It Affects You! Florida’s Smoke-Free Workplaces Amendment
 
March 27, 2003
 

Amendment 6, the Florida Smoke-Free Workplaces amendment that was approved in the November 2002 general election, will affect virtually every business in Florida.  Amendment 6 was entitled “Protect People from the Health Hazards of Second-Hand Tobacco Smoke by Prohibiting Workplace Smoking.”

It prohibits tobacco smoking in all “enclosed indoor workplaces” in Florida, regardless of whether work is occurring there at any given time – meaning employees are not permitted to smoke in an enclosed place even during their breaks or before or after work. The amendment defines an “enclosed indoor workplace” as “any 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, regardless of whether such barriers consist of or include uncovered openings, screened or otherwise partially covered openings; or open or closed windows, jalousies, doors, or the like.” The amendment defines “work” broadly to include all manner of activities within an enclosed place, whether performed by employees, volunteers, owners, independent contractors or the like.

Amendment 6 enumerates four exceptions where tobacco smoking may be allowed, but is not required to be allowed: (1) private residences whenever they are not being used commercially to provide child care, adult care, health care or any combination thereof; (2) retail tobacco shops; (3) designated smoking guest rooms (but not privately rented meeting rooms) at hotels and other public lodging establishments; and (4) stand-alone bars. The last three exceptions in particular are of interest to many Florida businesses, and all three will require legislative interpretation.

The Amendment is not currently being enforced because it expressly required the enactment of implementing legislation, to be effective no later than July 1, 2003. The Florida Legislature is drafting legislation now. Substantial differences exist between the current House and Senate versions of the implementing legislation, each of which may pass through additional committees before reaching the floor, and inevitably will be amended in upcoming weeks.  Ultimately, a conference committee will attempt to create a consensus bill, but that probably will not occur until very near the end of the session in May. 

Until the implementing legislation is passed, some details about the enforcement of Amendment 6 will be uncertain.  For example, the Legislature must determine whether to adopt any of the four exceptions that Amendment 6 permits, or to eliminate one or more of those exceptions, which the Legislature is expressly authorized to do.  As of this writing, the Senate had voted to allow all of these exceptions, while the House had suggested eliminating the stand-alone bar exception. This issue will be a point of contention among various interest groups as well as between the House and Senate.

The Legislature also will have to provide the details on how to determine whether a place is “enclosed” so that smoking is prohibited there, and whether smoking can be allowed in any space within a larger enclosed structure such as a mall or an airport.  The Amendment on its face prohibits all smoking “in” an enclosed indoor workplace, without regard to whether work occurs in that space at any given time or not, but the Senate has indicated that it may attempt to carve out exceptions for designated smoking rooms within larger structures. Proponents of Amendment 6 will resist any attempts to weaken Amendment 6, and it appears that the House likewise will not agree with the Senate’s “smoking room” approach.  Both houses of the Legislature are considering creating a smoke-free zone around the entrances to non-smoking places, and around HVAC intake devices.

One of the most public battles surrounding Amendment 6 arises because the Legislature must define what “incidental” food a stand-alone bar may serve if it wishes to allow smoking inside.  The sponsors have stated that the intent of the amendment was to allow stand-alone, smoking bars to serve only snack foods that require no preparation, such as chips and nuts.  Other groups, on the other hand, are pushing hard to allow smoking bars to serve a broad range of food items, up to a certain percentage of revenue.  The percentage-of-revenue approach would raise additional issues such as how to value free food or food included in cover charges; how to account for differences in the value or price of food in different areas of the state and in different types of establishments; how frequently the establishment would have to be audited, in what manner, and by what governmental agency; and what percentage should be used as the benchmark.  This dispute and these issues are among the reasons why the House has suggested that the implementing bill should eliminate smoking in all bars and restaurants alike, in order to create a level playing field and to reduce the necessity of government involvement in the process.

The Legislature also must determine signage requirements for smoking and non-smoking areas, and must provide details of enforcement and penalties. One issue of interest to businesses is whether and to what extent the owner or manager of a business can be held liable for smoking violations that occur on the business premises, and whether a good faith attempt to require compliance would eliminate business liability. 

Further, the Legislature may address what action a proprietor or manager must take in order to demonstrate good-faith attempts to require compliance with the law.  The Legislature also may consider whether a licensed or regulated business that flagrantly or repeatedly fails or refuses to comply with and enforce the law could be subject to collateral administrative penalties such as revocation of licensure.  The Amendment does not address, and the Legislature is not expected to address, the question of whether a business that allows smoking could be liable for smoking-related illnesses among employees who smoke or those who are exposed to second-hand tobacco smoke in the workplace.

Until the details of the implementing legislation are settled, Florida businesses cannot be certain of all that they must do to comply with the new law.  However, persons in management positions should begin to analyze the impact of Amendment 6 with the assumption that certain minimum criteria spelled out in the Amendment itself will be in full force and effect.  Any facility that is obviously “enclosed” within common sense meanings of the term should assume that smoking will be prohibited within the enclosed space, and possibly also prohibited within a smoke-free zone at each entrance.  Managers should consider how to ensure compliance with the law through signage, employee manual policies, and internal inspection and reporting procedures.  Businesses may wish to consider creating a smoking area that is not within the enclosed business space or a potential smoke-free zone, and that is not itself enclosed.  Businesses in the process of constructing new facilities or renovating existing facilities should plan for these physical limitations and requirements. 

On balance, Amendment 6 is predicted to save Florida government, businesses and citizens untold millions of dollars in smoking-related costs.  Further, based on the experience of other jurisdictions that have gone smoke-free, Florida’s tourism and service industries ultimately will profit economically, rather than lose, as a result of the Amendment.  The real reason for Amendment 6, however, was to protect the public health, and all of Florida stands to gain immeasurable health benefits from compliance with Amendment 6. 

The sponsors of Amendment 6 included a number of well-known public health organizations, such as the American Cancer Society, American Heart Association and American Lung Association.  These organizations are actively promoting what they consider to be appropriate implementing legislation in the 2003 session.  Holland & Knight LLP is assisting in that process, following up on the firm’s work in representing the sponsors in preparation of the amendment and before the Florida Supreme Court for legal approval of the amendment.

For more information, contact Susan Kelsey, toll free, at 1-888-688-8500.

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