Most of us remember the heated discussions concerning the impact of the 2002 anti-smoking constitutional amendment on restaurants and bars. Most of us did not, however, fully realize the impact that this new law would have on other gathering places such as community association buildings.

    As a starting point, this amendment completely changed the way that smoking is regulated by using the following new concept:

Article X, Section 20. Workplaces without tobacco smoke. --

1(a) PROHIBITION. As a Florida health initiative to protect people from the health hazards of second-hand tobacco smoke, tobacco smoking is prohibited in enclosed indoor workplaces.

    Prior to the adoption of the amendment, smoking was regulated by compiling lists of locations where smoking was prohibited. For instance, smoking at Association meetings was prohibited in the following way:

386.204 Prohibition. – A person may not smoke in a public place or at a public meeting except in designated smoking areas... (Emphasis added.)

386.203 Definitions. – As used in this part:

(3) 'Public meeting' means all meetings open to the public, including meetings of homeowners, condominium or renter or tenant associations unless such meetings are held in a private residence. (Emphasis added.)

    From and after the amendment, however, all smoking restrictions were required to be based on revised Section 386.204 which now reads as follows:

386.204 Prohibition. – A person may not smoke in an enclosed indoor workplace, except as otherwise provided in s. 386.2045. (Emphasis added)

    As you will note, the definition of 'enclosed indoor workplace' is critical to this new law. And here, the legislature has broadly defined this term using the following two concepts:

(5) 'Enclosed indoor workplace' means 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... (Emphasis added.)

(12) 'Work' means any person’s providing any employment or employment-type service for or at the request of another individual or individuals or any public or private entity, whether for compensation or not, whether full or part time, whether legally or not. 'Work' includes, without limitation, any such services performed by an employee, independent contractor, agent, partner, proprietor, manager, officer, director, apprentice, trainee, associate, servant, volunteer, and the like.... (Emphasis added.)

    The Florida Department of Health has been assigned the duty of interpreting and enforcing this law. Consistent with the broad language of the amendment and the statutes it has taken the following paraphrased position:

Except for the locations permitted by Section 386.2045, no one may smoke inside of any enclosed area (as defined above) where anyone at any time has ever performed work (as defined above). The permitted smoking locations are:

1. Private Residences, unless child care, adult care or health care is provided in the residence;

2. Retail tobacco shops;

3. Designated smoking guest rooms at hotels, motels, etc.;

4. Stand alone bars;

5. Clinics where smoking is being studied or where smoking cessation programs are being held; and

6. Customs rooms operated by the Bureau of Customs and Border Protection of the United States Department of Homeland Security.

    Specifically, by applying this broad interpretation to community associations, the Department of Health has come to the conclusion that no one may smoke inside of any enclosed community association structure if anyone has ever performed 'work' in that structure. This would include janitorial staff or contractors, the use of the structure by a manager, the visit by an attorney, CPA or other professionals, etc. In other words, as soon as any 'work' is performed in the enclosed structure, it is forever excluded as a smoking area.

    Accordingly, the vast majority of all community association structures are now smoke free zones and will remain smoke free zones unless and until the law is changed.

    Because most of the above is based on non-published interpretations by the Department of Health, you may wish to contact it through if you have any specific questions relating to one of your structures.

The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.

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