CopyAgo (Fla. Att'y Gen. 2011).
Published | Florida Attorney General Reports
...May the district adopt a policy prohibiting tobacco use by its employees while they are being paid by the district for their time regardless of physical location, including outdoor locations and property not owned by the district? In sum: The regulation of smoking is preempted to the state pursuant to section 386.209 , Florida Statutes, and the St....
...s regardless of physical location. This prohibition would extend outdoors while in the district's employ, but it would not prohibit smoking when an employee is not being paid for his or her time by the district. 1 Question One You have asked whether section 386.209 , Florida Statutes, precludes the district from adopting a policy that would prohibit smoking in outdoor areas that are district property, e.g. , parking lots and walkways. Specifically, you have asked whether the district's proprietary authority to manage its property would support such a policy, notwithstanding section 386.209 , Florida Statutes. Prior to the most recent legislative session, section 386.209 , Florida Statutes, provided: "Regulation of smoking preempted to state. — This part expressly preempts regulation of smoking to the state and supersedes any municipal or county ordinance on the subject." 2 Effective July 1, 2011, section 386.209 , Florida Statutes, as amended by Chapter 2011-108 , Laws of Florida, has been amended to read as follows: "Regulation of smoking preempted to state....
...ing by persons on school district property. " (underlined text represents amendment). This amendment and others proposed during the 2011 legislative session were introduced to clearly express the Legislature's intent that the preemption contained in section 386.209 , Florida Statutes, extends to indoor and outdoor smoking. 3 Further, proprietary authority, such as the authority school districts undoubtedly possess to manage their own property, does not counter the broad preemption embodied in section 386.209 , Florida Statutes. 4 To conclude otherwise would make the 2011 amendment to section 386.209 , Florida Statutes, by Chapter 2011-108 , Laws of Florida, pointless. 5 In short, a legislative amendment to section 386.209 , Florida Statutes, was necessary to authorize school districts to restrict outdoor smoking on school district property. In light of the Legislature's implicit recognition that a special district's proprietary powers would not overcome the preemption language of section 386.209 , Florida Statutes, it is my opinion that a similar legislative change would be necessary to allow the district to adopt its proposed outdoor smoking policy....
...Stat., to develop policies for the terms and conditions of employment for district employees and for the management of district real property. Thus, this request is submitted in your capacity as executive director rather than on behalf of the governing board of the district. And see s.
373.083 (5), Fla. Stat. 2 Section
386.209 , Fla. Stat. 2010. 3 This conclusion is consistent with Attorney General Opinions which similarly construed section
386.209 as preempting outdoor smoking prohibitions....
CopyAgo (Fla. Att'y Gen. 2010).
Published | Florida Attorney General Reports
...2 In this instance, for purposes of regulating smoking, the Legislature has provided a much broader application of the act to regulate both indoor and outdoor smoking. The Legislature has preempted the field of smoking regulation and has clearly expressed its intent in section 386.209 , Florida Statutes: "Regulation of smoking preempted to state....
