All those “No Smoking” signs at county beaches and parks are flat-out wrong, it turns out.
County can’t ban smoking, its attorney says
January 8, 2013
By Jeremy Wallace
SARASOTA COUNTY – All those “No Smoking” signs at county beaches and parks are flat-out wrong, it turns out.
Sarasota County discovered Tuesday that it is powerless to stop smoking at public beaches, parks, youth sports fields or even in front of public libraries despite years of passing laws to the contrary.
County attorney Stephen E. DeMarsh told county commissioners that the nearly five-year-old law banning smoking on public beaches is likely unenforceable, as is the roughly $100 fine that can come with each violation. Dozens of other smoking bans passed by local governments around Florida also could be in jeopardy.
“Something doesn’t make sense here,” County Commissioner Charles Hines said. “Can you imagine a coach sitting in a Little League dugout smoking a cigarette with little 8-year-old kids running around?”
Hines said the county should have the final say over what is allowable at county-run parks.
But DeMarsh said a recent court decision striking down Sarasota’s ban on smoking in public areas set key case law that essentially invalidated local public smoking bans. In that December decision, Sarasota County Judge Maryann Boehm ruled that the city’s tough new ordinance banning smoking in public parks was unenforceable, and that regulating smoking is a task left solely to the Legislature. Boehm said the Legislature’s statutes on the matter are unambiguous and show lawmakers clearly intended to maintain authority over all smoking laws.
The issue is rooted in a 2003 Florida law that created smoke-free restaurants and workplaces. While the law banned smoking in workplaces, it also declared that only the Legislature could ban smoking in other places, such as parks and beaches.
Even so, dozens of counties and cities have passed smoking bans for public beaches and parks, ignoring the legislation and years of warnings from Florida’s past attorneys general.
“The plain language of this preemptory provision makes it clear that the Legislature has directed that the state, not local governments, regulates smoking wherever it may occur,” then-Florida Attorney General Bill McCollum wrote in a 2010 opinion.
Current Attorney General Pam Bondi and former attorney general Charlie Crist have issued similar opinions declaring that only the Legislature can ban smoking in public places.
Although scores of Florida cities and counties have since passed smoking bans at beaches and parks, they are most likely unenforceable because of the 2003 act, says Americans for Nonsmoker’s Rights, a national advocacy group that has been warning local governments for years about Florida’s loophole.
“The implications are that the poor localities don’t have local authority to pass smoking laws that their communities want,” said Cynthia Hallett, the group’s executive director.
The only option is for Florida residents to press the Legislature to change the law and give local governments authority to pass public smoking bans, as Louisiana, Illinois, Delaware and other states have done in recent years, Hallett said.
“The bad news is you have this case law now,” Hallett said. “But the good news is that it gives cities more impetus to lobby the Legislature to restore local control.”
The ruling against Sarasota County already is having an impact beyond its borders. In Gulfport in Pinellas County, city officials are altering their ban on beach smoking after an attorney there challenged the ordinance last year. Rather than defend the measure in court, the city is rewriting it to avoid conflicting with state law.
“This is a bigger issue than smoking or not smoking,” said Andy G. Strickland, who led the lawsuit against Gulfport. “To me this is about the size and scope of government.”
Strickland, a cigar smoker, said local governments are overstepping their bounds by banning smoking on public beaches and parks when the Legislature has clearly prohibited them from enacting such restrictions. He said if governments are worried about litter, they should pass laws banning litter, not banning a legal activity like smoking.
Strickland said smokers have been trying to fight the local laws in court to create case law, but most times, cities and counties were not “stupid enough” to defend their unconstitutional laws in court. Then came Sarasota County, which lost its case in December and is considering an appeal.
County officials say they will turn to the Legislature and try to convince lawmakers that local governments need authority to enact smoking bans for beaches and parks.
“It’s a public health issue,” County Commissioner Joe Barbetta said.
What is frustrating is that the Legislature amended the law years ago to give school districts the authority to ban smoking near schools, but did not give counties the authority to protect those same students at public libraries or parks, he said.
“I don’t think the public knows we’ve lost our ability to enforce these laws,” Barbetta said.
State Rep. Doug Holder, R-Sarasota, said he has heard nothing about the issue for the last two years in the Legislature. Holder said he is open to discussing the issue, but has heard nothing so far to suggest it is a top priority for 2013.
Commissioner Carolyn Mason said she is hopeful the Legislature will give counties the authority to pass tougher smoking bans.
“It’s not a good thing for the state Legislature to undermine the authority of local governments,” Mason said.