoking preempted to
6 state.--This part expressly preempts regulation of smoking to
7 the state and supersedes any municipal or county ordinance on
8 the subject.
9 Section 11. Section 386.211, Florida Statutes, is
10 amended to read:
11 386.211 Public announcements in mass transportation
12 terminals.--Announcements about the Florida Clean Indoor Air
13 Act shall be made regularly over public address systems in
14 terminals of public transportation carriers located in
15 metropolitan statistical areas with populations over 230,000
16 according to the latest census. These announcements shall be
17 made at least every 30 minutes and shall be made in
18 appropriate languages. Each announcement must shall include a
19 statement to the effect that Florida is a clean indoor air
20 state and that smoking is not allowed except as provided in
21 this part only in designated areas.
22 Section 12. Section 386.212, Florida Statutes, is
23 amended to read:
24 386.212 Smoking prohibited near school property;
25 penalty.--
26 (1) It is unlawful for any person under 18 years of
27 age to smoke tobacco in, on, or within 1,000 feet of the real
28 property comprising a public or private elementary, middle, or
29 secondary school between the hours of 6 a.m. and midnight.
30 This section does shall not apply to any person occupying a
31 moving vehicle or within a private residence.
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1 (2) A law enforcement officer may issue a citation in
2 such form as prescribed by a county or municipality to any
3 person violating the provisions of this section. Any such
4 citation must contain:
5 (a) The date and time of issuance.
6 (b) The name and address of the person cited.
7 (c) The date and time the civil infraction was
8 committed.
9 (d) The statute violated.
10 (e) The facts constituting the violation.
11 (f) The name and authority of the law enforcement
12 officer.
13 (g) The procedure for the person to follow to pay the
14 civil penalty, to contest the citation, or to appear in court.
15 (h) The applicable civil penalty if the person elects
16 not to contest the citation.
17 (i) The applicable civil penalty if the person elects
18 to contest the citation.
19 (3) Any person issued a citation pursuant to this
20 section shall be deemed to be charged with a civil infraction
21 punishable by a maximum civil penalty not to exceed $25, or 50
22 hours of community service or, where available, successful
23 completion of a school-approved anti-tobacco "alternative to
24 suspension" program.
25 (4) Any person who fails to comply with the directions
26 on the citation shall be deemed to waive his or her right to
27 contest the citation and an order to show cause may be issued
28 by the court.
29 Section 13. Section 386.2125, Florida Statutes, is
30 created to read:
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1 386.2125 Rulemaking.--The department shall, in
2 consultation with the State Fire Marshal, the Department of
3 Agriculture and Consumer Services, and the Department of
4 Business and Professional Regulation, have the authority to
5 adopt rules pursuant to ss. 120.536(1) and 120.54 to implement
6 the provisions of this part.
7 Section 14. If any law that is amended by this act was
8 also amended by a law enacted at the 2003 Regular Session of
9 the Legislature, such laws shall be construed as if they had
10 been enacted during the same session of the Legislature, and
11 full effect should be given to each if that is possible.
12 Section 15. If any provision of this act or its
13 application to any person or circumstance is held invalid, the
14 invalidity does not affect other provisions or applications of
15 the act that can be given effect without the invalid provision
16 or application, and to this end the provisions of this act are
17 declared severable.
18 Section 16. This act shall take effect July 1, 2003.
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21 SENATE SUMMARY
22 Implements Section 20, Article X of the Florida
Constitution, which prohibits tobacco smoking in enclosed
23 indoor workplaces. Prohibits smoking in enclosed indoor
workplaces, public places, and certain other areas.
24 Provides certain exceptions. Provides for designating a
smoking room in an airport in-transit lounge. Provides
25 requirements for posting signs. Provides for enforcement.
Provides for penalties. (See bill for details.)
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