Bill Amendment: FL S1080 | 2021 | Regular Session
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: Tobacco and Nicotine Products
Status: 2021-05-11 - Chapter No. 2021-14 [S1080 Detail]
Download: Florida-2021-S1080-Senate_Floor_Substitue_Amendment_465114_to_Amendment_226212_.html
Bill Title: Tobacco and Nicotine Products
Status: 2021-05-11 - Chapter No. 2021-14 [S1080 Detail]
Download: Florida-2021-S1080-Senate_Floor_Substitue_Amendment_465114_to_Amendment_226212_.html
Florida Senate - 2021 SENATOR AMENDMENT
Bill No. CS for CS for SB 1080
Ì465114|Î465114
LEGISLATIVE ACTION
Senate . House
.
.
.
.
.
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
Senator Hutson moved the following:
1 Senate Substitute for Amendment (226212) (with directory
2 and title amendments)
3
4 Delete lines 290 - 1152
5 and insert:
6 (2)(a) Permits may be issued only to persons who are 21 18
7 years of age or older or to corporations the officers of which
8 are 21 18 years of age or older.
9 Section 9. Section 569.004, Florida Statutes, is amended to
10 read:
11 569.004 Consent to inspection and search without warrant.
12 An applicant for a permit, by accepting the permit when issued,
13 agrees that the place or premises covered by the permit is
14 subject to inspection and search without a search warrant by the
15 division or its authorized assistants, and by sheriffs, deputy
16 sheriffs, or police officers, to determine compliance with this
17 chapter, including part II of this chapter if the applicant
18 deals, at retail, in nicotine products within the state or
19 allows a nicotine products vending machine to be located on its
20 premises within the state.
21 Section 10. Section 569.006, Florida Statutes, is amended
22 to read:
23 569.006 Retail tobacco products dealers; administrative
24 penalties.—The division may suspend or revoke the permit of the
25 dealer upon sufficient cause appearing of the violation of any
26 of the provisions of this chapter, including part II of this
27 chapter if the dealer deals, at retail, in nicotine products
28 within the state or allows a nicotine products vending machine
29 to be located on its premises within the state, by a dealer or
30 by a dealer’s agent or employee. The division may also assess
31 and accept administrative fines of up to $1,000 against a dealer
32 for each violation. The division shall deposit all fines
33 collected into the General Revenue Fund as collected. An order
34 imposing an administrative fine becomes effective 15 days after
35 the date of the order. The division may suspend the imposition
36 of a penalty against a dealer, conditioned upon the dealer’s
37 compliance with terms the division considers appropriate.
38 Section 11. Subsections (1), (2), and (4) of section
39 569.007, Florida Statutes, are amended to read:
40 569.007 Sale or delivery of tobacco products;
41 restrictions.—
42 (1) In order to prevent persons under 21 18 years of age
43 from purchasing or receiving tobacco products, the sale or
44 delivery of tobacco products is prohibited, except:
45 (a) When under the direct control or line of sight of the
46 dealer or the dealer’s agent or employee; or
47 (b) Sales from a vending machine are prohibited under the
48 provisions of paragraph (1)(a) and are only permissible from a
49 machine that is equipped with an operational lockout device
50 which is under the control of the dealer or the dealer’s agent
51 or employee who directly regulates the sale of items through the
52 machine by triggering the lockout device to allow the dispensing
53 of one tobacco product. The lockout device must include a
54 mechanism to prevent the machine from functioning if the power
55 source for the lockout device fails or if the lockout device is
56 disabled, and a mechanism to ensure that only one tobacco
57 product is dispensed at a time.
58 (2) The provisions of subsection (1) shall not apply to an
59 establishment that prohibits persons under 21 18 years of age on
60 the licensed premises.
61 (4) A dealer or a dealer’s agent or employee must may
62 require proof of age of a purchaser of a tobacco product before
63 selling the product to that person, unless the purchaser appears
64 to be 30 years of age or older.
65 Section 12. Section 569.0075, Florida Statutes, is amended
66 to read:
67 569.0075 Gift of sample tobacco products prohibited.—The
68 gift of sample tobacco products to any person under the age of
69 21 18 by an entity licensed or permitted under the provisions of
70 chapter 210 or this part chapter, or by an employee of such
71 entity, is prohibited and is punishable as provided in s.
72 569.101.
73 Section 13. Subsection (1), paragraphs (b) and (c) of
74 subsection (2), and subsection (3) of section 569.008, Florida
75 Statutes, are amended to read:
76 569.008 Responsible retail tobacco products dealers;
77 qualifications; mitigation of disciplinary penalties; diligent
78 management and supervision; presumption.—
79 (1) The Legislature intends to prevent the sale of tobacco
80 products to persons under 21 18 years of age and to encourage
81 retail tobacco products dealers to comply with responsible
82 practices in accordance with this section.
83 (2) To qualify as a responsible retail tobacco products
84 dealer, the dealer must establish and implement procedures
85 designed to ensure that the dealer’s employees comply with the
86 provisions of this part chapter. The dealer must provide a
87 training program for the dealer’s employees which addresses the
88 use and sale of tobacco products and which includes at least the
89 following topics:
90 (b) Methods of recognizing and handling customers under 21
91 18 years of age.
92 (c) Procedures for proper examination of identification
93 cards in order to verify that customers are not under 21 18
94 years of age.
95 (3) In determining penalties under s. 569.006, the division
96 may mitigate penalties imposed against a dealer because of an
97 employee’s illegal sale of a tobacco product to a person under
98 21 18 years of age if the following conditions are met:
99 (a) The dealer is qualified as a responsible dealer under
100 this section.
101 (b) The dealer provided the training program required under
102 subsection (2) to that employee before the illegal sale
103 occurred.
104 (c) The dealer had no knowledge of that employee’s
105 violation at the time of the violation and did not direct,
106 approve, or participate in the violation.
107 (d) If the sale was made through a vending machine, the
108 machine was equipped with an operational lock-out device.
109 Section 14. Section 569.009, Florida Statutes, is amended
110 to read:
111 569.009 Rulemaking authority.—The division shall adopt any
112 rules necessary to administer and enforce the provisions of this
113 part chapter.
114 Section 15. Section 569.101, Florida Statutes, is amended
115 to read:
116 569.101 Selling, delivering, bartering, furnishing, or
117 giving tobacco products to persons under 21 18 years of age;
118 criminal penalties; defense.—
119 (1) It is unlawful to sell, deliver, barter, furnish, or
120 give, directly or indirectly, to any person who is under 21 18
121 years of age, any tobacco product.
122 (2) Any person who violates subsection (1) commits a
123 misdemeanor of the second degree, punishable as provided in s.
124 775.082 or s. 775.083. However, any person who violates
125 subsection (1) for a second or subsequent time within 1 year of
126 the first violation, commits a misdemeanor of the first degree,
127 punishable as provided in s. 775.082 or s. 775.083.
128 (3) A person charged with a violation of subsection (1) has
129 a complete defense if, at the time the tobacco product was sold,
130 delivered, bartered, furnished, or given:
131 (a) The buyer or recipient falsely evidenced that she or he
132 was 21 18 years of age or older;
133 (b) The appearance of the buyer or recipient was such that
134 a prudent person would believe the buyer or recipient to be 21
135 18 years of age or older; and
136 (c) Such person carefully checked a driver license or an
137 identification card issued by this state or another state of the
138 United States, a passport, or a United States armed services
139 identification card presented by the buyer or recipient and
140 acted in good faith and in reliance upon the representation and
141 appearance of the buyer or recipient in the belief that the
142 buyer or recipient was 21 18 years of age or older.
143 Section 16. Section 569.11, Florida Statutes, is amended to
144 read:
145 569.11 Possession, misrepresenting age or military service
146 to purchase, and purchase of tobacco products by persons under
147 21 18 years of age prohibited; penalties; jurisdiction;
148 disposition of fines.—
149 (1) It is unlawful for any person under 21 18 years of age
150 to knowingly possess any tobacco product. Any person under 21 18
151 years of age who violates this subsection commits a noncriminal
152 violation as provided in s. 775.08(3), punishable by:
153 (a) For a first violation, 16 hours of community service
154 or, instead of community service, a $25 fine. In addition, the
155 person must attend a school-approved anti-tobacco program, if
156 locally available; or
157 (b) For a second or subsequent violation within 12 weeks
158 after the first violation, a $25 fine.
159
160 Any second or subsequent violation not within the 12-week period
161 after the first violation is punishable as provided for a first
162 violation.
163 (2) It is unlawful for any person under 21 18 years of age
164 to misrepresent his or her age or military service for the
165 purpose of inducing a dealer or an agent or employee of the
166 dealer to sell, give, barter, furnish, or deliver any tobacco
167 product, or to purchase, or attempt to purchase, any tobacco
168 product from a person or a vending machine. Any person under 21
169 18 years of age who violates this subsection commits a
170 noncriminal violation as provided in s. 775.08(3), punishable
171 by:
172 (a) For a first violation, 16 hours of community service
173 or, instead of community service, a $25 fine and, in addition,
174 the person must attend a school-approved anti-tobacco program,
175 if available; or
176 (b) For a second or subsequent violation within 12 weeks
177 after the first violation, a $25 fine.
178
179 Any second or subsequent violation not within the 12-week period
180 after the first violation is punishable as provided for a first
181 violation.
182 (3) Any person under 21 18 years of age cited for
183 committing a noncriminal violation under this section must sign
184 and accept a civil citation indicating a promise to appear
185 before the county court or comply with the requirement for
186 paying the fine and must attend a school-approved anti-tobacco
187 program, if locally available. If a fine is assessed for a
188 violation of this section, the fine must be paid within 30 days
189 after the date of the citation or, if a court appearance is
190 mandatory, within 30 days after the date of the hearing.
191 (4) A person charged with a noncriminal violation under
192 this section must appear before the county court or comply with
193 the requirement for paying the fine. The court, after a hearing,
194 shall make a determination as to whether the noncriminal
195 violation was committed. If the court finds the violation was
196 committed, it shall impose an appropriate penalty as specified
197 in subsection (1) or subsection (2). A person who participates
198 in community service shall be considered an employee of the
199 state for the purpose of chapter 440, for the duration of such
200 service.
201 (5)(a) If a person under 21 18 years of age is found by the
202 court to have committed a noncriminal violation under this
203 section and that person has failed to complete community
204 service, pay the fine as required by paragraph (1)(a) or
205 paragraph (2)(a), or attend a school-approved anti-tobacco
206 program, if locally available, the court may direct the
207 Department of Highway Safety and Motor Vehicles to withhold
208 issuance of or suspend the driver license or driving privilege
209 of that person for a period of 30 consecutive days.
210 (b) If a person under 21 18 years of age is found by the
211 court to have committed a noncriminal violation under this
212 section and that person has failed to pay the applicable fine as
213 required by paragraph (1)(b) or paragraph (2)(b), the court may
214 direct the Department of Highway Safety and Motor Vehicles to
215 withhold issuance of or suspend the driver license or driving
216 privilege of that person for a period of 45 consecutive days.
217 (6) Eighty percent of all civil penalties received by a
218 county court pursuant to this section shall be remitted by the
219 clerk of the court to the Department of Revenue for transfer to
220 the Department of Education to provide for teacher training and
221 for research and evaluation to reduce and prevent the use of
222 tobacco products by children. The remaining 20 percent of civil
223 penalties received by a county court pursuant to this section
224 shall remain with the clerk of the county court to cover
225 administrative costs.
226 Section 17. Section 569.12, Florida Statutes, is amended to
227 read:
228 569.12 Jurisdiction; tobacco product and nicotine product
229 enforcement officers or agents; enforcement.—
230 (1) In addition to the Division of Alcoholic Beverages and
231 Tobacco of the Department of Business and Professional
232 Regulation, any law enforcement officer certified under s.
233 943.10(1), (6), or (8) shall enforce the provisions of this
234 chapter.
235 (2)(a) A county or municipality may designate certain of
236 its employees or agents as tobacco product and nicotine product
237 enforcement officers. The training and qualifications of the
238 employees or agents for such designation shall be determined by
239 the county or the municipality. Nothing in this section shall be
240 construed to permit the carrying of firearms or other weapons by
241 a tobacco product and nicotine product enforcement agent, nor
242 does designation as a tobacco product and nicotine product
243 enforcement officer provide the employee or agent with the power
244 of arrest or subject the employee or agent to the provisions of
245 ss. 943.085-943.255. Nothing in this section amends, alters, or
246 contravenes the provisions of any state-administered retirement
247 system or any state-supported retirement system established by
248 general law.
249 (b) A tobacco product and nicotine product enforcement
250 officer is authorized to issue a citation to a person under the
251 age of 21 18 when, based upon personal investigation, the
252 officer has reasonable cause to believe that the person has
253 committed a civil infraction in violation of s. 386.212, or s.
254 569.11, or s. 569.42.
255 (3) A correctional probation officer as defined in s.
256 943.10(3) is authorized to issue a citation to a person under
257 the age of 21 18 when, based upon personal investigation, the
258 officer has reasonable cause to believe that the person has
259 committed a civil infraction in violation of s. 569.11 or s.
260 569.42.
261 (4) A citation issued to any person violating the
262 provisions of s. 569.11 or s. 569.42 shall be in a form
263 prescribed by the Division of Alcoholic Beverages and Tobacco of
264 the Department of Business and Professional Regulation and shall
265 contain:
266 (a) The date and time of issuance.
267 (b) The name and address of the person to whom the citation
268 is issued.
269 (c) The date and time the civil infraction was committed.
270 (d) The facts constituting reasonable cause.
271 (e) The number of the Florida statute violated.
272 (f) The name and authority of the citing officer.
273 (g) The procedure for the person to follow in order to
274 contest the citation, perform the required community service,
275 attend the required anti-tobacco or anti-tobacco and anti
276 nicotine program, or to pay the civil penalty.
277 Section 18. Section 569.14, Florida Statutes, is amended to
278 read:
279 569.14 Posting of a sign stating that the sale of tobacco
280 products or nicotine products to persons under 21 18 years of
281 age is unlawful; enforcement; penalty.—
282 (1) A dealer that sells tobacco products shall post a clear
283 and conspicuous sign in each place of business where such
284 products are sold which substantially states the following:
285
286 THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
287 OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
288 REQUIRED FOR PURCHASE.
289
290 (2) A dealer that sells tobacco products and nicotine
291 products or nicotine dispensing devices, as defined in s.
292 877.112, may use a sign that substantially states the following:
293
294 THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
295 NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
296 OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
297 REQUIRED FOR PURCHASE.
298
299 A dealer that uses a sign as described in this subsection meets
300 the signage requirements of subsection (1) and s. 569.43(1) s.
301 877.112.
302 (3) The division shall make available to dealers of tobacco
303 products signs that meet the requirements of subsection (1) or
304 subsection (2).
305 (4) Any dealer that sells tobacco products shall provide at
306 the checkout counter in a location clearly visible to the dealer
307 or the dealer’s agent or employee instructional material in a
308 calendar format or similar format to assist in determining
309 whether a person is of legal age to purchase tobacco products.
310 This point of sale material must contain substantially the
311 following language:
312
313 IF YOU WERE NOT BORN BEFORE THIS DATE
314 (insert date and applicable year)
315 YOU CANNOT BUY TOBACCO PRODUCTS, NICOTINE PRODUCTS,
316 OR NICOTINE DISPENSING DEVICES.
317
318 Upon approval by the division, in lieu of a calendar a dealer
319 may use card readers, scanners, or other electronic or automated
320 systems that can verify whether a person is of legal age to
321 purchase tobacco products. Failure to comply with the provisions
322 contained in this subsection shall result in imposition of
323 administrative penalties as provided in s. 569.006.
324 (5) The division, through its agents and inspectors, shall
325 enforce this section.
326 (6) Any person who fails to comply with subsection (1) is
327 guilty of a misdemeanor of the second degree, punishable as
328 provided in s. 775.082 or s. 775.083.
329 Section 19. Section 569.19, Florida Statutes, is amended to
330 read:
331 569.19 Annual report.—The division shall report annually
332 with written findings to the Legislature and the Governor by
333 December 31, on the progress of implementing the enforcement
334 provisions of this part chapter. This must include, but is not
335 limited to:
336 (1) The number and results of compliance visits.
337 (2) The number of violations for failure of a retailer to
338 hold a valid license.
339 (3) The number of violations for selling tobacco products
340 to persons under age 21 18, and the results of administrative
341 hearings on the above and related issues.
342 (4) The number of persons under age 21 18 cited for
343 violations of s. 569.11 and sanctions imposed as a result of
344 citation.
345 Section 20. Section 569.31, Florida Statutes, is created to
346 read:
347 569.31 Definitions.—As used in this part, the term:
348 (1) “Dealer” is synonymous with the term “retail nicotine
349 products dealer.”
350 (2) “Division” means the Division of Alcoholic Beverages
351 and Tobacco of the Department of Business and Professional
352 Regulation.
353 (3) “Nicotine dispensing device” means any product that
354 employs an electronic, chemical, or mechanical means to produce
355 vapor or aerosol from a nicotine product, including, but not
356 limited to, an electronic cigarette, electronic cigar,
357 electronic cigarillo, electronic pipe, or other similar device
358 or product, any replacement cartridge for such device, and any
359 other container of nicotine in a solution or other form intended
360 to be used with or within an electronic cigarette, electronic
361 cigar, electronic cigarillo, electronic pipe, or other similar
362 device or product.
363 (4) “Nicotine product” means any product that contains
364 nicotine, including liquid nicotine, which is intended for human
365 consumption, whether inhaled, chewed, absorbed, dissolved, or
366 ingested by any means. The term also includes any nicotine
367 dispensing device. The term does not include a:
368 (a) Tobacco product, as defined in s. 569.002;
369 (b) Product regulated as a drug or device by the United
370 States Food and Drug Administration under Chapter V of the
371 Federal Food, Drug, and Cosmetic Act; or
372 (c) Product that contains incidental nicotine.
373 (5) “Permit” is synonymous with the term “retail nicotine
374 products dealer permit.”
375 (6) “Retail nicotine products dealer” means the holder of a
376 retail nicotine products dealer permit.
377 (7) “Retail nicotine products dealer permit” means a permit
378 issued by the division under s. 569.32.
379 (8) “Self-service merchandising” means the open display of
380 nicotine products, whether packaged or otherwise, for direct
381 retail customer access and handling before purchase without the
382 intervention or assistance of the dealer or the dealer’s owner,
383 employee, or agent. An open display of such products and devices
384 includes the use of an open display unit.
385 (9) “Any person under the age of 21” does not include any
386 person under the age of 21 who:
387 (a) Is in the military reserve or on active duty in the
388 Armed Forces of the United States; or
389 (b) Is acting in his or her scope of lawful employment.
390 Section 21. Section 569.315, Florida Statutes, is created
391 to read:
392 569.315 Preemption.—The establishment of the minimum age
393 for purchasing or possessing, and the regulation for the
394 marketing, sale, or delivery of, nicotine products is preempted
395 to the state.
396 Section 22. Section 569.32, Florida Statutes, is created to
397 read:
398 569.32 Retail nicotine products dealer permits;
399 application; qualifications; renewal; duplicates.—
400 (1)(a) Each person, firm, association, or corporation that
401 seeks to deal, at retail, in nicotine products within the state,
402 or to allow a nicotine products vending machine to be located on
403 its premises in the state, must obtain a retail nicotine
404 products dealer permit for each place of business or premises at
405 which nicotine products are sold. Each dealer owning, leasing,
406 furnishing, or operating vending machines through which nicotine
407 products are sold must obtain a permit for each machine and
408 shall post the permit in a conspicuous place on or near the
409 machine; however, if the dealer has more than one vending
410 machine at a single location or if nicotine products are sold
411 both over the counter and through a vending machine at a single
412 location, the dealer need obtain only one permit for that
413 location.
414 (b) Application for a permit must be made on a form
415 furnished by the division and must set forth the name under
416 which the applicant transacts or intends to transact business,
417 the address of the location of the applicant’s place of business
418 within the state, and any other information the division
419 requires. If the applicant has or intends to have more than one
420 place of business dealing in nicotine products within the state,
421 a separate application must be made for each place of business.
422 If the applicant is a firm or an association, the application
423 must set forth the names and addresses of the persons
424 constituting the firm or association; if the applicant is a
425 corporation, the application must set forth the names and
426 addresses of the principal officers of the corporation. The
427 application must also set forth any other information prescribed
428 by the division for the purpose of identifying the applicant
429 firm, association, or corporation. The application must be
430 signed and verified by oath or affirmation by the owner, if a
431 sole proprietor, or, if the owner is a firm, association, or
432 partnership, by the members or partners thereof, or, if the
433 owner is a corporation, by an executive officer of the
434 corporation or by a person authorized by the corporation to sign
435 the application, together with the written evidence of this
436 authority.
437 (2)(a) Permits may be issued only to persons who are 21
438 years of age or older or to corporations the officers of which
439 are 21 years of age or older.
440 (b) The division may refuse to issue a permit to any
441 person, firm, association, or corporation the permit of which
442 has been revoked, to any corporation an officer of which has had
443 his or her permit revoked, or to any person who is or has been
444 an officer of a corporation the permit of which has been
445 revoked. Any permit issued to a firm, association, or
446 corporation prohibited from obtaining a permit under this
447 chapter shall be revoked by the division.
448 (3) Upon approval of an application for a permit, the
449 division shall issue to the applicant a permit for the place of
450 business or premises specified in the application. A permit is
451 not assignable and is valid only for the person in whose name
452 the permit is issued and for the place designated in the permit.
453 The permit shall be conspicuously displayed at all times at the
454 place for which issued.
455 Section 23. Section 569.33 Florida Statutes, is created to
456 read:
457 569.33 Consent to inspection and search without warrant.—An
458 applicant for a retail nicotine products dealer permit, by
459 accepting the permit when issued, agrees that the place or
460 premises covered by the permit is subject to inspection and
461 search without a search warrant by the division or its
462 authorized assistants, and by sheriffs, deputy sheriffs, or
463 police officers, to determine compliance with this part.
464 Section 24. Section 569.34, Florida Statutes, is created to
465 read:
466 569.34 Operating without a retail nicotine products dealer
467 permit; penalty.—
468 (1) It is unlawful for a person, firm, association, or
469 corporation to deal, at retail, in nicotine products, in any
470 manner, or to allow a nicotine products vending machine to be
471 located on its premises, without having a retail nicotine
472 product dealer permit as required by s. 569.32. A person who
473 violates this section commits a noncriminal violation,
474 punishable by a fine of not more than $500.
475 (2) A retail tobacco products dealer, as defined in s.
476 569.002(4), is not required to have a separate or additional
477 retail nicotine products dealer permit to deal, at retail, in
478 nicotine products within the state, or allow a nicotine products
479 vending machine to be located on its premises in the state. Any
480 retail tobacco products dealer that deals, at retail, in
481 nicotine products or allows a nicotine products vending machine
482 to be located on its premises in the state, is subject to, and
483 must be in compliance with, this part.
484 (3) Any person who violates this section shall be cited for
485 such infraction and shall be cited to appear before the county
486 court. The citation may indicate the time, date, and location of
487 the scheduled hearing and must indicate that the penalty for a
488 noncriminal violation is a fine of not more than $500.
489 (a) A person cited for an infraction under this section
490 may:
491 1. Post a $500 bond; or
492 2. Sign and accept the citation indicating a promise to
493 appear.
494 (b) A person cited for violating this section may:
495 1. Pay the fine, either by mail or in person, within 10
496 days after receiving the citation; or
497 2. If the person has posted bond, forfeit the bond by not
498 appearing at the scheduled hearing.
499 (c) If the person pays the fine or forfeits bond, the
500 person is deemed to have admitted violating this section and to
501 have waived the right to a hearing on the issue of commission of
502 the violation. Such admission may not be used as evidence in any
503 other proceeding.
504 (d) The court, after a hearing, shall make a determination
505 as to whether an infraction has been committed. If the
506 commission of an infraction has been proven beyond a reasonable
507 doubt, the court may impose a civil penalty in an amount that
508 may not exceed $500.
509 (e) If a person is found by the court to have committed the
510 infraction, that person may appeal that finding to the circuit
511 court.
512 Section 25. Section 569.35, Florida Statutes, is created to
513 read:
514 569.35 Retail nicotine product dealers; administrative
515 penalties.—The division may suspend or revoke the permit of a
516 dealer, including the retail tobacco products dealer permit of a
517 retail tobacco products dealer as defined in s. 569.002(4), upon
518 sufficient cause appearing of the violation of any of the
519 provisions of this part, by a dealer, or by a dealer’s agent or
520 employee. The division may also assess and accept an
521 administrative fine of up to $1,000 against a dealer for each
522 violation. The division shall deposit all fines collected into
523 the General Revenue Fund as collected. An order imposing an
524 administrative fine becomes effective 15 days after the date of
525 the order. The division may suspend the imposition of a penalty
526 against a dealer, conditioned upon the dealer’s compliance with
527 terms the division considers appropriate.
528 Section 26. Section 569.37, Florida Statutes, is created to
529 read:
530 569.37 Sale or delivery of nicotine products;
531 restrictions.—
532 (1) In order to prevent persons under 21 years of age from
533 purchasing or receiving nicotine products, the sale or delivery
534 of nicotine products is prohibited, except:
535 (a) When under the direct control or line of sight of the
536 dealer or the dealer’s agent or employee; or
537 (b) Sales from a vending machine are prohibited under
538 paragraph (a) and are only permissible from a machine that is
539 equipped with an operational lockout device that is under the
540 control of the dealer or the dealer’s agent or employee who
541 directly regulates the sale of items through the machine by
542 triggering the lockout device to allow the dispensing of one
543 nicotine product. The lockout device must include a mechanism to
544 prevent the machine from functioning if the power source for the
545 lockout device fails or if the lockout device is disabled, and a
546 mechanism to ensure that only one nicotine product is dispensed
547 at a time.
548 (2)(a) A dealer that sells nicotine products may not sell,
549 permit to be sold, offer for sale, or display for sale such
550 products or devices by means of self-service merchandising.
551 (b) A dealer that sells nicotine products may not place
552 such products or devices in an open display unit unless the unit
553 is located in an area that is inaccessible to customers.
554 (3) The provisions of subsections (1) and (2) shall not
555 apply to an establishment that prohibits persons under 21 years
556 of age on the licensed premises.
557 (4) A dealer or a dealer’s agent or employee must require
558 proof of age of a purchaser of a nicotine product before selling
559 the product to that person, unless the purchaser appears to be
560 30 years of age or older.
561 Section 27. Section 569.38, Florida Statutes, is created to
562 read:
563 569.38 Gift of sample nicotine products and nicotine
564 dispensing devices.—The gift of sample nicotine products to any
565 person under the age of 21 by an entity permitted under this
566 part, or by an employee of such entity, is prohibited and is
567 punishable as provided in s. 569.41.
568 Section 28. Section 569.381, Florida Statutes, is created
569 to read:
570 569.381 Responsible retail nicotine products dealers;
571 qualifications; mitigation of disciplinary penalties; diligent
572 management and supervision; presumption.—
573 (1) It is the intent of the Legislature to prevent the sale
574 of nicotine products to persons under 21 years of age and to
575 encourage retail nicotine products dealers to comply with
576 responsible practices in accordance with this section.
577 (2) To qualify as a responsible retail nicotine products
578 dealer, the dealer must establish and implement procedures
579 designed to ensure that the dealer’s employees comply with this
580 part. The dealer must provide a training program for the
581 dealer’s employees which addresses the use and sale of nicotine
582 products and which includes at least the following topics:
583 (a) Laws covering the sale of nicotine products.
584 (b) Methods of recognizing and handling customers under 21
585 years of age.
586 (c) Procedures for proper examination of identification
587 cards in order to verify that customers are not under 21 years
588 of age.
589 (d) The use of the age audit identification function on
590 electronic point-of-sale equipment, where available.
591 (3) In determining penalties under s. 569.35, the division
592 may mitigate penalties imposed against a dealer because of an
593 employee’s illegal sale of a nicotine product to a person under
594 21 years of age if the following conditions are met:
595 (a) The dealer is qualified as a responsible dealer under
596 this section.
597 (b) The dealer provided the training program required under
598 subsection (2) to that employee before the illegal sale
599 occurred.
600 (c) The dealer had no knowledge of that employee’s
601 violation at the time of the violation and did not direct,
602 approve, or participate in the violation.
603 (d) If the sale was made through a vending machine, the
604 machine was equipped with an operational lock-out device.
605 (4) The division shall develop and make available a model
606 nicotine products training program designed to ensure adherence
607 to this part by dealers and their employees which, if followed,
608 will qualify dealers as responsible dealers.
609 (5) Dealers shall exercise diligence in the management and
610 supervision of their premises and in the supervision and
611 training of their employees, agents, or servants. In proceedings
612 to impose penalties under s. 569.35, proof that employees,
613 agents, or servants of the dealer, while in the scope of their
614 employment, committed at least three violations of s. 569.41
615 during a 180-day period shall be prima facie evidence of a lack
616 of due diligence by the dealer in the management and supervision
617 of his or her premises and in the supervision and training of
618 employees, agents, officers, or servants.
619 (6) The division may consider qualification as a
620 responsible retail nicotine products dealer under this section
621 as evidence that the dealer properly exercised the diligence
622 required under this section.
623 Section 29. Section 569.39, Florida Statutes, is created to
624 read:
625 569.39 Rulemaking authority.—The division shall adopt rules
626 to administer and enforce this part.
627 Section 30. Section 569.41, Florida Statutes, is created to
628 read:
629 569.41 Selling, delivering, bartering, furnishing, or
630 giving nicotine products to persons under 21 years of age;
631 criminal penalties; defense.—
632 (1) It is unlawful to sell, deliver, barter, furnish, or
633 give, directly or indirectly, to any person who is under 21
634 years of age, any nicotine product.
635 (2) Any person who violates subsection (1) commits a
636 misdemeanor of the second degree, punishable as provided in s.
637 775.082 or s. 775.083. However, any person who violates
638 subsection (1) for a second or subsequent time within 1 year
639 after the first violation commits a misdemeanor of the first
640 degree, punishable as provided in s. 775.082 or s. 775.083.
641 (3) A person charged with a violation of subsection (1) has
642 a complete defense if, at the time the nicotine product was
643 sold, delivered, bartered, furnished, or given:
644 (a) The buyer or recipient falsely evidenced that she or he
645 was 21 years of age or older;
646 (b) The appearance of the buyer or recipient was such that
647 a prudent person would believe the buyer or recipient to be 21
648 years of age or older; and
649 (c) Such person carefully checked a driver license or an
650 identification card issued by the state or another state of the
651 United States, a passport, or a United States armed services
652 identification card presented by the buyer or recipient and
653 acted in good faith and in reliance upon the representation and
654 appearance of the buyer or recipient in the belief that the
655 buyer or recipient was 21 years of age or older.
656 Section 31. Section 569.42, Florida Statutes, is created to
657 read:
658 569.42 Possession, misrepresenting age or military service
659 to purchase, and purchase of nicotine products by persons under
660 21 years of age prohibited; penalties; jurisdiction; disposition
661 of fines.—
662 (1) It is unlawful for any person under 21 years of age to
663 knowingly possess any nicotine product. Any person under 21
664 years of age who violates this subsection commits a noncriminal
665 violation as provided in s. 775.08(3), punishable by:
666 (a) For a first violation, 16 hours of community service
667 or, instead of community service, a $25 fine. In addition, the
668 person must attend a school-approved anti-tobacco and anti
669 nicotine program, if locally available; or
670 (b) For a second or subsequent violation within 12 weeks
671 after the first violation, a $25 fine.
672
673 Any second or subsequent violation not within the 12-week period
674 after the first violation is punishable as provided for a first
675 violation.
676 (2) It is unlawful for any person under 21 years of age to
677 misrepresent his or her age or military service for the purpose
678 of inducing a dealer or an agent or employee of the dealer to
679 sell, give, barter, furnish, or deliver any nicotine product, or
680 to purchase, or attempt to purchase, any nicotine product from a
681 person or a vending machine. Any person under 21 years of age
682 who violates this subsection commits a noncriminal violation as
683 defined in s. 775.08(3), punishable by:
684 (a) For a first violation, 16 hours of community service
685 or, instead of community service, a $25 fine and, in addition,
686 the person must attend a school-approved anti-tobacco and anti
687 nicotine program, if available; or
688 (b) For a second or subsequent violation within 12 weeks
689 after the first violation, a $25 fine.
690
691 Any second or subsequent violation not within the 12-week period
692 after the first violation is punishable as provided for a first
693 violation.
694 (3) Any person under 21 years of age cited for committing a
695 noncriminal violation under this section must sign and accept a
696 civil citation indicating a promise to appear before the county
697 court or comply with the requirement for paying the fine and
698 must attend a school-approved anti-tobacco and anti-nicotine
699 program, if locally available. If a fine is assessed for a
700 violation of this section, the fine must be paid within 30 days
701 after the date of the citation or, if a court appearance is
702 mandatory, within 30 days after the date of the hearing.
703 (4) A person charged with a noncriminal violation under
704 this section must appear before the county court or comply with
705 the requirement for paying the fine. The court, after a hearing,
706 shall make a determination as to whether the noncriminal
707 violation was committed. If the court finds the violation was
708 committed, it shall impose an appropriate penalty as specified
709 in subsection (1) or subsection (2). A person who participates
710 in community service shall be considered an employee of the
711 state for the purpose of chapter 440, for the duration of such
712 service.
713 (5)(a) If a person under 21 years of age is found by the
714 court to have committed a noncriminal violation under this
715 section and the person has failed to complete community service,
716 pay the fine as required by paragraph (1)(a) or paragraph
717 (2)(a), or attend a school-approved anti-tobacco and anti
718 nicotine program, if locally available, the court may direct the
719 Department of Highway Safety and Motor Vehicles to withhold
720 issuance of or suspend the driver license or driving privilege
721 of that person for a period of 30 consecutive days.
722 (b) If a person under 21 years of age is found by the court
723 to have committed a noncriminal violation under this section and
724 that person has failed to pay the applicable fine as required by
725 paragraph (1)(b) or paragraph (2)(b), the court may direct the
726 Department of Highway Safety and Motor Vehicles to withhold
727 issuance of or suspend the driver license or driving privilege
728 of that person for a period of 45 consecutive days.
729 (6) Eighty percent of all civil penalties received by a
730 county court under this section shall be remitted by the clerk
731 of the court to the Department of Revenue for transfer to the
732 Department of Education to provide for teacher training and for
733 research and evaluation to reduce and prevent the use of
734 nicotine products by children. The remaining 20 percent of civil
735 penalties received by a county court under this section shall
736 remain with the clerk of the county court to cover
737 administrative costs.
738 Section 32. Section 569.43, Florida Statutes, is created to
739 read:
740 569.43 Posting of a sign stating that the sale of nicotine
741 products or nicotine dispensing devices to persons under 21
742 years of age is unlawful; enforcement; penalty.—
743 (1) A dealer that sells nicotine products shall post a
744 clear and conspicuous sign in each place of business at which
745 such products are sold which substantially states the following:
746
747 THE SALE OF NICOTINE PRODUCTS OR NICOTINE DISPENSING
748 DEVICES TO PERSONS UNDER THE AGE OF 21 IS AGAINST
749 FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
750
751 (2) The division shall make available to dealers of
752 nicotine products signs that meet the requirements of subsection
753 (1).
754 (3) Any dealer that sells nicotine products shall provide
755 at the checkout counter in a location clearly visible to the
756 dealer or the dealer’s agent or employee instructional material
757 in a calendar format or similar format to assist in determining
758 whether a person is of legal age to purchase nicotine products.
759 This point of sale material must contain substantially the
760 following language:
761
762 IF YOU WERE NOT BORN BEFORE THIS DATE
763 (insert date and applicable year)
764 YOU CANNOT BUY TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR NICOTINE
765 DISPENSING DEVICES.
766
767 Upon approval by the division, in lieu of a calendar a dealer
768 may use card readers, scanners, or other electronic or automated
769 systems that can verify whether a person is of legal age to
770 purchase nicotine products. Failure to comply with the
771 provisions contained in this subsection shall result in
772 imposition of administrative penalties as provided in s. 569.35.
773 (4) The division, through its agents and inspectors, shall
774 enforce this section.
775 (5) Any person who fails to comply with subsection (1)
776 commits a misdemeanor of the second degree, punishable as
777 provided in s. 775.082 or s. 775.083.
778 Section 33. Section 569.44, Florida Statutes, is created to
779 read:
780 569.44 Annual report.—The division shall report annually
781 with written findings to the Legislature and the Governor by
782 December 31, on the progress of implementing the enforcement
783 provisions of this part. This must include, but is not limited
784 to:
785 (1) The number and results of compliance visits.
786 (2) The number of violations for failure of a retailer to
787 hold a valid permit.
788 (3) The number of violations for selling nicotine products
789 to persons under age 21, and the results of administrative
790 hearings on the above and related issues.
791 (4) The number of persons under age 21 cited for violations
792 of s. 569.42 and sanctions imposed as a result of citation.
793 Section 34. Section 569.45, Florida Statutes, is created to
794 read:
795 569.45 Mail order, Internet, and remote sales of nicotine
796 products; age verification.—
797 (1) For purposes of this section, the term:
798 (a) “Consumer” means a person in the state who comes into
799 possession of any nicotine product who, at the time of
800 possession, is not intending to sell or distribute the nicotine
801 product, or is not a retailer.
802 (b) “Delivery sale” means any sale of nicotine products to
803 a consumer in the state for which:
804 1. The consumer submits the order for the sale by
805 telephonic or other voice transmission, mail, delivery service,
806 or the Internet or other online service; or
807 2. The nicotine products are delivered by use of mail or a
808 delivery service.
809 (c) “Delivery service” means any person engaged in the
810 commercial delivery of letters, packages, or other containers.
811 (d) “Legal minimum purchase age” means the minimum age at
812 which an individual may legally purchase nicotine products in
813 the state.
814 (e) “Retailer” means any person who is required to obtain a
815 retail nicotine products dealer permit or a retail tobacco
816 products dealer permit, as defined in s. 569.002.
817 (f) “Shipping container” means a container in which
818 nicotine products are shipped in connection with a delivery
819 sale.
820 (g) “Shipping document” means a bill of lading, airbill,
821 United States Postal Service form, or any other document used to
822 verify the undertaking by a delivery service to deliver letters,
823 packages, or other containers.
824 (2)(a) A sale of nicotine products constituting a delivery
825 sale under paragraph (1)(b) is a delivery sale regardless of
826 whether the person accepting the order for the delivery sale is
827 located inside or outside the state.
828 (b) A retailer must obtain a retail nicotine products
829 dealer permit or a retail tobacco products dealer permit, as
830 defined in s. 569.002, from the division under the requirements
831 of this chapter before accepting an order for a delivery sale.
832 (c) A person may not make a delivery sale of nicotine
833 products to any individual who is not 21 years of age or older.
834 (d) Each person accepting an order for a delivery sale must
835 comply with each of the following:
836 1. The age verification requirements set forth in
837 subsection (3).
838 2. The disclosure requirements set forth in subsection (4).
839 3. The shipping requirements set forth in subsection (5).
840 (3) A person may not mail, ship, or otherwise deliver
841 nicotine products in connection with an order for a delivery
842 sale unless, before the first delivery to the consumer, the
843 person accepting the order for the delivery sale:
844 (a) Obtains from the person submitting the order a
845 certification that includes:
846 1. Reliable confirmation that the person is 21 years of age
847 or older; and
848 2. A statement signed by the person in writing and under
849 penalty of perjury which:
850 a. Certifies the address and date of birth of the person;
851 and
852 b. Confirms that the person wants to receive delivery sales
853 from a nicotine products company and understands that, under the
854 laws of the state, the following actions are illegal:
855 (I) Signing another person’s name to the certification;
856 (II) Selling nicotine products to individuals who are not
857 21 years of age or older; and
858 (III) Purchasing nicotine products, if the person making
859 the purchase is not 21 years of age or older.
860 (b) Makes a good faith effort to verify the information
861 contained in the certification provided by the individual under
862 paragraph (a) against a commercially available database that may
863 be reasonably relied upon for accurate age information or
864 obtains a photocopy or other image of a valid government-issued
865 identification card stating the date of birth or age of the
866 individual.
867 (c) Provides to the individual, via electronic mail or
868 other means, a notice meeting the requirements of subsection
869 (4).
870 (d) If an order for nicotine products is made pursuant to
871 an advertisement on the Internet, receives payment for the
872 delivery sale from the consumer by a credit or debit card issued
873 in the name of the consumer, or by personal or company check of
874 the consumer.
875 (e) Submits, to each credit card acquiring company with
876 which the
877
878 ====== D I R E C T O R Y C L A U S E A M E N D M E N T ======
879 And the directory clause is amended as follows:
880 Delete line 278
881 and insert:
882 Section 35. Paragraph (c) of subsection (1) and paragraph
883 (a) of subsection (2) of section
884
885 ================= T I T L E A M E N D M E N T ================
886 And the title is amended as follows:
887 Between lines 25 and 26
888 insert:
889 requiring proof of age for certain purchases of
890 tobacco products;
