Florida Senate - 2019 COMMITTEE AMENDMENT
Bill No. CS for SB 1618
Ì923616,Î923616
LEGISLATIVE ACTION
Senate . House
Comm: WD .
04/24/2019 .
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The Committee on Rules (Simmons) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. This act may be cited as the “Tobacco 21 Act.”
6 Section 2. Section 163.085, Florida Statutes, is created to
7 read:
8 163.085 Preemption of the establishment of the minimum age
9 for tobacco products, nicotine products, or nicotine dispensing
10 devices, and the regulation of marketing of such products.—
11 (1) DEFINITIONS.—As used in this section, the term:
12 (a) “Local government” means a county, municipality, or
13 special district.
14 (b) “Minimum age” means the lawful age to purchase or
15 knowingly possess tobacco products, nicotine products, or
16 nicotine dispensing devices.
17 (c) “Nicotine dispensing device” has the same meaning as in
18 s. 877.112.
19 (d) “Nicotine product” has the same meaning as in s.
20 877.112.
21 (e) “Retail licensure” means any certification,
22 registration, or license that is required for a person, firm,
23 association, or corporation to deal, at retail, with or
24 regarding any tobacco products.
25 (f) “Tobacco products” has the same meaning as in s.
26 569.002.
27 (2) PREEMPTION.—The establishment of the minimum age for
28 the sale and delivery of tobacco products, nicotine products, or
29 nicotine dispensing devices, and the regulation of marketing as
30 it relates to the minimum age regarding such products, is
31 preempted to the state. Nothing in this section shall be
32 construed to affect a local government’s ability to require
33 retail licensure for the sale of tobacco products.
34 Section 3. Present paragraphs (b) through (f) of subsection
35 (1) of section 210.095, Florida Statutes, are redesignated as
36 paragraphs (a) through (e), respectively, a new paragraph (f) is
37 added to that section, and present paragraph (a) of subsection
38 (1), paragraph (c) of subsection (2), paragraph (a) of
39 subsection (3), paragraph (a) of subsection (4), subsection (5),
40 and paragraphs (a), (b), (e), and (g) of subsection (8) of that
41 section are amended, to read:
42 210.095 Mail order, Internet, and remote sales of tobacco
43 products; age verification.—
44 (1) For purposes of this section, the term:
45 (a) “Adult” means an individual who is at least of the
46 legal minimum purchase age for tobacco products.
47 (f) “The minimum age for purchase” means 18 years of age
48 for cigars and 21 years of age for any other tobacco product.
49 (2)
50 (c) A person may not make a delivery sale of tobacco
51 products to any individual who is not the minimum age for
52 purchase an adult.
53 (3) A person may not mail, ship, or otherwise deliver
54 tobacco products in connection with an order for a delivery sale
55 unless, before the first delivery to the consumer, the person
56 accepting the order for the delivery sale:
57 (a) Obtains from the individual submitting the order a
58 certification that includes:
59 1. Reliable confirmation that the individual is the minimum
60 age for purchase an adult; and
61 2. A statement signed by the individual in writing and
62 under penalty of perjury which:
63 a. Certifies the address and date of birth of the
64 individual; and
65 b. Confirms that the individual wants to receive delivery
66 sales from a tobacco company and understands that, under the
67 laws of this state, the following actions are illegal:
68 (I) Signing another individual’s name to the certification;
69 (II) Selling tobacco products to individuals under the
70 legal minimum purchase age; and
71 (III) Purchasing tobacco products, if the person making the
72 purchase is under the legal minimum purchase age.
73
74 In addition to the requirements of this subsection, a person
75 accepting an order for a delivery sale may request that a
76 consumer provide an electronic mail address.
77 (4) The notice described in paragraph (3)(c) must include
78 prominent and clearly legible statements that sales of tobacco
79 products are:
80 (a) Illegal if made to individuals who are not the minimum
81 age for purchase adults.
82
83 The notice must include an explanation of how each tax has been,
84 or is to be, paid with respect to the delivery sale.
85 (5) Each person who mails, ships, or otherwise delivers
86 tobacco products in connection with an order for a delivery sale
87 must:
88 (a) Include as part of the shipping documents, in a clear
89 and conspicuous manner, the following statement: “Tobacco
90 Products: Florida law prohibits shipping cigars to individuals
91 under 18 years of age, prohibits shipping any other tobacco
92 product to individuals under 21 years of age, and requires the
93 payment of all applicable taxes.”
94 (b) Use a method of mailing, shipping, or delivery which
95 obligates the delivery service to require:
96 1. The individual submitting the order for the delivery
97 sale or another individual who is the minimum age for purchase
98 adult who resides at the individual’s address to sign his or her
99 name to accept delivery of the shipping container. Proof of the
100 legal minimum purchase age of the individual accepting delivery
101 is required only if the individual appears to be under 27 years
102 of age.
103 2. Proof that the individual is either the addressee or the
104 individual who is the minimum age for purchase adult designated
105 by the addressee, in the form of a valid, government-issued
106 identification card bearing a photograph of the individual who
107 signs to accept delivery of the shipping container.
108 (c) Provide to the delivery service, if such service is
109 used, evidence of full compliance with subsection (7).
110
111 If the person accepting a purchase order for a delivery sale
112 delivers the tobacco products without using a delivery service,
113 the person must comply with all of the requirements of this
114 section which apply to a delivery service. Any failure to comply
115 with a requirement of this section constitutes a violation
116 thereof.
117 (8)(a) Except as otherwise provided in this section, a
118 violation of this section by a person other than an individual
119 who is not the minimum age for purchase an adult is a
120 misdemeanor of the first degree, punishable as provided in s.
121 775.082 or s. 775.083, and:
122 1. For a first violation of this section, the person shall
123 be fined $1,000 or five times the retail value of the tobacco
124 products involved in the violation, whichever is greater.
125 2. For a second or subsequent violation of this section,
126 the person shall be fined $5,000 or five times the retail value
127 of the tobacco products involved in the violation, whichever is
128 greater.
129 (b) A person who is the minimum age for purchase an adult
130 and knowingly submits a false certification under subsection (3)
131 commits a misdemeanor of the first degree, punishable as
132 provided in s. 775.082 or s. 775.083. For each offense, the
133 person shall be fined $10,000 or five times the retail value of
134 the tobacco products involved in the violation, whichever is
135 greater.
136 (e) A person who, in connection with a delivery sale,
137 delivers tobacco products on behalf of a delivery service to an
138 individual who is not the minimum age for purchase an adult
139 commits a misdemeanor of the third degree, punishable as
140 provided in s. 775.082 or s. 775.083.
141 (g) An individual who is not the minimum age for purchase
142 an adult and who knowingly violates any provision of this
143 section commits a misdemeanor of the third degree, punishable as
144 provided in s. 775.082 or s. 775.083.
145 Section 4. Subsection (1) of section 386.212, Florida
146 Statutes, is amended to read:
147 386.212 Smoking prohibited near school property; penalty.—
148 (1) It is unlawful for any person under 18 years of age to
149 smoke a cigar, or any person under 21 years of age to smoke any
150 other tobacco product, in, on, or within 1,000 feet of the real
151 property comprising a public or private elementary, middle, or
152 secondary school between the hours of 6 a.m. and midnight. This
153 section does not apply to any person occupying a moving vehicle
154 or within a private residence.
155 Section 5. Present subsections (3) through (7) of section
156 569.002, Florida Statutes, are redesignated as subsections (4)
157 through (8), respectively, a new subsection (3) is added to that
158 section, and present subsection (7) is amended, to read:
159 569.002 Definitions.—As used in this chapter, the term:
160 (3) “The minimum age for purchase” means 18 years of age
161 for cigars and 21 years of age for any other tobacco product.
162 (8)(7) “Any person under the minimum age of purchase 18”
163 does not include any person under the minimum age of purchase 18
164 who:
165 (a) Has had his or her disability of nonage removed under
166 chapter 743;
167 (a)(b) Is in the military reserve or on active duty in the
168 Armed Forces of the United States; or
169 (c) Is otherwise emancipated by a court of competent
170 jurisdiction and released from parental care and responsibility;
171 or
172 (b)(d) Is acting in his or her scope of lawful employment
173 with an entity licensed under the provisions of chapter 210 or
174 this chapter.
175 Section 6. Subsections (1) and (2) of section 569.007,
176 Florida Statutes, are amended to read:
177 569.007 Sale or delivery of tobacco products;
178 restrictions.—
179 (1) In order to prevent persons under the minimum age of
180 purchase 18 years of age from purchasing or receiving tobacco
181 products, the sale or delivery of tobacco products is
182 prohibited, except:
183 (a) When under the direct control or line of sight of the
184 dealer or the dealer’s agent or employee; or
185 (b) Sales from a vending machine are prohibited under the
186 provisions of paragraph (1)(a) and are only permissible from a
187 machine that is equipped with an operational lockout device
188 which is under the control of the dealer or the dealer’s agent
189 or employee who directly regulates the sale of items through the
190 machine by triggering the lockout device to allow the dispensing
191 of one tobacco product. The lockout device must include a
192 mechanism to prevent the machine from functioning if the power
193 source for the lockout device fails or if the lockout device is
194 disabled, and a mechanism to ensure that only one tobacco
195 product is dispensed at a time.
196 (2) The provisions of subsection (1) shall not apply to an
197 establishment that prohibits persons under 21 18 years of age on
198 the licensed premises.
199 Section 7. Section 569.0075, Florida Statutes, is amended
200 to read:
201 569.0075 Gift of sample tobacco products prohibited.—The
202 gift of sample tobacco products to any person under the minimum
203 age for purchase age of 18 by an entity licensed or permitted
204 under the provisions of chapter 210 or this chapter, or by an
205 employee of such entity, is prohibited and is punishable as
206 provided in s. 569.101.
207 Section 8. Subsections (1), (2), and (3) of section
208 569.008, Florida Statutes, are amended to read:
209 569.008 Responsible retail tobacco products dealers;
210 qualifications; mitigation of disciplinary penalties; diligent
211 management and supervision; presumption.—
212 (1) The Legislature intends to prevent the sale of tobacco
213 products to persons under the minimum age for purchase 18 years
214 of age and to encourage retail tobacco products dealers to
215 comply with responsible practices in accordance with this
216 section.
217 (2) To qualify as a responsible retail tobacco products
218 dealer, the dealer must establish and implement procedures
219 designed to ensure that the dealer’s employees comply with the
220 provisions of this chapter. The dealer must provide a training
221 program for the dealer’s employees which addresses the use and
222 sale of tobacco products and which includes at least the
223 following topics:
224 (a) Laws covering the sale of tobacco products.
225 (b) Methods of recognizing and handling customers under the
226 minimum age for purchase 18 years of age.
227 (c) Procedures for proper examination of identification
228 cards in order to verify that customers are not under the
229 minimum age for purchase 18 years of age.
230 (d) The use of the age audit identification function on
231 electronic point-of-sale equipment, where available.
232 (3) In determining penalties under s. 569.006, the division
233 may mitigate penalties imposed against a dealer because of an
234 employee’s illegal sale of a tobacco product to a person under
235 the minimum age for purchase 18 years of age if the following
236 conditions are met:
237 (a) The dealer is qualified as a responsible dealer under
238 this section.
239 (b) The dealer provided the training program required under
240 subsection (2) to that employee before the illegal sale
241 occurred.
242 (c) The dealer had no knowledge of that employee’s
243 violation at the time of the violation and did not direct,
244 approve, or participate in the violation.
245 (d) If the sale was made through a vending machine, the
246 machine was equipped with an operational lock-out device.
247 Section 9. Section 569.101, Florida Statutes, is amended to
248 read:
249 569.101 Selling, delivering, bartering, furnishing, or
250 giving tobacco products to persons under the minimum age for
251 purchase 18 years of age; criminal penalties; defense.—
252 (1) It is unlawful to sell, deliver, barter, furnish, or
253 give, directly or indirectly, to any person who is under the
254 minimum age for purchase 18 years of age, any tobacco product.
255 (2) Any person who violates subsection (1) commits a
256 misdemeanor of the second degree, punishable as provided in s.
257 775.082 or s. 775.083. However, any person who violates
258 subsection (1) for a second or subsequent time within 1 year of
259 the first violation, commits a misdemeanor of the first degree,
260 punishable as provided in s. 775.082 or s. 775.083.
261 (3) A person charged with a violation of subsection (1) has
262 a complete defense if, at the time the tobacco product was sold,
263 delivered, bartered, furnished, or given:
264 (a) The buyer or recipient falsely evidenced that she or he
265 was the minimum age for purchase 18 years of age or older;
266 (b) The appearance of the buyer or recipient was such that
267 a prudent person would believe the buyer or recipient to be the
268 minimum age for purchase 18 years of age or older; and
269 (c) Such person carefully checked a driver license or an
270 identification card issued by this state or another state of the
271 United States, a passport, or a United States armed services
272 identification card presented by the buyer or recipient and
273 acted in good faith and in reliance upon the representation and
274 appearance of the buyer or recipient in the belief that the
275 buyer or recipient was the minimum age for purchase 18 years of
276 age or older.
277 Section 10. Section 569.11, Florida Statutes, is amended to
278 read:
279 569.11 Possession, Misrepresenting age or military service
280 to purchase, and purchase of tobacco products by persons under
281 the minimum age for purchase 18 years of age prohibited;
282 penalties; jurisdiction; disposition of fines.—
283 (1) It is unlawful for any person under the minimum age for
284 purchase 18 years of age to knowingly possess any tobacco
285 product. Any person under the minimum age for purchase 18 years
286 of age who violates the provisions of this subsection commits a
287 noncriminal violation as provided in s. 775.08(3), punishable
288 by:
289 (a) For a first violation, 16 hours of community service
290 or, instead of community service, a $25 fine. In addition, the
291 person must attend a school-approved anti-tobacco program, if
292 locally available;
293 (b) For a second violation within 12 weeks of the first
294 violation, a $25 fine; or
295 (c) For a third or subsequent violation within 12 weeks of
296 the first violation, the court must direct the Department of
297 Highway Safety and Motor Vehicles to withhold issuance of or
298 suspend or revoke the person’s driver license or driving
299 privilege, as provided in s. 322.056.
300
301 Any second or subsequent violation not within the 12-week time
302 period after the first violation is punishable as provided for a
303 first violation.
304 (2) It is unlawful for any person under the minimum age for
305 purchase 18 years of age to misrepresent his or her age or
306 military service for the purpose of inducing a dealer or an
307 agent or employee of the dealer to sell, give, barter, furnish,
308 or deliver any tobacco product, or to purchase, or attempt to
309 purchase, any tobacco product from a person or a vending
310 machine. Any person under the minimum age for purchase 18 years
311 of age who violates a provision of this subsection commits a
312 noncriminal violation as provided in s. 775.08(3), punishable
313 by:
314 (a) For a first violation, 16 hours of community service
315 or, instead of community service, a $25 fine and, in addition,
316 the person must attend a school-approved anti-tobacco program,
317 if available;
318 (b) For a second violation within 12 weeks of the first
319 violation, a $25 fine; or
320 (c) For a third or subsequent violation within 12 weeks of
321 the first violation, the court must direct the Department of
322 Highway Safety and Motor Vehicles to withhold issuance of or
323 suspend or revoke the person’s driver license or driving
324 privilege, as provided in s. 322.056.
325
326 Any second or subsequent violation not within the 12-week time
327 period after the first violation is punishable as provided for a
328 first violation.
329 (3) Any person under the minimum age for purchase 18 years
330 of age cited for committing a noncriminal violation under this
331 section must sign and accept a civil citation indicating a
332 promise to appear before the county court or comply with the
333 requirement for paying the fine and must attend a school
334 approved anti-tobacco program, if locally available. If a fine
335 is assessed for a violation of this section, the fine must be
336 paid within 30 days after the date of the citation or, if a
337 court appearance is mandatory, within 30 days after the date of
338 the hearing.
339 (4) A person charged with a noncriminal violation under
340 this section must appear before the county court or comply with
341 the requirement for paying the fine. The court, after a hearing,
342 shall make a determination as to whether the noncriminal
343 violation was committed. If the court finds the violation was
344 committed, it shall impose an appropriate penalty as specified
345 in subsection (1) or subsection (2). A person who participates
346 in community service shall be considered an employee of the
347 state for the purpose of chapter 440, for the duration of such
348 service.
349 (5)(a) If a person under the minimum age for purchase 18
350 years of age is found by the court to have committed a
351 noncriminal violation under this section and that person has
352 failed to complete community service, pay the fine as required
353 by paragraph (1)(a) or paragraph (2)(a), or attend a school
354 approved anti-tobacco program, if locally available, the court
355 must direct the Department of Highway Safety and Motor Vehicles
356 to withhold issuance of or suspend the driver license or driving
357 privilege of that person for a period of 30 consecutive days.
358 (b) If a person under the minimum age for purchase 18 years
359 of age is found by the court to have committed a noncriminal
360 violation under this section and that person has failed to pay
361 the applicable fine as required by paragraph (1)(b) or paragraph
362 (2)(b), the court must direct the Department of Highway Safety
363 and Motor Vehicles to withhold issuance of or suspend the driver
364 license or driving privilege of that person for a period of 45
365 consecutive days.
366 (6) Eighty percent of all civil penalties received by a
367 county court pursuant to this section shall be remitted by the
368 clerk of the court to the Department of Revenue for transfer to
369 the Department of Education to provide for teacher training and
370 for research and evaluation to reduce and prevent the use of
371 tobacco products by children. The remaining 20 percent of civil
372 penalties received by a county court pursuant to this section
373 shall remain with the clerk of the county court to cover
374 administrative costs.
375 Section 11. Paragraph (b) of subsection (2) and subsection
376 (3) of section 569.12, Florida Statutes, are amended to read:
377 569.12 Jurisdiction; tobacco product enforcement officers
378 or agents; enforcement.—
379 (2)
380 (b) A tobacco product enforcement officer is authorized to
381 issue a citation to a person under the minimum age for purchase
382 of 18 when, based upon personal investigation, the officer has
383 reasonable cause to believe that the person has committed a
384 civil infraction in violation of s. 386.212 or s. 569.11.
385 (3) A correctional probation officer as defined in s.
386 943.10(3) is authorized to issue a citation to a person under
387 the minimum age for purchase of 18 when, based upon personal
388 investigation, the officer has reasonable cause to believe that
389 the person has committed a civil infraction in violation of s.
390 569.11.
391 Section 12. Section 569.14, Florida Statutes, is amended to
392 read:
393 569.14 Posting of a sign stating that the sale of tobacco
394 products to persons under the minimum age for purchase 18 years
395 of age is unlawful; enforcement; penalty.—
396 (1) A dealer that sells tobacco products shall post a clear
397 and conspicuous sign in each place of business where such
398 products are sold which substantially states the following:
399
400 THE SALE OF CIGARS TO PERSONS UNDER THE AGE OF 18, OR
401 ANY OTHER TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF
402 21, 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
403 REQUIRED FOR PURCHASE.
404
405 (2) A dealer that sells tobacco products and nicotine
406 products or nicotine dispensing devices, as defined in s.
407 877.112, may use a sign that substantially states the following:
408
409 THE SALE OF TOBACCO PRODUCTS (EXCLUDING CIGARS),
410 NICOTINE PRODUCTS, OR NICOTINE DISPENSING DEVICES TO
411 PERSONS UNDER THE AGE OF 21 18 IS AGAINST FLORIDA LAW.
412 THE SALE OF CIGARS TO PERSONS UNDER THE AGE OF 18 IS
413 AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR
414 PURCHASE.
415
416 A dealer that uses a sign as described in this subsection meets
417 the signage requirements of subsection (1) and s. 877.112.
418 (3) The division shall make available to dealers of tobacco
419 products signs that meet the requirements of subsection (1) or
420 subsection (2).
421 (4) Any dealer that sells tobacco products shall provide at
422 the checkout counter in a location clearly visible to the dealer
423 or the dealer’s agent or employee instructional material in a
424 calendar format or similar format to assist in determining
425 whether a person is of legal age to purchase tobacco products.
426 This point of sale material must contain substantially the
427 following language:
428
429 IF YOU WERE NOT BORN BEFORE THIS DATE
430 (insert date and applicable year)
431 YOU CANNOT BE SOLD ANY CIGARS.
432
433 IF YOU WERE NOT BORN BEFORE THIS DATE
434 (insert date and applicable year)
435 YOU CANNOT BE SOLD ANY OTHER BUY TOBACCO PRODUCTS.
436
437 Upon approval by the division, in lieu of a calendar a dealer
438 may use card readers, scanners, or other electronic or automated
439 systems that can verify whether a person is of legal age to
440 purchase tobacco products. Failure to comply with the provisions
441 contained in this subsection shall result in imposition of
442 administrative penalties as provided in s. 569.006.
443 (5) The division, through its agents and inspectors, shall
444 enforce this section.
445 (6) Any person who fails to comply with subsection (1) is
446 guilty of a misdemeanor of the second degree, punishable as
447 provided in s. 775.082 or s. 775.083.
448 Section 13. Subsections (3) and (4) of section 569.19,
449 Florida Statutes, are amended to read:
450 569.19 Annual report.—The division shall report annually
451 with written findings to the Legislature and the Governor by
452 December 31, on the progress of implementing the enforcement
453 provisions of this chapter. This must include, but is not
454 limited to:
455 (3) The number of violations for selling tobacco products
456 to persons under the minimum age for purchase 18, and the
457 results of administrative hearings on the above and related
458 issues.
459 (4) The number of persons under the minimum age for
460 purchase 18 cited for violations of s. 569.11 and sanctions
461 imposed as a result of citation.
462 Section 14. Section 877.112, Florida Statutes, is amended
463 to read:
464 877.112 Nicotine products and nicotine dispensing devices;
465 prohibitions for persons under 21 years of age minors;
466 penalties; civil fines; signage requirements; preemption.—
467 (1) DEFINITIONS.—As used in this section, the term:
468 (a) “Any person under 21 years of age” does not include any
469 person under the age of 21 who:
470 1. Is in the military reserve or on active duty in the
471 Armed Forces of the United States; or
472 2. Is acting in his or her scope of lawful employment with
473 an entity that sells, manufactures, or distributes nicotine
474 products or nicotine dispensing devices.
475 (b)(a) “Nicotine dispensing device” means any product that
476 employs an electronic, chemical, or mechanical means to produce
477 vapor from a nicotine product, including, but not limited to, an
478 electronic cigarette, electronic cigar, electronic cigarillo,
479 electronic pipe, or other similar device or product, any
480 replacement cartridge for such device, and any other container
481 of nicotine in a solution or other form intended to be used with
482 or within an electronic cigarette, electronic cigar, electronic
483 cigarillo, electronic pipe, or other similar device or product.
484 (c)(b) “Nicotine product” means any product that contains
485 nicotine, including liquid nicotine, that is intended for human
486 consumption, whether inhaled, chewed, absorbed, dissolved, or
487 ingested by any means, but does not include a:
488 1. Tobacco product, as defined in s. 569.002;
489 2. Product regulated as a drug or device by the United
490 States Food and Drug Administration under Chapter V of the
491 federal Food, Drug, and Cosmetic Act; or
492 3. Product that contains incidental nicotine.
493 (d)(c) “Self-service merchandising” means the open display
494 of nicotine products or nicotine dispensing devices, whether
495 packaged or otherwise, for direct retail customer access and
496 handling before purchase without the intervention or assistance
497 of the retailer or the retailer’s owner, employee, or agent. An
498 open display of such products and devices includes the use of an
499 open display unit.
500 (2) PROHIBITIONS ON SALE TO PERSONS UNDER 21 YEARS OF AGE
501 MINORS.—It is unlawful to sell, deliver, barter, furnish, or
502 give, directly or indirectly, to any person who is under 21 18
503 years of age, any nicotine product or a nicotine dispensing
504 device.
505 (3) PROHIBITIONS ON GIFTING SAMPLES TO PERSONS UNDER 21
506 YEARS OF AGE MINORS.—The gift of a sample nicotine product or
507 nicotine dispensing device to any person under the age of 21 18
508 by a retailer of nicotine products or nicotine dispensing
509 devices, or by an employee of such retailer, is prohibited.
510 (4) PENALTIES.—Any person who violates subsection (2) or
511 subsection (3) commits a misdemeanor of the second degree,
512 punishable as provided in s. 775.082 or s. 775.083. However, any
513 person who violates subsection (2) or subsection (3) for a
514 second or subsequent time within 1 year of the first violation
515 commits a misdemeanor of the first degree, punishable as
516 provided in s. 775.082 or s. 775.083.
517 (5) AFFIRMATIVE DEFENSES.—A person charged with a violation
518 of subsection (2) or subsection (3) has a complete defense if,
519 at the time the nicotine product or nicotine dispensing device
520 was sold, delivered, bartered, furnished, or given:
521 (a) The buyer or recipient falsely evidenced that she or he
522 was 21 18 years of age or older;
523 (b) The appearance of the buyer or recipient was such that
524 a prudent person would believe the buyer or recipient to be 21
525 18 years of age or older; and
526 (c) Such person carefully checked a driver license or an
527 identification card issued by this state or another state of the
528 United States, a passport, or a United States Armed Services
529 identification card presented by the buyer or recipient and
530 acted in good faith and in reliance upon the representation and
531 appearance of the buyer or recipient in the belief that the
532 buyer or recipient was 21 18 years of age or older.
533 (6) PROHIBITIONS ON POSSESSION OF NICOTINE PRODUCTS OR
534 NICOTINE DISPENSING DEVICES BY PERSONS UNDER 21 YEARS OF AGE
535 MINORS.—It is unlawful for any person under 21 18 years of age
536 to knowingly possess any nicotine product or a nicotine
537 dispensing device. Any person under 21 18 years of age who
538 violates this subsection commits a noncriminal violation as
539 defined in s. 775.08(3), punishable by:
540 (a) For a first violation, 16 hours of community service
541 or, instead of community service, a $25 fine. In addition, the
542 person must attend a school-approved anti-tobacco and nicotine
543 program, if locally available;
544 (b) For a second violation within 12 weeks of the first
545 violation, a $25 fine; or
546 (c) For a third or subsequent violation within 12 weeks of
547 the first violation, the court must direct the Department of
548 Highway Safety and Motor Vehicles to withhold issuance of or
549 suspend or revoke the person’s driver license or driving
550 privilege, as provided in s. 322.056.
551
552 Any second or subsequent violation not within the 12-week time
553 period after the first violation is punishable as provided for a
554 first violation.
555 (7) PROHIBITION ON MISREPRESENTING AGE.—It is unlawful for
556 any person under 21 18 years of age to misrepresent his or her
557 age or military service for the purpose of inducing a retailer
558 of nicotine products or nicotine dispensing devices or an agent
559 or employee of such retailer to sell, give, barter, furnish, or
560 deliver any nicotine product or nicotine dispensing device, or
561 to purchase, or attempt to purchase, any nicotine product or
562 nicotine dispensing device from a person or a vending machine.
563 Any person under 21 18 years of age who violates this subsection
564 commits a noncriminal violation as defined in s. 775.08(3),
565 punishable by:
566 (a) For a first violation, 16 hours of community service
567 or, instead of community service, a $25 fine and, in addition,
568 the person must attend a school-approved anti-tobacco and
569 nicotine program, if available;
570 (b) For a second violation within 12 weeks of the first
571 violation, a $25 fine; or
572 (c) For a third or subsequent violation within 12 weeks of
573 the first violation, the court must direct the Department of
574 Highway Safety and Motor Vehicles to withhold issuance of or
575 suspend or revoke the person’s driver license or driving
576 privilege, as provided in s. 322.056.
577
578 Any second or subsequent violation not within the 12-week time
579 period after the first violation is punishable as provided for a
580 first violation.
581 (8) PENALTIES FOR PERSONS UNDER 21 YEARS OF AGE MINORS.—
582 (a) A person under 21 18 years of age cited for committing
583 a noncriminal violation under this section must sign and accept
584 a civil citation indicating a promise to appear before the
585 county court or comply with the requirement for paying the fine
586 and must attend a school-approved anti-tobacco and nicotine
587 program, if locally available. If a fine is assessed for a
588 violation of this section, the fine must be paid within 30 days
589 after the date of the citation or, if a court appearance is
590 mandatory, within 30 days after the date of the hearing.
591 (b) A person charged with a noncriminal violation under
592 this section must appear before the county court or comply with
593 the requirement for paying the fine. The court, after a hearing,
594 shall make a determination as to whether the noncriminal
595 violation was committed. If the court finds the violation was
596 committed, it shall impose an appropriate penalty as specified
597 in subsection (6) or subsection (7). A person who participates
598 in community service shall be considered an employee of the
599 state for the purpose of chapter 440, for the duration of such
600 service.
601 (c) If a person under 21 18 years of age is found by the
602 court to have committed a noncriminal violation under this
603 section and that person has failed to complete community
604 service, pay the fine as required by paragraph (6)(a) or
605 paragraph (7)(a), or attend a school-approved anti-tobacco and
606 nicotine program, if locally available, the court must direct
607 the Department of Highway Safety and Motor Vehicles to withhold
608 issuance of or suspend the driver license or driving privilege
609 of that person for 30 consecutive days.
610 (d) If a person under 21 18 years of age is found by the
611 court to have committed a noncriminal violation under this
612 section and that person has failed to pay the applicable fine as
613 required by paragraph (6)(b) or paragraph (7)(b), the court must
614 direct the Department of Highway Safety and Motor Vehicles to
615 withhold issuance of or suspend the driver license or driving
616 privilege of that person for 45 consecutive days.
617 (9) DISTRIBUTION OF CIVIL FINES.—Eighty percent of all
618 civil penalties received by a county court pursuant to
619 subsections (6) and (7) shall be remitted by the clerk of the
620 court to the Department of Revenue for transfer to the
621 Department of Education to provide for teacher training and for
622 research and evaluation to reduce and prevent the use of tobacco
623 products, nicotine products, or nicotine dispensing devices by
624 children. The remaining 20 percent of civil penalties received
625 by a county court pursuant to this section shall remain with the
626 clerk of the county court to cover administrative costs.
627 (10) SIGNAGE REQUIREMENTS FOR RETAILERS OF NICOTINE
628 PRODUCTS AND NICOTINE DISPENSING DEVICES.—
629 (a) Any retailer that sells nicotine products or nicotine
630 dispensing devices shall post a clear and conspicuous sign in
631 each place of business where such products are sold which
632 substantially states the following:
633
634 THE SALE OF NICOTINE PRODUCTS OR NICOTINE DISPENSING
635 DEVICES TO PERSONS UNDER THE AGE OF 21 18 IS AGAINST
636 FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
637
638 (b) A retailer that sells nicotine products or nicotine
639 dispensing devices shall provide at the checkout counter in a
640 location clearly visible to the retailer or the retailer’s agent
641 or employee instructional material in a calendar format or
642 similar format to assist in determining whether a person is of
643 legal age to purchase nicotine products or nicotine dispensing
644 devices. This point of sale material must contain substantially
645 the following language:
646
647 IF YOU WERE NOT BORN BEFORE THIS DATE
648 (insert date and applicable year)
649 YOU CANNOT BUY NICOTINE PRODUCTS OR
650 NICOTINE DISPENSING DEVICES.
651
652 In lieu of a calendar a retailer may use card readers, scanners,
653 or other electronic or automated systems that can verify whether
654 a person is of legal age to purchase nicotine products or
655 nicotine dispensing devices.
656 (11) SELF-SERVICE MERCHANDISING PROHIBITED.—
657 (a) A retailer that sells nicotine products or nicotine
658 dispensing devices may not sell, permit to be sold, offer for
659 sale, or display for sale such products or devices by means of
660 self-service merchandising.
661 (b) A retailer that sells nicotine products or nicotine
662 dispensing devices may not place such products or devices in an
663 open display unit unless the unit is located in an area that is
664 inaccessible to customers.
665 (c) Paragraphs (a) and (b) do not apply to an establishment
666 that prohibits persons under 21 18 years of age on the premises.
667 (12) RESTRICTIONS ON SALE OR DELIVERY OF NICOTINE PRODUCTS
668 OR NICOTINE DISPENSING DEVICES.—
669 (a) In order to prevent persons under 21 18 years of age
670 from purchasing or receiving nicotine products or nicotine
671 dispensing devices, the sale or delivery of such products or
672 devices is prohibited, except:
673 1. When under the direct control, or line of sight where
674 effective control may be reasonably maintained, of the retailer
675 of nicotine products or nicotine dispensing devices or such
676 retailer’s agent or employee; or
677 2. Sales from a vending machine are prohibited under
678 subparagraph 1. and are only permissible from a machine that is
679 equipped with an operational lockout device which is under the
680 control of the retailer of nicotine products or nicotine
681 dispensing devices or such retailer’s agent or employee who
682 directly regulates the sale of items through the machine by
683 triggering the lockout device to allow the dispensing of one
684 nicotine product or nicotine dispensing device. The lockout
685 device must include a mechanism to prevent the machine from
686 functioning, if the power source for the lockout device fails or
687 if the lockout device is disabled, and a mechanism to ensure
688 that only one nicotine product or nicotine dispensing device is
689 dispensed at a time.
690 (b) Paragraph (a) does not apply to an establishment that
691 prohibits persons under 21 18 years of age on the premises.
692 (c) A retailer of nicotine products or nicotine dispensing
693 devices or such retailer’s agent or employee may require proof
694 of age of a purchaser of such products or devices before selling
695 the product or device to that person.
696 Section 15. This act shall take effect October 1, 2019.
697
698 ================= T I T L E A M E N D M E N T ================
699 And the title is amended as follows:
700 Delete everything before the enacting clause
701 and insert:
702 A bill to be entitled
703 An act relating to the tobacco and nicotine products;
704 providing a short title; creating s. 163.085, F.S.;
705 defining terms; preempting the establishment of the
706 minimum age for the sale or delivery of tobacco
707 products, nicotine products, or nicotine dispensing
708 devices to the state; providing exceptions; amending
709 s. 210.095, F.S.; deleting the definition of the term
710 “adult”; defining the term “the minimum age for
711 purchase”; conforming provisions to changes made by
712 the act; amending s. 386.212, F.S.; revising the age
713 under which it is unlawful to smoke in, on, or near
714 school property; amending s. 569.002, F.S.; defining
715 the terms “the minimum age for purchase” and “any
716 person under the minimum age for purchase”; replacing
717 the term “any person under the age of 18” with “any
718 person under the minimum age for purchase”; amending
719 s. 569.007, F.S.; providing that it is unlawful to
720 sell or deliver tobacco products to persons under the
721 minimum age for purchase; providing an exception;
722 amending s. 569.0075, F.S.; revising the age under
723 which the gift of tobacco products to a person by
724 certain entities is prohibited; amending s. 569.008,
725 F.S.; revising legislative intent to reflect that the
726 Legislature intends to prevent the sale of certain
727 tobacco products to persons under a specified age;
728 conforming provisions to changes made by the act;
729 amending s. 569.101, F.S.; revising the age limitation
730 that applies to the sale, delivery, bartering,
731 furnishing, or giving of certain tobacco products;
732 conforming provisions to changes made by the act;
733 amending s. 569.11, F.S.; revising the age limitation
734 that applies to possessing tobacco products; revising
735 the age limitation that applies to unlawful
736 misrepresentation of age or military service for
737 certain purposes; conforming provisions to changes
738 made by the act; amending ss. 569.12, 569.14, and
739 569.19, F.S.; conforming provisions to changes made by
740 the act; amending s. 877.112, F.S.; defining the term
741 “any person under 21 years of age”; revising the age
742 limitations relating to nicotine products and nicotine
743 dispensing devices; conforming provisions to changes
744 made by the act; providing an effective date.