Miami-Dade Legislative Item
File Number: 132600
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File Number: 132600 File Type: Resolution Status: Adopted
Version: 0 Reference: R-145-14 Control: Board of County Commissioners
File Name: ELECTRONIC CIGARETTE REGULATION Introduced: 12/30/2013
Requester: NONE Cost: Final Action: 2/4/2014
Agenda Date: 2/4/2014 Agenda Item Number: 11A16
Notes: Title: RESOLUTION SETTING POLICY FOR MIAMI-DADE COUNTY; PROHIBITING THE USE OF ELECTRONIC CIGARETTES AND OTHER NICOTINE DISPENSING DEVICES IN COUNTY OWNED OR OPERATED ENCLOSED INDOOR WORKPLACES; PROVIDING EXCEPTIONS; DIRECTING THE MAYOR OR DESIGNEE TO PREPARE FOR BOARD APPROVAL REVISIONS TO APPLICABLE IMPLEMENTING ORDERS AND OTHER RULES TO EFFECTUATE THIS POLICY AT ALL COUNTY ENCLOSED INDOOR WORKPLACES
Indexes: CIGARETTES
Sponsors: Juan C. Zapata, Prime Sponsor
  Sally A. Heyman, Co-Sponsor
  Barbara J. Jordan, Co-Sponsor
  Jean Monestime, Co-Sponsor
Sunset Provision: No Effective Date: Expiration Date:
Registered Lobbyist: None Listed


Legislative History

Acting Body Date Agenda Item Action Sent To Due Date Returned Pass/Fail

Board of County Commissioners 2/4/2014 11A16 Adopted P

Health & Social Services Committee 1/13/2014 2B Forwarded to BCC with a favorable recommendation P
REPORT: Assistant County Attorney Terrence Smith read the foregoing proposed resolution into the record. Commissioner Diaz asked whether there was any evidence that the nicotine in electronic cigarettes was harmful to third parties inhaling it. He noted it was his understanding that the United States Food and Drug Administration (FDA) had deemed that second hand smoke from these cigarettes was not harmful. He said that this item would curtail the rights of people to use a product that did not harm others; and he had a concern as it involved adults exercising their rights. Assistant County Attorney Jess McCarty pointed out that it had not been conclusively determined whether the nicotine in electronic cigarettes had negative health implications. He noted this item would simply expand the state law prohibition on a person smoking a “lighted tobacco product” in an enclosed workplace, and make the prohibition applicable to the use of electronic cigarettes in enclosed areas within County facilities. He said that complaints had been lodged in various courts about the vapor from the electronic cigarettes. Commissioner Diaz pointed out that notwithstanding the complaints the FDA had carried out tests which demonstrated that this product was safe. Assistant County Attorney McCarty advised that it was within the Board’s prerogative to decide whether to regulate the use of electronic cigarettes in County facilities. He noted state law was pre-emptive and only covered cigarettes that contain tobacco. Commissioner Diaz said that although they had nicotine, the electronic cigarettes were filled with liquid and did not contain tobacco. He pointed out that some people who were trying to stop smoking used electronic cigarettes, and this item would limit their right to do so. He said that he found this item problematic because he did not know if there was any evidence that this product could harm third parties. Commissioner Bell said that when she first read the item she had some doubts about it, but she believed that she could support it since the prohibition would only apply to County buildings. She noted the most problematic aspect of electronic cigarettes was that the effects of the vapors on third parties were unknown. However, since the prohibition would only apply inside County buildings, she stated that she was inclined to allow the item to move forward. Commissioner Souto suggested that the sponsor of the item, Commissioner Zapata, be given the opportunity to present the evidence and his reasons for putting it forth. Chairwoman Edmonson noted she agreed with Commissioner Souto. She said she understood that a number of complaints had been made regarding the use of electronic cigarettes inside County buildings. In addition, she stated, the conclusions from the initial tests, which found that these products were safe, were being questioned. She noted she would like to hear from Commissioner Zapata, the sponsor. Commissioner Diaz asked whether it would be possible to move the item to the Board of County Commissioners (BCC) without a recommendation. Commissioner Bell said that she would prefer to move it with a recommendation. Hearing no further questions or comments, the Committee members proceeded to vote on the foregoing proposed resolution, as presented.

County Attorney 12/30/2013 Referred Health & Social Services Committee 1/13/2014

County Attorney 12/30/2013 Assigned Jess M. McCarty 1/2/2014

Legislative Text


TITLE
RESOLUTION SETTING POLICY FOR MIAMI-DADE COUNTY; PROHIBITING THE USE OF ELECTRONIC CIGARETTES AND OTHER NICOTINE DISPENSING DEVICES IN COUNTY OWNED OR OPERATED ENCLOSED INDOOR WORKPLACES; PROVIDING EXCEPTIONS; DIRECTING THE MAYOR OR DESIGNEE TO PREPARE FOR BOARD APPROVAL REVISIONS TO APPLICABLE IMPLEMENTING ORDERS AND OTHER RULES TO EFFECTUATE THIS POLICY AT ALL COUNTY ENCLOSED INDOOR WORKPLACES

BODY
WHEREAS, electronic cigarettes, also known as e-cigarettes, are battery-powered products that permit users to inhale vaporized nicotine, flavor, and other chemicals, without fire, smoke, ash or carbon dioxide; and
WHEREAS, most electronic cigarettes and other nicotine dispensing devices (hereinafter referred to collectively as ''electronic cigarettes'') are manufactured to resemble cigarettes, cigars or pipes, but some are manufactured to resemble pens and Universal Serial Bus (USB) memory sticks; and
WHEREAS, sales of electronic cigarettes have grown rapidly in the United States, and after doubling every year since 2008, sales in 2013 accelerated even faster and were projected to reach $1.7 billion; and
WHEREAS, consumers are led to believe that electronic cigarettes are a safe alternative to traditional cigarettes, despite the fact that most electronic cigarettes contain nicotine and have the potential to be addictive; and
WHEREAS, there is no federal regulatory oversight ensuring the safety of the ingredients in electronic cigarettes; and
WHEREAS, the National Association of Attorneys General issued a letter to the Commissioner of the United States Food & Drug Administration (FDA) urging the FDA to immediately regulate the sale and advertising of electronic cigarettes; and
WHEREAS, the letter was signed by 42 attorneys general, including Florida Attorney General Pam Bondi; and
WHEREAS, in 2002, Florida voters approved an amendment to the Florida Constitution that:
1. Prohibited smoking of lighted tobacco products in enclosed workplaces with certain exceptions; and

2. Authorized the Legislature to enact implementing legislation, Article X, Section 20 of the Florida Constitution; and

WHEREAS, during Special Session A in 2003, the Florida Legislature enacted Chapter 2003-398, Laws of Florida (HB 63A), which substantially amended the Florida Clean Indoor Air Act to prohibit a person from smoking lighted tobacco products in an enclosed indoor workplace, while recognizing certain exceptions; and
WHEREAS, the exceptions where smoking lighted tobacco products is still permitted include, among others, the following:
1. Customs smoking rooms in airport in-transit lounges meeting certain criteria;

2. Private residences not being used commercially to provide child care, adult care or health care;

3. Designated smoking guest rooms at public lodging establishments; and

4. Stand-alone bars devoted predominantly or totally to serving alcohol, and in which the serving of food, if any, is merely incidental to the consumption of alcoholic beverages; and

WHEREAS, the term ''smoking'' was defined in both the constitutional amendment and Chapter 2003-398 to mean inhaling, exhaling, burning, carrying, or possessing any ''lighted tobacco product,'' including cigarettes, cigars, pipe tobacco, and any other lighted tobacco product; and
WHEREAS, Chapter 2003-398 expressly preempted regulation of smoking lighted tobacco products to the state and superseded any municipal or county ordinance on the subject; and
WHEREAS, electronic cigarettes are not ''lighted'' the way a cigarette is ignited with a match; and
WHEREAS, instead, electronic cigarettes function by heating into a vapor a liquid consisting of tobacco, nicotine, flavored water or other chemicals; and
WHEREAS, while electronic cigarettes typically (though not always) contain nicotine, electronic cigarettes usually do not contain tobacco; and
WHEREAS, for these reasons, electronic cigarettes do not fall within the state law prohibition on a person smoking a ''lighted tobacco product'' in an enclosed indoor workplace; and
WHEREAS, in addition, electronic cigarettes do not fall within the state preemption of local regulation of smoking a ''lighted tobacco product'' in an enclosed indoor workplace; and
WHEREAS, both members of the public and employees are increasingly using electronic cigarettes within County enclosed indoor workplaces, including but not limited to courthouses and county administration buildings; and
WHEREAS, such use of electronic cigarettes within County enclosed indoor workplaces has proven disruptive to administrative and court functions; and
WHEREAS, the County has received multiple complaints regarding the use of electronic cigarettes within County enclosed indoor workplaces; and

WHEREAS, concerns have been raised as to the safety, health and environmental effects of the vapor emitted from electronic cigarettes, both to the persons using electronic cigarettes and to people in the surrounding area who may have to breathe the vapor emitted from electronic cigarettes secondhand; and
WHEREAS, some individuals using electronic cigarettes have indicated that they are not violating the law because it is flavored water vapor that was neither lighted nor a tobacco product, and therefore not prohibited by the Florida Clean Indoor Air Act; and
WHEREAS, it is difficult to tell which electronic cigarettes are emitting nicotine and carcinogens and which are simply emitting a flavored vapor, but in either case, electronic cigarettes are proving disruptive to County administrative and court functions; and
WHEREAS, for the reasons set forth above, this Board would like to prohibit the use of electronic cigarettes and other nicotine dispensing devices in County enclosed indoor workplaces that do not fall within the Florida Clean Indoor Air Act, unless an exception applies; and
WHEREAS, it is the intent of this Board to prohibit the use of electronic cigarettes and other nicotine dispensing devices in County owned or operated enclosed indoor workplaces consistent with the state law prohibition on the use of lighted tobacco products under the Florida Clean Indoor Air Act,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that:
Section 1. The foregoing recitals are hereby incorporated into this resolution and approved.
Section 2. It is the policy of Miami-Dade County that the use of electronic cigarettes and other nicotine dispensing devices is prohibited in all enclosed indoor workplaces owned or operated by the County consistent with state law for lighted tobacco products, the Florida Clean Indoor Air Act, Part II of Chapter 386, Florida Statutes, as such may be amended from time to time, unless an exception applies. This policy also shall apply to enclosed indoor workplaces operated within the designated facilities of the Public Health Trust.
Section 3. For purposes of this policy:

(a) ''Nicotine dispensing devices'' mean any product that can be used to deliver nicotine to an individual by inhaling a vapor from the product, whether or not such vapor actually includes nicotine, including, but not limited to, an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or other similar device or product.

(b) ''Enclosed indoor workplace'' shall have the same meaning as set forth in section 386.203, Florida Statutes, as such may be amended from time to time.

Section 4. The specific exceptions set forth in the Florida Clean Indoor Air Act, Part II of Chapter 386, Florida Statutes, as such may be amended from time to time, shall also apply to this policy. The use of electronic cigarettes and other nicotine dispensing devices shall be permitted in places owned or operated by the County recognized as exceptions under state law, including, but not limited to, each of the following places owned or operated by the County:
1. Customs smoking rooms in airport in-transit lounges meeting certain criteria;

2. Private residences not being used commercially to provide child care, adult care or health care;

3. Designated smoking guest rooms at public lodging establishments; and

4. Stand-alone bars devoted predominantly or totally to serving alcohol, and in which the serving of food, if any, is merely incidental to the consumption of alcoholic beverages.

Section 5. This resolution and any implementing order or other policy statement prohibiting the use of electronic cigarettes and other nicotine dispensing devices shall only apply to electronic cigarettes and other nicotine dispensing devices that are not otherwise prohibited by the Florida Clean Indoor Air Act, Part II of Chapter 386, Florida Statutes, as such may be amended from time to time.
Section 6. Within 60 days of the effective date of this resolution, the Mayor or designee is directed to prepare for Board approval revisions to applicable Implementing Orders and other departmental rules and regulations to effectuate the policy directive set forth in this resolution.



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