By Rachel Brown Hackney
Newly elected state Sen. Joe Gruters of Sarasota is hoping to accomplish something that has eluded county commissioners for years: ending smoking on the public beaches.
On Jan. 2, Gruters filed Senate Bill 218. Formally, it says, “Prohibiting the smoking of tobacco on public beaches; providing civil penalties; authorizing a law enforcement officer to issue a citation as prescribed by a county or municipality to any person who smokes tobacco on a public beach; specifying that a person who fails to comply with the directions on the citation waives the right to contest the citation and authorizing the court to issue an order to show cause …”
The civil penalty would be $25 or 10 hours of community service, the bill says.
The bill would take effect on July 1, if it passes the Florida Legislature. This year, the legislative session will begin on March 1 and end on May 3.
A little more than six years ago, then-Sarasota County Commissioner Joe Barbetta talked of his desire to see smoking banned around county libraries. As it turned out, not only had the state Legislature made that impossible, but county staff ultimately had to remove the “No Smoking” signs at the public beaches.
In a December 2012 court ruling involving the City of Sarasota, a 12th Judicial Circuit Court judge pointed to a state law that prevents local governments from imposing smoking bans on public property.
“This is really disturbing to me. I can’t believe this is happening,” Barbetta said during the Jan. 8, 2013 County Commission meeting.
Then-Commissioner Nora Patterson, a long-time Siesta Key resident, made a motion to seek a change in Florida law to allow local governments to regulate smoking on public lands. Although her motion passed unanimously, the board was unable to achieve any degree of success at the state level.
On Aug. 28, 2018, when the County Commission approved its priorities for the 2019 legislative session, it included the following among them: “Support legislation to allow local governments to regulate outdoor smoking on public property under their jurisdiction.”
After the December 2012 court ruling, the Sheriff’s Office ceased enforcing the county ban on smoking on the beach. Sgt. Scott Osborne, then the leader of the Siesta substation, reported that the fine for a citation had been $100.
In her Dec. 10, 2012 ruling, Circuit Judge Maryann Boehm pointed to the City of Sarasota’s claim that “it is unclear whether the Legislature intended to preempt to the State the regulation of all smoking indoors and outdoors…”
She added, “There is no case law directly on point that construes the preemption provision at issue in this case. The Defendant cites several favorable legal opinions rendered by the Florida Attorney General on the subject. Although such opinions have no binding precedential value, the Court finds their reasoning to be sound and is persuaded that [the statute] constitutes an express and unambiguous statement of the Legislature’s intent to preempt the regulation of all smoking, wherever located, to the State.”
A July 21, 2011 opinion issued by the Florida Attorney General’s Office in a case involving the St. Johns River Water Management District — provided by the Office of the County Attorney — is one example of the opinions Boehm referenced. It says, “In sum: The Regulation of smoking is preempted to the state pursuant to [the Clean Indoor Air Act], and the … District may not adopt a policy prohibiting smoking or tobacco use that is broader than the terms of [that statute].”
When Stephen Leatherman of Florida International University in Miami — known as Dr. Beach — first named Siesta Public Beach No. 1 in the United States in 2011, one of the factors he cited was the policy against smoking. In remarks several years later to a Siesta Key Association audience, Leatherman talked about how much he loathes sitting down on a beach and putting his hands in the sand only to find lots of butts.
In fact, when Leatherman started his Top 10 Beaches list all over again in 2016 — enabling past winners to take top honors again after having previously been removed from the competition — he pointed out that he would be giving extra credit to those that banned smoking. He told the Associated Press in 2016,
“The No. 1 form of litter on beaches is cigarette butts, and it is disgusting.”
Gruters’ bill has received quite a bit of attention around the state. The big question, of course, is whether he can get it passed.