HB 0063A 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 for construction of the act in
31	pari materia with laws enacted during the Regular Session
32	of the Legislature;providing an effective date.
33
34	Be It Enacted by the Legislature of the State of Florida:
35
36	Section 1. Section 386.201, Florida Statutes, is amended
37	to read:
38	386.201 Popular nameShort title.--This part may be cited
39	by the popular nameasthe "Florida Clean Indoor Air Act."
40	Section 2. Section 386.202, Florida Statutes, is amended
41	to read:
42	386.202 Legislative intent.--The purpose of this part is
43	to protect individuals from the public health hazards of second-
44	hand, comfort, and environment by creating areas in public
45	places and at public meetings that are reasonably free from
46	tobacco smoke and to implement s. 20, Art. X of the State
47	Constitutionby providing a uniform statewide maximum code. This
48	part shall not be interpreted to require the designation of
49	smoking areas. However, it is the intent of the Legislature to
50	discourage the designation of any area within a government
51	building as a smoking area.
52	Section 3. Section 386.203, Florida Statutes, is amended
53	to read:
54	386.203 Definitions.--As used in this part:
55	(1)(4) "Smoking" means inhaling, exhaling, burning,
56	carrying, or possessing anypossession of a lighted tobacco
57	product, including cigarettes, cigars, pipe tobacco, and
58	cigarette, lighted cigar, lighted pipe, orany other lighted
59	tobacco product.
60	(2) “Second-hand smoke,” also known as environmental
61	tobacco smoke [ETS], means smoke emitted from lighted,
62	smoldering, or burning tobacco when the smoker is not inhaling;
63	smoke emitted at the mouthpiece during puff drawing; and smoke
64	exhaled by the smoker.
65	(3) “Work” means any person's providing any employment or
66	employment-type service for or at the request of another
67	individual or individuals or any public or private entity,
68	whether for compensation or not, whether full or part time,
69	whether legally or not. "Work" includes, without limitation, any
70	such service performed by an employee, independent contractor,
71	agent, partner, proprietor, manager, officer, director,
72	apprentice, trainee, associate, servant, volunteer, and the
73	like.
74	(4) "Enclosed indoor workplace" means any place where one
75	or more persons engages in work, and which place is
76	predominantly or totally bounded on all sides and above by
77	physical barriers, regardless of whether such barriers consist
78	of or include uncovered openings, screened or otherwise
79	partially covered openings; or open or closed windows,
80	jalousies, doors, or the like. This section applies to all such
81	enclosed indoor workplaces without regard to whether work is
82	occurring at any given time.
83	(5) "Commercial" use of a private residence means any time
84	during which the owner, lessee, or other person occupying or
85	controlling the use of the private residence is furnishing in
86	the private residence, or causing or allowing to be furnished in
87	the private residence, child care, adult care, or health care,
88	or any combination thereof, and receiving or expecting to
89	receive compensation therefor.
90	(6) "Retail tobacco shop" means any enclosed indoor
91	workplace dedicated to or predominantly for the retail sale of
92	tobacco, tobacco products, and accessories for such products, in
93	which the sale of other products or services is merely
94	incidental. Any enclosed indoor workplace of a business that
95	manufactures, imports, or distributes tobacco products or of a
96	tobacco leaf dealer is a business dedicated to or predominantly
97	for the retail sale of tobacco and tobacco products when, as a
98	necessary and integral part of the process of making,
99	manufacturing, importing, or distributing a tobacco product for
100	the eventual retail sale of such tobacco or tobacco product,
101	tobacco is heated, burned or smoked or a lighted tobacco product
102	is tested.
103	(7) "Designated smoking guest rooms at public lodging
104	establishments" means the sleeping rooms and directly associated
105	private areas, such as bathrooms, living rooms, and kitchen
106	areas, if any, rented to guests for their exclusive transient
107	occupancy in public lodging establishments, including hotels,
108	motels, resort condominiums, transient apartments, transient
109	lodging establishments, rooming houses, boarding houses, resort
110	dwellings, bed and breakfast inns, and the like; and designated
111	by the person or persons having management authority over such
112	public lodging establishment as rooms in which smoking may be
113	permitted.
114	(1) "Public place" means the following enclosed, indoor
115	areas used by the general public:
116	(a) Government buildings;
117	(b) Public means of mass transportation and their
118	associated terminals not subject to federal smoking regulation;
119	(c) Elevators;
120	(d) Hospitals;
121	(e) Nursing homes;
122	(f) Educational facilities;
123	(g) Public school buses;
124	(h) Libraries;
125	(i) Courtrooms;
126	(j) Jury waiting and deliberation rooms;
127	(k) Museums;
128	(l) Theaters;
129	(m) Auditoriums;
130	(n) Arenas;
131	(o) Recreational facilities;
132	(p) Restaurants;
133	(q) Retail stores, except a retail store the primary
134	business of which is the sale of tobacco or tobacco related
135	products;
136	(r) Grocery stores;
137	(s) Places of employment;
138	(t) Health care facilities;
139	(u) Day care centers; and
140	(v) Common areas of retirement homes and condominiums.
141	(2) "Government building" means any building or any
142	portion of any building owned by or leased to the state or any
143	political subdivision thereof and used for governmental
144	purposes.
145	(3) "Public meeting" means all meetings open to the
146	public, including meetings of homeowner, condominium, or renter
147	or tenant associations unless such meetings are held in a
148	private residence.
149	(5) "Smoking area" means any designated area meeting the
150	requirements of ss. 386.205 and 386.206.
151	(6) "Common area" means any hallway, corridor, lobby,
152	aisle, water fountain area, restroom, stairwell, entryway, or
153	conference room in any public place.
154	(8)(7)"Department" means the Department of Health.
155	(9)(8)"Division" means the Division of Hotels and
156	Restaurants of the Department of Business and Professional
157	Regulation.
158	Section 4. Section 386.204, Florida Statutes, is amended
159	to read:
160	386.204 Prohibition; exceptions.--A person may not smoke
161	in an enclosed indoor workplace, except that smoking may be
162	permitted in:a public place or at a public meeting except in
163	designated smoking areas. These prohibitions do not apply in
164	cases in which an entire room or hall is used for a private
165	function and seating arrangements are under the control of the
166	sponsor of the function and not of the proprietor or person in
167	charge of the room or hall.
168	(1) Private residences when not being used for commercial
169	purposes as defined in s. 386.203(5).
170	(2) Retail tobacco shops as defined in s. 386.203(6).
171	(3) Designated smoking guest rooms at public lodging
172	establishments as defined in s. 386.203(7).
173	Section 5. Section 386.206, Florida Statutes, is amended
174	to read:
175	386.206 Posting of signs; requiring policies.--
176	(1) The person in charge of an enclosed indoor workplace
177	that prior to adoption of s. 20, Art. X of the State
178	Constitution was required to post signs under the requirements
179	of this section must continue toa public place shall
180	conspicuously post, or cause to be posted, in any area
181	designated as a smoking area signs stating that smoking is not
182	permitted in the indoor workplacesuch area. Each sign posted
183	pursuant to this section mustshallhave letters of reasonable
184	size which can be easily read. The color, design, and precise
185	place of posting of such signs shall be left to the discretion
186	of the person in charge of the premises. In order to increase
187	public awareness, the person in charge of a public place may, at
188	his or her discretion, also post "NO SMOKING EXCEPT IN
189	DESIGNATED AREAS" signs as appropriate.
190	(2) The proprietor or other person in charge of an
191	enclosed indoor workplace must develop and implement a policy
192	regarding the smoking prohibitions established in this part.
193	The policy may include, but is not limited to, procedures to be
194	taken when the proprietor or other person in charge witnesses or
195	is made aware of a violation of s. 386.204 in the enclosed
196	indoor workplace and must include a policy which prohibits an
197	employee from smoking in the enclosed indoor workplace.
198	(3) The provisions of subsection (1) shall expire on July
199	1, 2005.
200	Section 6. Section 386.207, Florida Statutes, is amended
201	to read:
202	386.207 Administration; enforcement; civil penalties;
203	exemptions.--
204	(1) The department or the division shall enforce s.ss.
205	386.205 and386.206 and to implement such enforcement shall
206	adopt, in consultation with the State Fire Marshal, rules
207	specifying procedures to be followed by enforcement personnel in
208	investigating complaints and notifying alleged violators, rules
209	defining types of cases for which exemptions may be granted,and
210	rules specifying procedures by which appeals may be taken by
211	aggrieved parties.
212	(2) Public agencies responsible for the management and
213	maintenance of government buildings shall report observed
214	violations to the department or division. The State Fire Marshal
215	shall report to the department or division observed violations
216	of s.ss. 386.205 and386.206 found during its periodic
217	inspections of enclosed indoor workplacesconducted pursuant to
218	its regulatory authority. The department or the division, upon
219	notification of observed violations of s.ss. 386.205 and
220	386.206, shall issue to the proprietor or other person in charge
221	of such enclosed indoor workplacepublic placea notice to
222	comply with s.ss. 386.205 and386.206. If such person fails to
223	comply within 30 days after receipt of such notice, the
224	department or the division shall assess a civil penalty against
225	him or her not to exceed $100 for the first violation and not to
226	exceed $500 for each subsequent violation. The imposition of
227	such fine shall be in accordance with the provisions of chapter
228	120. If a person refuses to comply with s.ss. 386.205 and
229	386.206, after having been assessed such penalty, the department
230	or the division may file a complaint in the circuit court of the
231	county in which such public place is located to require
232	compliance.
233	(3) A person may request an exemption from ss. 386.205 and
234	386.206 by applying to the department or the division. The
235	department or the division may grant exemptions on a case-by-
236	case basis where it determines that substantial good faith
237	efforts have been made to comply or that emergency or
238	extraordinary circumstances exist.
239	(3)(4)All fine moneys collected pursuant to this section
240	shall be used by the department for children's medical services
241	programs pursuant to the provisions of part I of chapter 391.
242	Section 7. Section 386.208, Florida Statutes, is amended
243	to read:
244	386.208 Penalties.--Any person who violates s. 386.204
245	commits a noncriminal violation as definedprovided forin s.
246	775.08(3), punishable by a fine of not more than $100 for the
247	first violation and not more than $500 for each subsequent
248	violation. Jurisdiction shall be with the appropriate county
249	court.
250	Section 8. Section 386.209, Florida Statutes, is reenacted
251	to read:
252	386.209 Regulation of smoking preempted to state.--This
253	part expressly preempts regulation of smoking to the state and
254	supersedes any municipal or county ordinance on the subject.
255	Section 9. Section 386.211, Florida Statutes, is amended
256	to read:
257	386.211 Public announcements in mass transportation
258	terminals.--Announcements about the Florida Clean Indoor Air Act
259	shall be made regularly over public address systems in terminals
260	of public transportation carriers located in metropolitan
261	statistical areas with populations over 230,000 according to the
262	latest census. These announcements shall be made at least every
263	30 minutes and shall be made in appropriate languages. Each
264	announcement shall include a statement to the effect that
265	Florida is a clean indoor air state and that smoking is
266	prohibited in enclosed indoor workplacesallowed only in
267	designated areas.
268	Section 10. Section 386.212, Florida Statutes, is
269	reenacted to read:
270	386.212 Smoking prohibited near school property;
271	penalty.--
272	(1) It is unlawful for any person under 18 years of age to
273	smoke tobacco in, on, or within 1,000 feet of the real property
274	comprising a public or private elementary, middle, or secondary
275	school between the hours of 6 a.m. and midnight. This section
276	shall not apply to any person occupying a moving vehicle or
277	within a private residence.
278	(2) A law enforcement officer may issue a citation in such
279	form as prescribed by a county or municipality to any person
280	violating the provisions of this section. Any such citation must
281	contain:
282	(a) The date and time of issuance.
283	(b) The name and address of the person cited.
284	(c) The date and time the civil infraction was committed.
285	(d) The statute violated.
286	(e) The facts constituting the violation.
287	(f) The name and authority of the law enforcement officer.
288	(g) The procedure for the person to follow to pay the
289	civil penalty, to contest the citation, or to appear in court.
290	(h) The applicable civil penalty if the person elects not
291	to contest the citation.
292	(i) The applicable civil penalty if the person elects to
293	contest the citation.
294	(3) Any person issued a citation pursuant to this section
295	shall be deemed to be charged with a civil infraction punishable
296	by a maximum civil penalty not to exceed $25, or 50 hours of
297	community service or, where available, successful completion of
298	a school-approved anti-tobacco "alternative to suspension"
299	program.
300	(4) Any person who fails to comply with the directions on
301	the citation shall be deemed to waive his or her right to
302	contest the citation and an order to show cause may be issued by
303	the court.
304	Section 11. Section 386.205, Florida Statutes, is
305	repealed.
306	Section 12. If any provision of this act or the
307	application thereof to any person or circumstance is held
308	invalid, the invalidity shall not affect other provisions or
309	applications of the act which can be given effect without the
310	invalid provision or application, and to this end the provisions
311	of this act are declared severable.
312	Section 13. This act shall take effect July 1, 2003.