ENROLLED
       2009 Legislature            CS for CS for SB 1840, 2nd Engrossed
       
       
       
       
       
       
                                                             20091840er
    1  
    2         An act relating to protecting Florida’s health through
    3         a surcharge on tobacco products; providing a short
    4         title; amending s. 210.01, F.S.; redefining the terms
    5         “unstamped package,” “unstamped cigarettes,” and
    6         “stamp”; conforming provisions to changes made by the
    7         act; creating s. 210.011, F.S.; levying a surcharge on
    8         cigarettes equivalent to $1 per standard pack;
    9         establishing surcharge amounts for cigarettes of a
   10         nonstandard size and in varying quantities; providing
   11         legislative intent that the surcharge be uniform
   12         throughout the state; providing for the surcharge to
   13         be administered in the same manner as the cigarette
   14         tax imposed under s. 210.02, F.S.; requiring that
   15         revenue from the surcharge be deposited into the
   16         Health Care Trust Fund within the Agency for Health
   17         Care Administration; amending s. 210.04, F.S., to
   18         conform; creating s. 210.095, F.S.; defining terms;
   19         providing that certain transactions constitute a
   20         delivery sale of tobacco products; requiring that a
   21         cigarette retailer obtain a license before accepting
   22         an order for a delivery sale; prohibiting the making
   23         of a delivery sale to a person who is not an adult;
   24         requiring that a person accepting an order for a
   25         delivery sale comply with certain requirements;
   26         prohibiting the mailing, shipping, or delivery of
   27         tobacco products in connection with an order for
   28         delivery sale unless, before the first delivery to a
   29         consumer, the person accepting the order takes certain
   30         actions; authorizing a person accepting an order for
   31         delivery sale to request that a consumer provide an e
   32         mail address; requiring the delivery of a notice to
   33         consumers making orders for delivery sale; providing
   34         requirements for such notice; requiring that each
   35         person who mails, ships, or delivers tobacco products
   36         in connection with an order for delivery sale fulfill
   37         specified requirements; requiring that a person file a
   38         statement containing certain information with the
   39         Department of Business and Professional Regulation
   40         before selling or shipping tobacco products; requiring
   41         that certain individuals file certain information with
   42         the Division of Alcoholic Beverages and Tobacco of the
   43         Department of Business and Professional Regulation at
   44         specified intervals; providing that a person may
   45         comply with certain provisions of state law by
   46         complying with specified provisions of federal law;
   47         providing for applicability of certain provisions of
   48         state law; requiring the collection and remittance of
   49         certain taxes; providing penalties for certain
   50         violations of state law; classifying certain property
   51         as contraband material; requiring the forfeiture of
   52         tobacco products under certain circumstances;
   53         authorizing the Attorney General, his or her designee,
   54         a state attorney, or any person holding a specified
   55         type of permit to bring certain actions in a court of
   56         this state; amending s. 210.18, F.S.; creating a
   57         reward program for information concerning violations
   58         under part I of ch. 210, F.S.; creating s. 210.276,
   59         F.S.; levying a surcharge on tobacco products other
   60         than cigarettes; providing for the surcharge to be
   61         administered in the same manner as the tax imposed
   62         under part II of ch. 210, F.S.; requiring that revenue
   63         from the surcharge be deposited into the Health Care
   64         Trust Fund within the Agency for Health Care
   65         Administration; providing for the surcharges on
   66         cigarettes and other tobacco products to be levied
   67         upon existing inventory on the effective date of the
   68         act; requiring each manufacturer, distributing agent,
   69         wholesale dealer, retail dealer, distributor, and
   70         retailer to take an inventory of the cigarettes and
   71         other tobacco products in its possession on the
   72         effective date of the act; requiring that the amount
   73         of inventory be certified to the Division of Alcoholic
   74         Beverages and Tobacco of the Department of Business
   75         and Professional Regulation by a specified date;
   76         specifying criteria that a retailer must use to
   77         calculate the tax on inventory of certain tobacco
   78         products; authorizing the surcharge to be paid in four
   79         equal installments; providing for penalties and
   80         interest for delinquent payments; authorizing a
   81         collection allowance for conducting the inventory and
   82         remitting the tax on inventory of certain tobacco
   83         products; amending s. 210.05, F.S.; conforming
   84         provisions to changes made by the act; creating s.
   85         210.1801, F.S.; providing that certain members of an
   86         Indian tribe recognized in this state are exempt from
   87         paying a cigarette tax and surcharge under certain
   88         conditions; providing that cigarettes sold on an
   89         Indian reservation to a nontribal member are subject
   90         to the tax and surcharge; providing that evidence of
   91         such tax and surcharge is indicated by an affixed
   92         cigarette tax and surcharge stamp; requiring the
   93         Division of Alcoholic Beverages and Tobacco of the
   94         Department of Business and Professional Regulation to
   95         provide Indian-tax-and-surcharge-exemption coupons;
   96         requiring a reservation cigarette seller to present
   97         these coupons to a wholesale dealer in order to
   98         purchase stamped cigarettes that are exempt from the
   99         tax and surcharge; authorizing tribal members to
  100         purchase stamped cigarettes that are exempt from the
  101         tax and surcharge from reservation cigarette sellers;
  102         authorizing the governing bodies of Indian tribes to
  103         be provided with Indian-tax-and-surcharge-exemption
  104         coupons; authorizing Indian tribes and reservation
  105         cigarette sellers to redeem Indian-tax-and-surcharge
  106         exemption coupons; providing for the calculation of
  107         the number of Indian-tax-and-surcharge-exemption
  108         coupons to be provided; requiring wholesale dealers to
  109         keep records of transactions involving Indian-tax-and
  110         surcharge-exemption coupons and to submit
  111         documentation to the Division of Alcoholic Beverages
  112         and Tobacco of the Department of Business and
  113         Professional Regulation; providing criteria for the
  114         documentation; authorizing an Indian tribe, a tribal
  115         member, and a reservation cigarette seller to purchase
  116         cigarettes that are exempt from the tax and surcharge
  117         from a wholesale dealer under certain conditions;
  118         prohibiting a wholesaler from collecting the cigarette
  119         tax when given Indian-tax-and-surcharge-exemption
  120         coupons; authorizing a wholesale dealer to file a
  121         claim for a refund with respect to a cigarette tax and
  122         surcharge previously paid; providing that an approved
  123         agreement between an Indian tribe and the state takes
  124         precedence over s. 210.1801, F.S.; requiring that the
  125         agreement provide for revenue sharing between the
  126         tribe and the state; providing an effective date.
  127  
  128         WHEREAS, the United States Surgeon General has found that
  129  smoking causes lung cancer, heart disease, and emphysema, and
  130         WHEREAS, the United States Surgeon General has found that
  131  smoking by pregnant women may result in fetal injury, premature
  132  birth, and low birth weight, and
  133         WHEREAS, the United States Surgeon General has found that
  134  tobacco smoke increases the risk of lung cancer and heart
  135  disease, even in nonsmokers, and
  136         WHEREAS, the United States Surgeon General has found that
  137  smokeless tobacco may cause gum disease, tooth loss, and mouth
  138  cancer, and
  139         WHEREAS, the United States Surgeon General has found that
  140  exposure to secondhand smoke causes respiratory symptoms in
  141  children and slows their lung growth, and causes sudden infant
  142  death syndrome (SIDS), acute respiratory infections, ear
  143  problems, and more frequent and severe asthma attacks in
  144  children, and
  145         WHEREAS, health care costs attributable to smoking-related
  146  illness in Florida have been estimated to exceed $6 billion
  147  annually, and
  148         WHEREAS, the direct Medicaid costs attributable to tobacco
  149  related illness in Florida have been estimated to exceed $1.25
  150  billion each year, and
  151         WHEREAS, the Legislature finds that the cost of tobacco
  152  usage should be recouped from those persons who engage in the
  153  use of tobacco products through a surcharge upon the retail
  154  purchase of cigarettes and other tobacco products, and
  155         WHEREAS, the Legislature finds that the imposition of such
  156  a surcharge will provide tax relief to Florida residents and
  157  businesses that heretofore have been subject to exactions to pay
  158  for the Medicaid costs attributable to the use of tobacco
  159  products, NOW, THEREFORE,
  160  
  161  Be It Enacted by the Legislature of the State of Florida:
  162  
  163         Section 1. This act may be cited as the “Protecting
  164  Florida’s Health Act.”
  165         Section 2. Subsections (18) and (19) of section 210.01,
  166  Florida Statutes, are amended to read:
  167         210.01 Definitions.—When used in this part the following
  168  words shall have the meaning herein indicated:
  169         (18) “Unstamped package” or “unstamped cigarettes” means a
  170  package on which the surcharge and tax required by this part
  171  have has not been paid, regardless of whether or not such
  172  package is stamped or marked with the indicia of any other
  173  taxing authority, or a package on which there has been affixed a
  174  counterfeit or fraudulent indicium or stamp.
  175         (19) “Stamp” or “stamps” means the indicia required to be
  176  placed on cigarette packages which that evidence payment of the
  177  surcharge on cigarettes under s. 210.011 and the tax on
  178  cigarettes under s. 210.02.
  179         Section 3. Section 210.011, Florida Statutes, is created to
  180  read:
  181         210.011 Cigarette surcharge levied; collection.—
  182         (1) A surcharge, in addition to all other taxes of every
  183  kind levied by law, is levied upon the sale, receipt, purchase,
  184  possession, consumption, handling, distribution, and use of
  185  cigarettes in this state, in the following amounts, except as
  186  otherwise provided in subsections (2)-(5), for cigarettes of
  187  standard dimensions:
  188         (a) Upon all cigarettes weighing not more than 3 pounds per
  189  thousand, 5 cents on each cigarette.
  190         (b) Upon all cigarettes weighing more than 3 pounds per
  191  thousand and not more than 6 inches long, 10 cents on each
  192  cigarette.
  193         (c) Upon all cigarettes weighing more than 3 pounds per
  194  thousand and more than 6 inches long, 20 cents on each
  195  cigarette.
  196         (2) The descriptions of cigarettes contained in subsection
  197  (1) are declared to be standard as to dimensions for the purpose
  198  of levying a surcharge as provided in this section. If any
  199  cigarette is received, purchased, possessed, sold, offered for
  200  sale, given away, or used which is of a size other than those
  201  standard dimensions, the cigarette is subject to a surcharge at
  202  the rate of 4.2 cents on each cigarette.
  203         (3) When cigarettes as described in paragraph (1)(a) are
  204  packed in varying quantities of 20 cigarettes or fewer, except
  205  the manufacturer’s free samples authorized under s. 210.04(9),
  206  the following rates shall govern:
  207         (a) Packages containing 10 cigarettes or fewer require a
  208  surcharge of 50 cents.
  209         (b) Packages containing more than 10 but not more than 20
  210  cigarettes require a surcharge of $1.
  211         (4) When cigarettes as described in paragraph (1)(b) are
  212  packed in varying quantities of 20 cigarettes or fewer, except
  213  the manufacturer’s free samples authorized under s. 210.04(9),
  214  the following rates shall govern:
  215         (a) Packages containing 10 cigarettes or fewer require a
  216  surcharge of $1.
  217         (b) Packages containing more than 10 but not more than 20
  218  cigarettes require a surcharge of $2.
  219         (5) When cigarettes as described in paragraph (1)(c) are
  220  packed in varying quantities of 20 cigarettes or fewer, except
  221  the manufacturer’s free samples authorized under s. 210.04(9),
  222  the following rates shall govern:
  223         (a) Packages containing 10 cigarettes or fewer require a
  224  surcharge of $2.
  225         (b) Packages containing more than 10 but not more than 20
  226  cigarettes require a surcharge of $4.
  227         (6) This surcharge shall be paid by the dealer to the
  228  division for deposit and distribution as hereinafter provided
  229  upon the first sale or transaction within the state, whether
  230  such sale or transfer is to the ultimate purchaser or consumer.
  231  The seller or dealer shall collect the surcharge from the
  232  purchaser or consumer, and the purchaser or consumer shall pay
  233  the surcharge to the seller. The seller or dealer is responsible
  234  for the collection of the surcharge and payment of the surcharge
  235  to the division. All surcharges are due not later than the 10th
  236  day of the month following the calendar month in which they were
  237  incurred, and thereafter shall bear interest at the rate of 1
  238  percent per month. If the amount of surcharge due for a given
  239  period is assessed without allocating it to any particular
  240  month, the interest begins accruing on the date of the
  241  assessment. Whenever cigarettes are shipped from outside the
  242  state to anyone other than a distributing agent or wholesale
  243  dealer, the person receiving the cigarettes is responsible for
  244  the surcharge on the cigarettes and payment of the surcharge to
  245  the division.
  246         (7) It is the legislative intent that the surcharge on
  247  cigarettes be uniform throughout the state.
  248         (8) The surcharge levied under this section shall be
  249  administered, collected, and enforced in the same manner as the
  250  tax imposed under s. 210.02.
  251         (9) Revenue produced from the surcharge levied under this
  252  section shall be deposited into the Health Care Trust Fund
  253  within the Agency for Health Care Administration.
  254         Section 4. Subsection (9) of section 210.04, Florida
  255  Statutes, is amended to read:
  256         210.04 Construction; exemptions; collection.—
  257         (9) Agents, located within or without the state, shall
  258  purchase stamps and affix such stamps in the manner prescribed
  259  to packages or containers of cigarettes to be sold, distributed,
  260  or given away within the state, in which case any dealer
  261  subsequently receiving such stamped packages of cigarettes will
  262  not be required to purchase and affix stamps on such packages of
  263  cigarettes. However, the division may, in its discretion,
  264  authorize manufacturers to distribute in the state free sample
  265  packages of cigarettes containing not less than 2 or more than
  266  20 cigarettes without affixing any surcharge and tax stamps
  267  provided copies of shipping invoices on such cigarettes are
  268  furnished, and payment of all surcharges and taxes imposed on
  269  such cigarettes by law is made, directly to the division not
  270  later than the 10th day of each calendar month. The surcharge
  271  and tax on cigarettes in sample packages shall be based on a
  272  unit in accordance with the surcharges levied under s.
  273  210.011(1) and the taxing provisions of s. 210.02(1).
  274         Section 5. Section 210.095, Florida Statutes, is created to
  275  read:
  276         210.095 Mail order, Internet, and remote sales of tobacco
  277  products; age verification.—
  278         (1) For purposes of this section, the term:
  279         (a) “Adult” means an individual who is at least of the
  280  legal minimum purchase age for tobacco products.
  281         (b) “Consumer” means a person in this state who comes into
  282  possession of any tobacco product subject to the tax imposed by
  283  this chapter and who, at the time of possession, is not a
  284  distributor intending to sell or distribute the tobacco product,
  285  a retailer, or a wholesaler.
  286         (c) “Delivery sale” means any sale of tobacco products to a
  287  consumer in this state for which:
  288         1. The consumer submits the order for the sale by
  289  telephonic or other voice transmission, mail, delivery service,
  290  or the Internet or other online service; or
  291         2. The tobacco products are delivered by use of mail or a
  292  delivery service.
  293         (d) “Delivery service” means any person engaged in the
  294  commercial delivery of letters, packages, or other containers.
  295         (e) “Legal minimum purchase age” means the minimum age at
  296  which an individual may legally purchase tobacco products in
  297  this state.
  298         (f) “Mail” or “mailing” means the shipment of tobacco
  299  products through the United States Postal Service.
  300         (g) “Retailer” means any person who is not a licensed
  301  distributor but who is in possession of tobacco products subject
  302  to tax under this chapter for the purposes of selling the
  303  tobacco products to consumers.
  304         (h) “Shipping container” means a container in which tobacco
  305  products are shipped in connection with a delivery sale.
  306         (i) “Shipping document” means a bill of lading, airbill,
  307  United States Postal Service form, or any other document used to
  308  verify the undertaking by a delivery service to deliver letters,
  309  packages, or other containers.
  310         (j) “Tobacco products” means all cigarettes, smoking
  311  tobacco, snuff, fine-cut chewing tobacco, cut and granulated
  312  tobacco, cavendish, and plug or twist tobacco.
  313         (2)(a) A sale of tobacco products constituting a delivery
  314  sale pursuant to paragraph (1)(c) is a delivery sale regardless
  315  of whether the person accepting the order for the delivery sale
  316  is located inside or outside this state.
  317         (b) A retailer must obtain a license from the division
  318  pursuant to the requirements of this chapter before accepting an
  319  order for a delivery sale.
  320         (c) A person may not make a delivery sale of tobacco
  321  products to any individual who is not an adult.
  322         (d) Each person accepting an order for a delivery sale must
  323  comply with each of the following:
  324         1. The age-verification requirements set forth in
  325  subsection (3).
  326         2. The disclosure requirements set forth in subsection (4).
  327         3. The shipping requirements set forth in subsection (5).
  328         4. The registration and reporting requirements set forth in
  329  subsection (6).
  330         5. The tax collection requirements set forth in subsection
  331  (7).
  332         6. The licensing and tax stamp requirements set forth in
  333  this chapter which apply to sales of tobacco products occurring
  334  entirely in this state.
  335         7. All laws of this state generally applicable to sales of
  336  tobacco products occurring entirely in this state which impose
  337  excise taxes and assessments.
  338         (3) A person may not mail, ship, or otherwise deliver
  339  tobacco products in connection with an order for a delivery sale
  340  unless, before the first delivery to the consumer, the person
  341  accepting the order for the delivery sale:
  342         (a) Obtains from the individual submitting the order a
  343  certification that includes:
  344         1. Reliable confirmation that the individual is an adult;
  345  and
  346         2. A statement signed by the individual in writing and
  347  under penalty of perjury which:
  348         a. Certifies the address and date of birth of the
  349  individual; and
  350         b. Confirms that the individual wants to receive delivery
  351  sales from a tobacco company and understands that, under the
  352  laws of this state, the following actions are illegal:
  353         (I) Signing another individual’s name to the certification;
  354         (II) Selling tobacco products to individuals under the
  355  legal minimum purchase age; and
  356         (III) Purchasing tobacco products, if the person making the
  357  purchase is under the legal minimum purchase age.
  358         (b) Makes a good faith effort to verify the information
  359  contained in the certification provided by the individual
  360  pursuant to paragraph (a) against a commercially available
  361  database that may be reasonably relied upon for accurate age
  362  information or obtains a photocopy or other image of a valid
  363  government-issued identification card stating the date of birth
  364  or age of the individual.
  365         (c) Provides to the individual, via electronic mail or
  366  other means, a notice meeting the requirements of subsection
  367  (4).
  368         (d) If an order for tobacco products is made pursuant to an
  369  advertisement on the Internet, receives payment for the delivery
  370  sale from the consumer by a credit or debit card issued in the
  371  name of the consumer, or by personal or company check of the
  372  consumer.
  373         (e) Imposes a two-carton minimum on each order of
  374  cigarettes, and requires payment for the purchase of any tobacco
  375  product to be made by personal or company check of the purchaser
  376  or the purchaser’s credit card or debit card. Payment by money
  377  order or cash may not be received or permitted. The person
  378  accepting the order for delivery sale shall submit, to each
  379  credit-card acquiring company with which the person has credit
  380  card sales, identification information in an appropriate form
  381  and format so that the words “tobacco product” may be printed in
  382  the purchaser’s credit card statement when a purchase of a
  383  tobacco product is made by credit card payment.
  384         (f) Makes a telephone call after 5 p.m. to the purchaser
  385  confirming the order before shipping the tobacco products. The
  386  telephone call may be a person-to-person call or a recorded
  387  message. The person accepting the order for delivery sale is not
  388  required to speak directly with a person and may leave a message
  389  on an answering machine or through voice mail.
  390  
  391  In addition to the requirements of this subsection, a person
  392  accepting an order for a delivery sale may request that a
  393  consumer provide an electronic mail address.
  394         (4) The notice described in paragraph (3)(c) must include
  395  prominent and clearly legible statements that sales of tobacco
  396  products are:
  397         (a) Illegal if made to individuals who are not adults.
  398         (b) Restricted to those individuals who provide verifiable
  399  proof of age in accordance with subsection (3).
  400         (c) Taxable under this chapter.
  401  
  402  The notice must include an explanation of how each tax has been,
  403  or is to be, paid with respect to the delivery sale.
  404         (5) Each person who mails, ships, or otherwise delivers
  405  tobacco products in connection with an order for a delivery sale
  406  must:
  407         (a) Include as part of the shipping documents, in a clear
  408  and conspicuous manner, the following statement: “Tobacco
  409  Products: Florida law prohibits shipping to individuals under 18
  410  years of age and requires the payment of all applicable taxes.”
  411         (b) Use a method of mailing, shipping, or delivery which
  412  obligates the delivery service to require:
  413         1. The individual submitting the order for the delivery
  414  sale or another adult who resides at the individual’s address to
  415  sign his or her name to accept delivery of the shipping
  416  container. Proof of the legal minimum purchase age of the
  417  individual accepting delivery is required only if the individual
  418  appears to be under 27 years of age.
  419         2. Proof that the individual is either the addressee or the
  420  adult designated by the addressee, in the form of a valid,
  421  government-issued identification card bearing a photograph of
  422  the individual who signs to accept delivery of the shipping
  423  container.
  424         (c) Provide to the delivery service, if such service is
  425  used, evidence of full compliance with subsection (7).
  426  
  427  If the person accepting a purchase order for a delivery sale
  428  delivers the tobacco products without using a delivery service,
  429  the person must comply with all of the requirements of this
  430  section which apply to a delivery service. Any failure to comply
  431  with a requirement of this section constitutes a violation
  432  thereof.
  433         (6)(a) Before making sales or shipping tobacco products in
  434  connection with sales, a person shall file with the division a
  435  statement providing the person’s name, trade name, and the
  436  address of the person’s principal place of business, as well as
  437  any other place of business.
  438         (b) No later than the 10th day of each month, each person
  439  who has made a sale or mailed, shipped, or otherwise delivered
  440  tobacco products in connection with any sale during the previous
  441  calendar month shall file with the division a memorandum or a
  442  copy of the invoice, providing for each sale:
  443         1. The name and address of the individual who submitted the
  444  order for the sale.
  445         2. The name and address of the individual who accepted
  446  delivery of the tobacco products.
  447         3. The name and address of the person who accepted the
  448  order for the sale of the tobacco products.
  449         4. The name and address of the delivery service and the
  450  name of the individual making the delivery.
  451         5. The brand or brands of the tobacco products sold in the
  452  sale.
  453         6. The quantity of each brand of tobacco products sold in
  454  the sale.
  455         (c) A person may comply with the requirements of this
  456  subsection by complying with the requirements of 15 U.S.C. s.
  457  376.
  458         (d) This section does not apply to sales of tobacco
  459  products by a licensed distributor or to sales of tobacco
  460  products by a retailer purchased from a licensed distributor.
  461         (7) Each person accepting a purchase order for a delivery
  462  sale shall collect and remit to the division all taxes imposed
  463  on tobacco products by this state with respect to the delivery
  464  sale. With respect to cigarettes, the collection and remission
  465  are not required if the person has obtained proof in the form of
  466  the presence of applicable tax stamps or tax-exempt stamps, or
  467  other proof that the taxes have already been paid to this state.
  468         (8)(a) Except as otherwise provided in this section, a
  469  violation of this section by a person other than an individual
  470  who is not an adult is a misdemeanor of the first degree,
  471  punishable as provided in s. 775.082 or s. 775.083, and:
  472         1. For a first violation of this section, the person shall
  473  be fined $1,000 or five times the retail value of the tobacco
  474  products involved in the violation, whichever is greater.
  475         2. For a second or subsequent violation of this section,
  476  the person shall be fined $5,000 or five times the retail value
  477  of the tobacco products involved in the violation, whichever is
  478  greater.
  479         (b) A person who is an adult and knowingly submits a false
  480  certification under subsection (3) commits a misdemeanor of the
  481  first degree, punishable as provided in s. 775.082 or s.
  482  775.083. For each offense, the person shall be fined $10,000 or
  483  five times the retail value of the tobacco products involved in
  484  the violation, whichever is greater.
  485         (c) A person who fails to pay any tax required in
  486  connection with a delivery sale shall pay, in addition to any
  487  other penalty, a penalty of five times the retail value of the
  488  tobacco products involved.
  489         (d) Any tobacco products sold or attempted to be sold in a
  490  delivery sale not meeting the requirements of this section shall
  491  be forfeited to the state pursuant to s. 210.185.
  492         (e) A person who, in connection with a delivery sale,
  493  delivers tobacco products on behalf of a delivery service to an
  494  individual who is not an adult commits a misdemeanor of the
  495  third degree, punishable as provided in s. 775.082 or s.
  496  775.083.
  497         (f) Any fixture, equipment, or other material or personal
  498  property on the premises of any person who, with the intent to
  499  defraud this state, mails or ships tobacco products into this
  500  state and fails to satisfy any of the requirements of this
  501  section is a contraband article within the definition of s.
  502  932.701(2)(a)3.
  503         (g) An individual who is not an adult and who knowingly
  504  violates any provision of this section commits a misdemeanor of
  505  the third degree, punishable as provided in s. 775.082 or s.
  506  775.083.
  507         (9) The Attorney General, the Attorney General’s designee,
  508  a state attorney, or any person who holds a permit under 26
  509  U.S.C. s. 5713 may bring an action in the appropriate court in
  510  this state to prevent or restrain violations of this section by
  511  any person.
  512         Section 6. Subsection (6) of section 210.18, Florida
  513  Statutes, is amended, and subsection (11) is added to that
  514  section, to read:
  515         210.18 Penalties for tax evasion; reports by sheriffs.—
  516         (6)(a) Every person, firm, or corporation, other than a
  517  licensee under the provisions of this part, who possesses,
  518  removes, deposits, or conceals, or aids in the possessing,
  519  removing, depositing, or concealing of, any unstamped cigarettes
  520  not in excess of 50 cartons is guilty of a misdemeanor of the
  521  second degree, punishable as provided in s. 775.082 or s.
  522  775.083. In lieu of the penalties provided in those sections,
  523  however, the person, firm, or corporation may pay the tax plus a
  524  penalty equal to the amount of the tax authorized under s.
  525  210.02 on the unstamped cigarettes.
  526         (a)(b) Every person, firm, or corporation, other than a
  527  licensee under the provisions of this part, who possesses,
  528  removes, deposits, or conceals, or aids in the possessing,
  529  removing, depositing, or concealing of, any unstamped cigarettes
  530  in excess of 50 cartons is presumed to have knowledge that they
  531  have not been taxed and commits is guilty of a felony of the
  532  third degree, punishable as provided in s. 775.082, s. 775.083,
  533  or s. 775.084.
  534         (b)(c) This section does not apply to a person possessing
  535  not in excess of three cartons of such cigarettes purchased by
  536  such possessor outside the state in accordance with the laws of
  537  the place where purchased and brought into this state by such
  538  possessor. The burden of proof that such cigarettes were
  539  purchased outside the state and in accordance with the laws of
  540  the place where purchased shall in all cases be upon the
  541  possessor of such cigarettes.
  542         (11) The division shall create a toll-free number for
  543  reporting violations of this part. Upon a determination that a
  544  violation has occurred, the informant who provided the
  545  information that led to the determination shall be paid a reward
  546  of up to 50 percent of the fine levied and paid under this
  547  section. A notice must be conspicuously displayed in every
  548  location where cigarettes are sold which contains the following
  549  provision in conspicuous type: “NOTICE TO CUSTOMER: FLORIDA LAW
  550  PROHIBITS THE POSSESSION OR SALE OF UNSTAMPED CIGARETTES. REPORT
  551  VIOLATIONS TO (TOLL-FREE NUMBER). YOU MAY BE ELIGIBLE FOR A CASH
  552  REWARD.” This notice must be provided at the expense of the
  553  retail dealer.
  554         Section 7. Section 210.276, Florida Statutes, is created to
  555  read:
  556         210.276 Surcharge on tobacco products.—
  557         (1) A surcharge is levied upon all tobacco products in this
  558  state and upon any person engaged in business as a distributor
  559  of tobacco products at the rate of 60 percent of the wholesale
  560  sales price. The surcharge shall be levied at the time the
  561  distributor:
  562         (a) Brings or causes to be brought into this state from
  563  without the state tobacco products for sale;
  564         (b) Makes, manufactures, or fabricates tobacco products in
  565  this state for sale in this state; or
  566         (c) Ships or transports tobacco products to retailers in
  567  this state, to be sold by those retailers. A surcharge may not
  568  be levied on tobacco products shipped or transported outside
  569  this state for sale or use outside this state.
  570         (2) A surcharge is imposed upon the use or storage by
  571  consumers of tobacco products in this state and upon such
  572  consumers at the rate of 60 percent of the wholesale sales
  573  price. The surcharge imposed by this subsection does not apply
  574  if the surcharge imposed by subsection (1) on such tobacco
  575  products has been paid. This surcharge does not apply to the use
  576  or storage of tobacco products in quantities of less than 1
  577  pound in the possession of any one consumer.
  578         (3) Any tobacco product with respect to which a surcharge
  579  has once been imposed under this section is not again subject to
  580  surcharge under this section.
  581         (4) No surcharge shall be imposed by this section upon
  582  tobacco products not within the taxing power of the state under
  583  the Commerce Clause of the United States Constitution.
  584         (5) The exemptions provided for cigarettes under s.
  585  210.04(4) also apply to tobacco products subject to a surcharge
  586  under this section.
  587         (6) The surcharge levied under this section shall be
  588  administered, collected, and enforced in the same manner as the
  589  tax imposed under s. 210.30.
  590         (7) Revenue produced from the surcharge levied under this
  591  section shall be deposited into the Health Care Trust Fund
  592  within the Agency for Health Care Administration.
  593         Section 8. (1) The additional surcharges imposed by ss.
  594  210.011 and 210.276, Florida Statutes, are levied upon existing
  595  inventory on July 1, 2009. On July 1, 2009, each manufacturer,
  596  distributing agent, wholesale dealer, retail dealer, as defined
  597  in s. 210.01, Florida Statutes, and manufacturer, distributor,
  598  and retailer, as defined in s. 210.25, Florida Statutes, in the
  599  state shall take an inventory of the cigarettes and other
  600  tobacco products in its possession before opening for business.
  601  The amount of inventory shall be certified to the Division of
  602  Alcoholic Beverages and Tobacco of the Department of Business
  603  and Professional Regulation on or before July 21, 2009, and
  604  shall include documentation accompanied by certified check,
  605  money order, or an electronic funds transfer for the amount of
  606  the additional surcharge due on the inventory. For the purpose
  607  of calculating the tax due by a retailer on the inventory of
  608  tobacco products other than cigarettes under s. 210.276, Florida
  609  Statutes, the wholesale sales price shall equal 75 percent of
  610  the price paid by the retailer to a distributor or manufacturer.
  611  The manufacturer, distributing agent, wholesale dealer, retail
  612  dealer, distributor, or retailer may pay the surcharge in four
  613  equal installments of 25 percent of the total amount due. If the
  614  manufacturer, distributing agent, wholesale dealer, retail
  615  dealer, distributor, or retailer chooses to pay in installments,
  616  it must pay the first installment by July 21, 2009, along with
  617  the required documentation; the second installment by August 10,
  618  2009; the third installment by August 30, 2009; and the fourth
  619  installment by September 9, 2009. Chapter 210, Florida Statutes,
  620  relating to penalties and interest for delinquent payments,
  621  applies to this section. The proceeds of the additional
  622  surcharge on the existing inventory shall be deposited into the
  623  Health Care Trust Fund within the Agency for Health Care
  624  Administration.
  625         (2) For the purpose of compensating each manufacturer,
  626  distributing agent, wholesale dealer, retail dealer,
  627  distributor, and retailer for taking an inventory of the
  628  cigarettes and other tobacco products in its possession and
  629  remitting the surcharge levied on these products, each
  630  manufacturer, distributing agent, wholesale dealer, retail
  631  dealer, distributor, and retailer may deduct 5 percent of the
  632  amount of the surcharge due and certified and remitted to the
  633  Division of Alcoholic Beverages and Tobacco of the Department of
  634  Business and Professional Regulation as a collection allowance.
  635         (a) The collection allowance may not be granted, nor may
  636  any deduction be permitted, if the required documentation or
  637  surcharge is delinquent at the time of payment.
  638         (b) The Division of Alcoholic Beverages and Tobacco of the
  639  Department of Business and Professional Regulation may deny the
  640  collection allowance if a manufacturer, distributing agent,
  641  wholesale dealer, retail dealer, distributor, or retailer of
  642  products files incomplete documentation. For the purposes of the
  643  surcharge on inventory, a return is incomplete if it is lacking
  644  the information necessary to ascertain the surcharge due.
  645         Section 9. Subsection (5) of section 210.05, Florida
  646  Statutes, is amended to read:
  647         210.05 Preparation and sale of stamps; discount.—
  648         (5) Cigarettes sold to the Seminole Indian Tribe of Florida
  649  shall be administered as provided in s. 210.1801. Agents or
  650  wholesale dealers may sell stamped but untaxed cigarettes to the
  651  Seminole Indian Tribe, or to members thereof, for retail sale.
  652  Agents or wholesale dealers shall treat such cigarettes and the
  653  sale thereof in the same manner, with respect to reporting and
  654  stamping, as other sales under this part, but agents or
  655  wholesale dealers shall not collect from the purchaser the tax
  656  imposed by s. 210.02. The purchaser hereunder shall be
  657  responsible to the agent or wholesale dealer for the services
  658  and expenses incurred in affixing the stamps and accounting
  659  therefor.
  660         Section 10. Section 210.1801, Florida Statutes, is created
  661  to read:
  662         210.1801 Exempt cigarettes for members of recognized Indian
  663  tribes.—
  664         (1) Notwithstanding any provision of this chapter to the
  665  contrary, a member of an Indian tribe recognized in this state
  666  who purchases cigarettes on an Indian reservation for his or her
  667  own use is exempt from paying a cigarette tax and surcharge.
  668  However, such member purchasing cigarettes outside of Indian
  669  reservation or a nontribal member purchasing cigarettes on an
  670  Indian reservation is not exempt from paying the cigarette tax
  671  or surcharge when purchasing cigarettes within this state.
  672  Accordingly, the tax and surcharge shall apply to all cigarettes
  673  sold on an Indian reservation to a nontribal member, and
  674  evidence of such tax or surcharge shall be by means of an
  675  affixed cigarette tax and surcharge stamp.
  676         (2) In order to ensure an adequate quantity of cigarettes
  677  on Indian reservations which may be purchased by tribal members
  678  who are exempt from the cigarette tax and surcharge, the
  679  division shall provide recognized Indian tribes within this
  680  state with Indian-tax-and-surcharge-exemption coupons as set
  681  forth in this section. A reservation cigarette seller shall
  682  present such Indian-tax-and-surcharge-exemption coupons to a
  683  wholesale dealer licensed in this state in order to purchase
  684  stamped cigarettes that are exempt from the imposition of the
  685  cigarette tax and surcharge. A tribal member may purchase
  686  cigarettes that are exempt from the cigarette tax and surcharge
  687  from a reservation cigarette seller even though such cigarettes
  688  have an affixed cigarette tax-and-surcharge stamp.
  689         (3) Indian-tax-and-surcharge-exemption coupons shall be
  690  provided to the recognized governing body of each Indian tribe
  691  to ensure that each Indian tribe can obtain cigarettes that are
  692  exempt from the tax and surcharge which are for the use of the
  693  tribe or its members. The Indian-tax-and-surcharge-exemption
  694  coupons shall be provided to the Indian tribes quarterly. It is
  695  intended that each Indian tribe will distribute the Indian-tax
  696  and-surcharge-exemption coupons to reservation cigarette sellers
  697  on such tribe’s reservation. Only Indian tribes or reservation
  698  cigarette sellers on their reservations may redeem such Indian
  699  tax-and-surcharge-exemption coupons pursuant to this section.
  700         (a) The number of Indian-tax-and-surcharge-exemption
  701  coupons to be given to the recognized governing body of each
  702  Indian tribe shall be based upon the probable demand of the
  703  tribal members on the tribe’s reservation plus the number needed
  704  for official tribal use. The annual total number of Indian-tax
  705  and-surcharge-exemption coupons to be given to the recognized
  706  governing body of each Indian tribe shall be calculated by
  707  multiplying the number of members of the tribe times five packs
  708  of cigarettes times 365.
  709         (b) Each wholesale dealer shall keep records of
  710  transactions involving Indian-tax-and surcharge-exemption
  711  coupons and shall submit appropriate documentation to the
  712  division when claiming a refund as set forth in this section.
  713  Documentation must contain at least the following information:
  714         1. The identity of the Indian tribe from which an Indian
  715  tax-and-surcharge-exemption coupon is received;
  716         2. The identity and the quantity of the product for which
  717  an Indian-tax-and-surcharge-exemption coupon is provided;
  718         3. The date of issuance and the date of expiration of the
  719  Indian-tax-and-surcharge-exemption coupon; and
  720         4. Any other information as the division may deem
  721  appropriate.
  722         (4)(a) An Indian tribe may purchase cigarettes for its own
  723  official use from a wholesale dealer without payment of the
  724  cigarette tax and surcharge to the extent that the Indian tribe
  725  provides the wholesale dealer with Indian-tax-and-surcharge
  726  exemption coupons entitling the Indian tribe to purchase such
  727  quantities of cigarettes as allowed by each Indian-tax-and
  728  surcharge-exemption coupon without paying the cigarette tax and
  729  surcharge.
  730         (b) A tribal member may purchase cigarettes for his or her
  731  own use without payment of the cigarette tax and surcharge if
  732  the tribal member makes such purchase on a qualified
  733  reservation.
  734         (c) A reservation cigarette seller may purchase cigarettes
  735  for resale without payment of the cigarette tax from a wholesale
  736  dealer licensed pursuant to this chapter:
  737         1. If the reservation cigarette seller brings the
  738  cigarettes or causes them to be delivered onto a qualified
  739  reservation for resale on the reservation;
  740         2. To the extent that the reservation cigarette seller
  741  provides the wholesale dealer with Indian-tax-and-surcharge
  742  exemption coupons entitling the reservation cigarette seller to
  743  purchase such quantities of cigarettes as allowed on each
  744  Indian-tax-and-surcharge-exemption coupon without paying the
  745  cigarette tax and surcharge; and
  746         3. If the cigarettes are affixed with a cigarette tax and
  747  surcharge stamp.
  748         (d) A wholesale dealer may not collect the cigarette tax
  749  and surcharge from any purchaser if the purchaser gives the
  750  dealer Indian-tax-and-surcharge-exemption coupons that entitle
  751  the purchaser to purchase such quantities of cigarettes as
  752  allowed on each such Indian-tax-and-surcharge-exemption coupon
  753  without paying the cigarette tax and surcharge.
  754         (5) A wholesale dealer who has one or more Indian-tax-and
  755  surcharge-exemption coupons may file a claim for a refund with
  756  respect to any cigarette tax previously paid on cigarettes that
  757  the wholesale dealer sold without collecting the tax because the
  758  dealer accepted an Indian-tax-and-surcharge-exemption coupon
  759  from a purchaser pursuant to this section.
  760         (6) If an Indian tribe enters into an agreement with the
  761  state and the Legislature approves such agreement regarding the
  762  sale and distribution of cigarettes on the tribe’s reservation,
  763  the terms of the agreement take precedence over the provisions
  764  of this section and exempt the tribe from the tax and surcharge
  765  if the tax and surcharge are specifically addressed in the
  766  agreement. The sale or distribution, including transportation,
  767  of any cigarettes to the tribe’s reservation shall be in
  768  accordance with the provisions of the agreement. The agreement
  769  must provide for revenue sharing between the tribe and the state
  770  relating to the imposition and collection of the taxes imposed
  771  by ss. 210.02 and 210.30 and the surcharges imposed by ss.
  772  210.011 and 210.276 and must, at a minimum, provide for the
  773  state to receive as revenue sharing from the tribe the full
  774  amounts of the surcharges imposed by ss. 210.011 and 210.276.
  775         Section 11. This act shall take effect July 1, 2009.