CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 12284, 1995 WL 694646
...All of the proposed rules impact places of employment. On the basis of the parties’ stipulation, the Appellant Mackoul has standing to challenge all of the proposed rules. The hearing officer concluded that proposed rule 10D-105.009, subsections (1), (2), and (3), 1 did not contravene section 386.205(3), Florida Statutes, which deems compliance on the part of those employers that make reasonable efforts to develop, implement, and post a smoking policy. As the hearing officer observed, the proposed rules provide nothing more than the procedure to be followed by enforcement personnel in investigating complaints and notifying alleged *1378 violators of the Act. Section 386.205(3), Florida Statutes, requires employers subject to the Act to develop, implement, and post a policy regarding the designation of smoking and nonsmoking areas....
...’s application of the two rules in notifying alleged offenders of the violation. Proposed rule 10D-105.009(8) 4 enlarges the specific provisions of the law implemented and thereby constitutes an invalid exercise of delegated legislative authority. Section 386.205(4) of the Act limits the designation of a smoking area to no more than one-half of the total square footage in any public place within a single enclosed area used for a common purpose. Section 386.205(3) of the Act exempts from calculation of that square footage “private office work space which is not a common area as defined in s....
...As such, it is subject to the Act. We agree with the hearing officer’s conclusion that proposed rule 10D-105.011 8 enlarges the specific provisions of the law implemented. Section
386.207 of the Act allows parties subject to the Act to request an exemption from §§
386.205 and
386.206 by application to the agency....
...The hearing officer did not err in finding the rule to enlarge, modify or contravene the specific provisions of the law implemented. Proposed rule 10D-105.012(2) 9 is also an invalid exercise of delegated legislative authority. Section
386.207 of the Act provides for enforcement procedures in eases of alleged violations of §§
386.205 and
386.206....
...ZEHMER, C.J., and DAVIS, J., concur. . Proposed rule 10D-105.009 reads in pertinent part: (1)In any workplace where there are smokers and nonsmokers, employers shall develop a policy with regard to the designation of smoking areas. Should there be no written policy, a violation of section 386.205(3), F.S., exists and will be documented as “Failure to develop a smoking policy regarding smoking and nonsmoking areas.” (2) Employers are required to implement a written smoking policy. If employees are observed violating a workplace smoking policy, a violation of section 386.205(3), F.S., exists and will be documented as “Failure to implement an existing policy.” (3) Should a smoking policy exist for a workplace but not be posted, a violation of section 386.205(3), F.S., exists and will be documented as "Failure to post a smoking policy.” ....
...he Florida Clean Indoor Air Act will be documented as: (a) failure to post signs in a designated smoking area, a violation of section
386.206, F.S., and (b) failure to implement a smoking policy regarding smoking and nonsmoking areas, a violation of section
386.205(3), F.S....
...t to smoking being permitted in that common work area, then that area can not be designated as a smoking area. If a smoking area is designated in a common work area over the objections of any worker assigned to work in that area, then a violation of section 386.205(3), F.S., exists and will be documented as: "Common work area designated as smoking area without employee consent." ....
...Proposed rule 10D-105.009(8) reads: If single-occupancy offices have not been counted in the calculation of the square footage of a designated smoking area where both smokers and nonsmokers routinely assigned to work at the same time and the doors of those offices are left open, then a violation of section 386.205(3), exists and will be documented as: "Square footage calculation for designation of smoking areas is incorrect.” ....
...386.203(6) reads: "Common area” means any hallway, corridor, lobby, aisle, water fountain area, restroom, stairwell, entiyway, or conference room in any public place. . Proposed rule 10D-105.009(10) reads: If smoking is allowed anywhere in an enclosed shopping mall concourse, then a violation of section
386.205, F.S., exists and shall be documented as: “Smoking permitted or designated in a prohibited area.” . Proposed rule 10D-105.009(11) reads: If smoking is allowed in an enclosed shopping mall food court and is not specifically regulated by the Department of Business and Professional Regulation, then a violation of section
386.205, F.S., exists and shall be documented as: "Smoking permitted or designated in a prohibited area.” . Proposed rule 10D-105.011 reads in pertinent part: (1) The proprietor or other person in charge of a public place may request an exemption from Florida Statutes sections
386.205 or
386.206, by submitting their requests in writing to the HRS State Health Officer. On the recommendation of the State Health Officer, the department may grant exemptions from the requirements of section
386.205(4) and
386.206, F.S., as an emergency or extraordinary circumstance which justifies exemption when compliance with the Florida Clean Indoor Air Act would result in a greater hazard to public health than would result from granting the exemption....
CopyAgo (Fla. Att'y Gen. 1989).
Published | Florida Attorney General Reports
...1 The act defines "[p]ublic place" to include "[g]overnment buildings," i.e., "any building or any portion of any building owned by or leased to the state or any political subdivision thereof and used for governmental purposes." 2 Smoking areas may be designated by the person in charge of the public place. 3 Section 386.205 (3), F.S., provides: In a workplace where there are smokers and nonsmokers, employers shall develop, implement, and post a policy regarding designation of smoking and nonsmoking areas....
...4 (e.s.) Where the language used by the Legislature makes clear its intent, that intent must be given effect. 5 Thus, absent a violation of a constitutional right, a specific, clear and precise statement of legislative intent will control in the interpretation of a statute. 6 While s. 386.205 (3), F.S., provides that an employer shall develop a policy concerning the designation of smoking and nonsmoking areas, taking into consideration the proportion of smokers and nonsmokers, the intent of the Legislature in adopting Part II of Ch....
...o product." 2 See, s.
386.203 (1) and (2), F.S., respectively. And see, s.
1.01 (9), F.S., defining "political subdivision" for purposes of the Florida Statutes to include "special tax school districts . . . and all other districts in this state." 3 Section
386.205 (1), F.S....
...As an agency charged with certain administrative duties under the act, such an interpretation would be accorded great deference. See, s.
386.207 , F.S., stating that the Department of Business Regulation and the Department of Health and Rehabilitative Services (HRS) shall enforce ss.
386.205 and
386.206 , F.S., requiring public agencies responsible for the management and maintenance of government buildings to report observed violations to HRS....
