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Florida Adds Vaping to Regulated Indoor Smoking

The Florida legislature recently amended the “Indoor Air: Tobacco Smoke” Act, §386.202 of the Florida Statutes, to restrict indoor vaping in addition to tobacco smoking in enclosed spaces. The amended act is now known as the “Indoor Air: Smoking and Vaping” Act. The new law went into effect on July 1, 2019.

The act broadly defines “vape” or “vaping” to include inhaling or exhaling vapor produced by a vapor-generating electronic device or possessing a vapor-generating electronic device while that device is actively employing an electronic, chemical, or mechanical means designed to produce vapor or aerosol from a nicotine product or any other substance. “Vaping,” however, does not include the mere possession of a vapor-generating electronic device. The act defines “vapor” as aerosolized or vaporized nicotine or other aerosolized or vaporized substance produced by a vapor-generating electronic device or exhaled by the person using such a device.

Florida also amended §386.204 to prohibit vaping as well as smoking in “an enclosed indoor workplace” unless it is a private residence not being used commercially to provide child care, adult care, or health care; a retail tobacco or vape shop; bars that do not serve food; and a few other limited exceptions.

The proprietor or other person in charge of an enclosed indoor workplace must develop and implement a policy regarding the smoking and vaping prohibitions. The enclosed indoor workplace policy must prohibit an employee from smoking or vaping, or both. Furthermore, the policy may include, but is not limited to, procedures to be taken when the proprietor or other person in charge witnesses or is made aware of a violation of section 386.204. The proprietor or other person in charge of an enclosed indoor workplace may, at his or her discretion, post signs to indicate that smoking or vaping, or both, are prohibited.

Under the act, any person who violates section 386.204 commits a noncriminal violation punishable by a fine of not more than $100 for the first violation and not more than $500 for each subsequent violation.

Notably, section 386.209, for the first time, permits municipal or county ordinances that impose more restrictive regulation on the use of vapor-generating devices than is provided by state law.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.


About this Author

Edmund McKEnna, Employment Litigator
Office Managing Shareholder

Ed McKenna’s practice primarily involves litigation, including Federal Rule 23 class actions, and advising employers how to avoid litigation. He has represented private/public employers in a variety of employment lawsuits -- including Title VII, ADEA, ADA, FMLA, FLSA, wrongful discharge, whistle blowing, and defamation -- before agencies and in state and federal courts. He has been involved in numerous employment class and collective action cases, including significant decisions involving the denial of class certification. He is also experienced with union issues, including unfair labor...