Florida smoking ban not so smoke-free

State smoking cities/counties over smoking bans FLINV Investigative Report BROADCAST

By: Katie LaGrone, Matthew Scott Apthorp

New questions over Florida's smoking ban after we discover a little-known clause in Florida's smoking laws makes it perfectly legal to smoke where you least expect it!

Just when you thought Florida's tobacco fight was old news, we've discovered a-little-known clause in smoking laws here causing both sides to light up.

It's called preemption, a fancy political term that boils to this: cities and counties across the state are completely powerless to ban smoking!

That's right, 14 years after Florida banned smoking in restaurants and workplaces, lighting up remains perfectly legal on every local beach, ball field, park even playground!

"I was under the assumption that they had the power to do that," said Mike Reiker who spent decades smoking cigarettes before making the transition to cigars.

"Just because we're out in an open area doesn't mean that second hand smoke isn't blowing directly in one of my children's faces," said Julie Featherston. Featherston is a life-long beach lover who helped inspire a volunteer effort to rid Treasure Island beaches of plastic straws two years ago. She also tried to fight Florida's tobacco preemption clause when she started an online petition a few years ago.

"It's really a censorship of our democracy and it disallows communities to take control and really govern themselves," she told us recently.

Sarasota County learned about the state loophole in after a judge ruled its 5-year-long smoking ban at some parks and beaches was illegal.

"This is a no brainer to me," said County Commissioner Charles Hines who was on the board when the judge made the ruling in 2013. "You need continuity across the state, I get that but this one in regards to smoking in county parks that we run that we pay for and that we maintain, I don't see a statewide interest in that," he said.

But fighting it has blown up in smoke.

The most recent legislative efforts to give local governments smoking clout failed not once, not twice but four times between 2011 and 2014.

Florida remains one of just 8 U.S. states to keep full say over cigs under state control.

"Give me a reasonable reason for not being able to smoke at a park," said Reiker. "It's open air," he said while smoking a cigar in Ybor City, also known as Florida's cigar city. The historic neighborhood dates back to the 1880's. It's where cigar makers span generations and stogie-smoking is just part of the job for neighborhood Ambassador, Robert Alorda.

"You get communities like this, they depend on the sale of cigars and tobacco. You take it away from them, you take their livelihood," Alorda said when asked about giving local governments control over tobacco rules.

Florida's Retail Federation agrees. "Having each local government pass their own ordinances just creates a patchwork of inconsistent regulations," said FRF Communications Director James Miller. He added, "it will only create additional business expenses and inconvenience and confusion for customers. FRF believes this issue should be handled at the state level," he said.

"Just like state to state there's a patchwork of ordinances," said Featherston. "As long as there are signs and education, I don't see the problem," she said.

Except, perhaps the legislature which, historically, has taken up the issue of smoking in local parks only to watch it burn.

At least one Florida lawmaker is currently studying the issue to determine if new legislation will be introduced to give local governments control over tobacco.

If legislation is introduced this year, one of the biggest challengers lawmakers will have to contend with is big tobacco. In the past, tobacco companies have been among the loudest voices to testify against it.