Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1080
       
       
       
       
       
       
                                Ì413936;Î413936                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/24/2021           .                                
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       The Committee on Health Policy (Hutson) recommended the
       following:
       
    1         Senate Substitute for Amendment (363164) (with title
    2  amendment)
    3  
    4         Delete lines 265 - 653
    5  and insert:
    6         Section 7. Section 569.0025, Florida Statutes, is created
    7  to read:
    8         569.0025Preemption.—The establishment of the minimum age
    9  for purchasing or possessing, and the regulation for the
   10  marketing, sale, or delivery of, tobacco products is preempted
   11  to the state.
   12         Section 8. Paragraph (c) of subsection (1) of section
   13  569.003, Florida Statutes, is amended to read:
   14         569.003 Retail tobacco products dealer permits;
   15  application; qualifications; fees; renewal; duplicates.—
   16         (1)
   17         (c) Permits shall be issued annually, upon payment of the
   18  annual permit fee prescribed by the division. The division shall
   19  fix the fee in an amount sufficient to meet the costs incurred
   20  by it in carrying out its permitting, enforcement, and
   21  administrative responsibilities under this part chapter, but the
   22  fee may not exceed $50. The proceeds of the fee shall be
   23  deposited into the Alcoholic Beverage and Tobacco Trust Fund.
   24         Section 9. Section 569.004, Florida Statutes, is amended to
   25  read:
   26         569.004 Consent to inspection and search without warrant.
   27  An applicant for a permit, by accepting the permit when issued,
   28  agrees that the place or premises covered by the permit is
   29  subject to inspection and search without a search warrant by the
   30  division or its authorized assistants, and by sheriffs, deputy
   31  sheriffs, or police officers, to determine compliance with this
   32  chapter, including part II of this chapter if the applicant
   33  deals, at retail, in nicotine products within the state or
   34  allows a nicotine products vending machine to be located on its
   35  premises within the state.
   36         Section 10. Section 569.006, Florida Statutes, is amended
   37  to read:
   38         569.006 Retail tobacco products dealers; administrative
   39  penalties.—The division may suspend or revoke the permit of the
   40  dealer upon sufficient cause appearing of the violation of any
   41  of the provisions of this chapter, including part II of this
   42  chapter if the dealer deals, at retail, in nicotine products
   43  within the state or allows a nicotine products vending machine
   44  to be located on its premises within the state, by a dealer or
   45  by a dealer’s agent or employee. The division may also assess
   46  and accept administrative fines of up to $1,000 against a dealer
   47  for each violation. The division shall deposit all fines
   48  collected into the General Revenue Fund as collected. An order
   49  imposing an administrative fine becomes effective 15 days after
   50  the date of the order. The division may suspend the imposition
   51  of a penalty against a dealer, conditioned upon the dealer’s
   52  compliance with terms the division considers appropriate.
   53         Section 11. Subsections (1) and (2) of section 569.007,
   54  Florida Statutes, are amended to read:
   55         569.007 Sale or delivery of tobacco products;
   56  restrictions.—
   57         (1) In order to prevent persons under 21 18 years of age
   58  from purchasing or receiving tobacco products, the sale or
   59  delivery of tobacco products is prohibited, except:
   60         (a) When under the direct control or line of sight of the
   61  dealer or the dealer’s agent or employee; or
   62         (b) Sales from a vending machine are prohibited under the
   63  provisions of paragraph (1)(a) and are only permissible from a
   64  machine that is equipped with an operational lockout device
   65  which is under the control of the dealer or the dealer’s agent
   66  or employee who directly regulates the sale of items through the
   67  machine by triggering the lockout device to allow the dispensing
   68  of one tobacco product. The lockout device must include a
   69  mechanism to prevent the machine from functioning if the power
   70  source for the lockout device fails or if the lockout device is
   71  disabled, and a mechanism to ensure that only one tobacco
   72  product is dispensed at a time.
   73         (2) The provisions of subsection (1) shall not apply to an
   74  establishment that prohibits persons under 21 18 years of age on
   75  the licensed premises.
   76         Section 12. Section 569.0075, Florida Statutes, is amended
   77  to read:
   78         569.0075 Gift of sample tobacco products prohibited.—The
   79  gift of sample tobacco products to any person under the age of
   80  21 18 by an entity licensed or permitted under the provisions of
   81  chapter 210 or this part chapter, or by an employee of such
   82  entity, is prohibited and is punishable as provided in s.
   83  569.101.
   84         Section 13. Subsection (1), paragraphs (b) and (c) of
   85  subsection (2), and subsection (3) of section 569.008, Florida
   86  Statutes, are amended to read:
   87         569.008 Responsible retail tobacco products dealers;
   88  qualifications; mitigation of disciplinary penalties; diligent
   89  management and supervision; presumption.—
   90         (1) The Legislature intends to prevent the sale of tobacco
   91  products to persons under 21 18 years of age and to encourage
   92  retail tobacco products dealers to comply with responsible
   93  practices in accordance with this section.
   94         (2) To qualify as a responsible retail tobacco products
   95  dealer, the dealer must establish and implement procedures
   96  designed to ensure that the dealer’s employees comply with the
   97  provisions of this part chapter. The dealer must provide a
   98  training program for the dealer’s employees which addresses the
   99  use and sale of tobacco products and which includes at least the
  100  following topics:
  101         (b) Methods of recognizing and handling customers under 21
  102  18 years of age.
  103         (c) Procedures for proper examination of identification
  104  cards in order to verify that customers are not under 21 18
  105  years of age.
  106         (3) In determining penalties under s. 569.006, the division
  107  may mitigate penalties imposed against a dealer because of an
  108  employee’s illegal sale of a tobacco product to a person under
  109  21 18 years of age if the following conditions are met:
  110         (a) The dealer is qualified as a responsible dealer under
  111  this section.
  112         (b) The dealer provided the training program required under
  113  subsection (2) to that employee before the illegal sale
  114  occurred.
  115         (c) The dealer had no knowledge of that employee’s
  116  violation at the time of the violation and did not direct,
  117  approve, or participate in the violation.
  118         (d) If the sale was made through a vending machine, the
  119  machine was equipped with an operational lock-out device.
  120         Section 14. Section 569.009, Florida Statutes, is amended
  121  to read:
  122         569.009 Rulemaking authority.—The division shall adopt any
  123  rules necessary to administer and enforce the provisions of this
  124  part chapter.
  125         Section 15. Section 569.101, Florida Statutes, is amended
  126  to read:
  127         569.101 Selling, delivering, bartering, furnishing, or
  128  giving tobacco products to persons under 21 18 years of age;
  129  criminal penalties; defense.—
  130         (1) It is unlawful to sell, deliver, barter, furnish, or
  131  give, directly or indirectly, to any person who is under 21 18
  132  years of age, any tobacco product.
  133         (2) Any person who violates subsection (1) commits a
  134  misdemeanor of the second degree, punishable as provided in s.
  135  775.082 or s. 775.083. However, any person who violates
  136  subsection (1) for a second or subsequent time within 1 year of
  137  the first violation, commits a misdemeanor of the first degree,
  138  punishable as provided in s. 775.082 or s. 775.083.
  139         (3) A person charged with a violation of subsection (1) has
  140  a complete defense if, at the time the tobacco product was sold,
  141  delivered, bartered, furnished, or given:
  142         (a) The buyer or recipient falsely evidenced that she or he
  143  was 21 18 years of age or older;
  144         (b) The appearance of the buyer or recipient was such that
  145  a prudent person would believe the buyer or recipient to be 21
  146  18 years of age or older; and
  147         (c) Such person carefully checked a driver license or an
  148  identification card issued by this state or another state of the
  149  United States, a passport, or a United States armed services
  150  identification card presented by the buyer or recipient and
  151  acted in good faith and in reliance upon the representation and
  152  appearance of the buyer or recipient in the belief that the
  153  buyer or recipient was 21 18 years of age or older.
  154         Section 16. Section 569.11, Florida Statutes, is amended to
  155  read:
  156         569.11 Possession, misrepresenting age or military service
  157  to purchase, and purchase of tobacco products by persons under
  158  21 18 years of age prohibited; penalties; jurisdiction;
  159  disposition of fines.—
  160         (1) It is unlawful for any person under 21 18 years of age
  161  to knowingly possess any tobacco product. Any person under 21 18
  162  years of age who violates this subsection commits a noncriminal
  163  violation as provided in s. 775.08(3), punishable by:
  164         (a) For a first violation, 16 hours of community service
  165  or, instead of community service, a $25 fine. In addition, the
  166  person must attend a school-approved anti-tobacco program, if
  167  locally available; or
  168         (b) For a second or subsequent violation within 12 weeks
  169  after the first violation, a $25 fine.
  170  
  171  Any second or subsequent violation not within the 12-week period
  172  after the first violation is punishable as provided for a first
  173  violation.
  174         (2) It is unlawful for any person under 21 18 years of age
  175  to misrepresent his or her age or military service for the
  176  purpose of inducing a dealer or an agent or employee of the
  177  dealer to sell, give, barter, furnish, or deliver any tobacco
  178  product, or to purchase, or attempt to purchase, any tobacco
  179  product from a person or a vending machine. Any person under 21
  180  18 years of age who violates this subsection commits a
  181  noncriminal violation as provided in s. 775.08(3), punishable
  182  by:
  183         (a) For a first violation, 16 hours of community service
  184  or, instead of community service, a $25 fine and, in addition,
  185  the person must attend a school-approved anti-tobacco program,
  186  if available; or
  187         (b) For a second or subsequent violation within 12 weeks
  188  after the first violation, a $25 fine.
  189  
  190  Any second or subsequent violation not within the 12-week period
  191  after the first violation is punishable as provided for a first
  192  violation.
  193         (3) Any person under 21 18 years of age cited for
  194  committing a noncriminal violation under this section must sign
  195  and accept a civil citation indicating a promise to appear
  196  before the county court or comply with the requirement for
  197  paying the fine and must attend a school-approved anti-tobacco
  198  program, if locally available. If a fine is assessed for a
  199  violation of this section, the fine must be paid within 30 days
  200  after the date of the citation or, if a court appearance is
  201  mandatory, within 30 days after the date of the hearing.
  202         (4) A person charged with a noncriminal violation under
  203  this section must appear before the county court or comply with
  204  the requirement for paying the fine. The court, after a hearing,
  205  shall make a determination as to whether the noncriminal
  206  violation was committed. If the court finds the violation was
  207  committed, it shall impose an appropriate penalty as specified
  208  in subsection (1) or subsection (2). A person who participates
  209  in community service shall be considered an employee of the
  210  state for the purpose of chapter 440, for the duration of such
  211  service.
  212         (5)(a) If a person under 21 18 years of age is found by the
  213  court to have committed a noncriminal violation under this
  214  section and that person has failed to complete community
  215  service, pay the fine as required by paragraph (1)(a) or
  216  paragraph (2)(a), or attend a school-approved anti-tobacco
  217  program, if locally available, the court may direct the
  218  Department of Highway Safety and Motor Vehicles to withhold
  219  issuance of or suspend the driver license or driving privilege
  220  of that person for a period of 30 consecutive days.
  221         (b) If a person under 21 18 years of age is found by the
  222  court to have committed a noncriminal violation under this
  223  section and that person has failed to pay the applicable fine as
  224  required by paragraph (1)(b) or paragraph (2)(b), the court may
  225  direct the Department of Highway Safety and Motor Vehicles to
  226  withhold issuance of or suspend the driver license or driving
  227  privilege of that person for a period of 45 consecutive days.
  228         (6) Eighty percent of all civil penalties received by a
  229  county court pursuant to this section shall be remitted by the
  230  clerk of the court to the Department of Revenue for transfer to
  231  the Department of Education to provide for teacher training and
  232  for research and evaluation to reduce and prevent the use of
  233  tobacco products by children. The remaining 20 percent of civil
  234  penalties received by a county court pursuant to this section
  235  shall remain with the clerk of the county court to cover
  236  administrative costs.
  237         Section 17. Section 569.12, Florida Statutes, is amended to
  238  read:
  239         569.12 Jurisdiction; tobacco product and nicotine product
  240  enforcement officers or agents; enforcement.—
  241         (1) In addition to the Division of Alcoholic Beverages and
  242  Tobacco of the Department of Business and Professional
  243  Regulation, any law enforcement officer certified under s.
  244  943.10(1), (6), or (8) shall enforce the provisions of this
  245  chapter.
  246         (2)(a) A county or municipality may designate certain of
  247  its employees or agents as tobacco product and nicotine product
  248  enforcement officers. The training and qualifications of the
  249  employees or agents for such designation shall be determined by
  250  the county or the municipality. Nothing in this section shall be
  251  construed to permit the carrying of firearms or other weapons by
  252  a tobacco product and nicotine product enforcement agent, nor
  253  does designation as a tobacco product and nicotine product
  254  enforcement officer provide the employee or agent with the power
  255  of arrest or subject the employee or agent to the provisions of
  256  ss. 943.085-943.255. Nothing in this section amends, alters, or
  257  contravenes the provisions of any state-administered retirement
  258  system or any state-supported retirement system established by
  259  general law.
  260         (b) A tobacco and nicotine product enforcement officer is
  261  authorized to issue a citation to a person under the age of 21
  262  18 when, based upon personal investigation, the officer has
  263  reasonable cause to believe that the person has committed a
  264  civil infraction in violation of s. 386.212, or s. 569.11, or s.
  265  569.42.
  266         (3) A correctional probation officer as defined in s.
  267  943.10(3) is authorized to issue a citation to a person under
  268  the age of 21 18 when, based upon personal investigation, the
  269  officer has reasonable cause to believe that the person has
  270  committed a civil infraction in violation of s. 569.11 or s.
  271  569.42.
  272         (4) A citation issued to any person violating the
  273  provisions of s. 569.11 or s. 569.42 shall be in a form
  274  prescribed by the Division of Alcoholic Beverages and Tobacco of
  275  the Department of Business and Professional Regulation and shall
  276  contain:
  277         (a) The date and time of issuance.
  278         (b) The name and address of the person to whom the citation
  279  is issued.
  280         (c) The date and time the civil infraction was committed.
  281         (d) The facts constituting reasonable cause.
  282         (e) The number of the Florida statute violated.
  283         (f) The name and authority of the citing officer.
  284         (g) The procedure for the person to follow in order to
  285  contest the citation, perform the required community service,
  286  attend the required anti-tobacco or anti-tobacco and anti
  287  nicotine program, or to pay the civil penalty.
  288         Section 18. Section 569.14, Florida Statutes, is amended to
  289  read:
  290         569.14 Posting of a sign stating that the sale of tobacco
  291  products or nicotine products to persons under 21 18 years of
  292  age is unlawful; enforcement; penalty.—
  293         (1) A dealer that sells tobacco products shall post a clear
  294  and conspicuous sign in each place of business where such
  295  products are sold which substantially states the following:
  296  
  297         THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
  298         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  299         REQUIRED FOR PURCHASE.
  300  
  301         (2) A dealer that sells tobacco products and nicotine
  302  products or nicotine dispensing devices, as defined in s.
  303  877.112, may use a sign that substantially states the following:
  304  
  305         THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
  306         NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
  307         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  308         REQUIRED FOR PURCHASE.
  309  
  310  A dealer that uses a sign as described in this subsection meets
  311  the signage requirements of subsection (1) and s. 569.43(1) s.
  312  877.112.
  313         (3) The division shall make available to dealers of tobacco
  314  products signs that meet the requirements of subsection (1) or
  315  subsection (2).
  316         (4) Any dealer that sells tobacco products shall provide at
  317  the checkout counter in a location clearly visible to the dealer
  318  or the dealer’s agent or employee instructional material in a
  319  calendar format or similar format to assist in determining
  320  whether a person is of legal age to purchase tobacco products.
  321  This point of sale material must contain substantially the
  322  following language:
  323  
  324                IF YOU WERE NOT BORN BEFORE THIS DATE              
  325                  (insert date and applicable year)                
  326         YOU CANNOT BUY TOBACCO PRODUCTS, NICOTINE PRODUCTS,       
  327                   OR NICOTINE DISPENSING DEVICES.                 
  328  
  329  Upon approval by the division, in lieu of a calendar a dealer
  330  may use card readers, scanners, or other electronic or automated
  331  systems that can verify whether a person is of legal age to
  332  purchase tobacco products. Failure to comply with the provisions
  333  contained in this subsection shall result in imposition of
  334  administrative penalties as provided in s. 569.006.
  335         (5) The division, through its agents and inspectors, shall
  336  enforce this section.
  337         (6) Any person who fails to comply with subsection (1) is
  338  guilty of a misdemeanor of the second degree, punishable as
  339  provided in s. 775.082 or s. 775.083.
  340         Section 19. Section 569.19, Florida Statutes, is amended to
  341  read:
  342         569.19 Annual report.—The division shall report annually
  343  with written findings to the Legislature and the Governor by
  344  December 31, on the progress of implementing the enforcement
  345  provisions of this part chapter. This must include, but is not
  346  limited to:
  347         (1) The number and results of compliance visits.
  348         (2) The number of violations for failure of a retailer to
  349  hold a valid license.
  350         (3) The number of violations for selling tobacco products
  351  to persons under age 21 18, and the results of administrative
  352  hearings on the above and related issues.
  353         (4) The number of persons under age 21 18 cited for
  354  violations of s. 569.11 and sanctions imposed as a result of
  355  citation.
  356         Section 20. Section 569.31, Florida Statutes, is created to
  357  read:
  358         569.31Definitions.—As used in this part, the term:
  359         (1)“Dealer” is synonymous with the term “retail nicotine
  360  products dealer.”
  361         (2)“Division” means the Division of Alcoholic Beverages
  362  and Tobacco of the Department of Business and Professional
  363  Regulation.
  364         (3)“Nicotine dispensing device” means any product that
  365  employs an electronic, chemical, or mechanical means to produce
  366  vapor or aerosol from a nicotine product, including, but not
  367  limited to, an electronic cigarette, electronic cigar,
  368  electronic cigarillo, electronic pipe, or other similar device
  369  or product, any replacement cartridge for such device, and any
  370  other container of nicotine in a solution or other form intended
  371  to be used with or within an electronic cigarette, electronic
  372  cigar, electronic cigarillo, electronic pipe, or other similar
  373  device or product.
  374         (4)“Nicotine product” means any product that contains
  375  nicotine, including liquid nicotine, which is intended for human
  376  consumption, whether inhaled, chewed, absorbed, dissolved, or
  377  ingested by any means. The term also includes any nicotine
  378  dispensing device. The term does not include a:
  379         (a)Tobacco product, as defined in s. 569.002;
  380         (b)Product regulated as a drug or device by the United
  381  States Food and Drug Administration under Chapter V of the
  382  Federal Food, Drug, and Cosmetic Act; or
  383         (c)Product that contains incidental nicotine.
  384         (5)“Permit” is synonymous with the term “retail nicotine
  385  products dealer permit.”
  386         (6)“Retail nicotine products dealer” means the holder of a
  387  retail nicotine products dealer permit.
  388         (7)“Retail nicotine products dealer permit” means a permit
  389  issued by the division under s. 569.32.
  390         (8)“Self-service merchandising” means the open display of
  391  nicotine products, whether packaged or otherwise, for direct
  392  retail customer access and handling before purchase without the
  393  intervention or assistance of the dealer or the dealer’s owner,
  394  employee, or agent. An open display of such products and devices
  395  includes the use of an open display unit.
  396         (9)“Any person under the age of 21” does not include any
  397  person under the age of 21 who:
  398         (a)Is in the military reserve or on active duty in the
  399  Armed Forces of the United States; or
  400         (b)Is acting in his or her scope of lawful employment.
  401         Section 21. Section 569.315, Florida Statutes, is created
  402  to read:
  403         569.315Preemption.—The establishment of the minimum age
  404  for purchasing or possessing, and the regulation for the
  405  marketing, sale, or delivery of, nicotine products is preempted
  406  to the state.
  407  
  408  ================= T I T L E  A M E N D M E N T ================
  409  And the title is amended as follows:
  410         Delete lines 18 - 42
  411  and insert:
  412         creating s. 569.0025, F.S.; preempting the
  413         establishment of the minimum age for purchasing and
  414         possessing, and the regulation for the marketing,
  415         sale, or delivery of, tobacco products to the state;
  416         amending ss. 569.003, 569.004, and 569.006, F.S.;
  417         conforming provisions to changes made by the act;
  418         amending s. 569.007, F.S.; revising age limitations
  419         relating to the sale and delivery of tobacco products;
  420         revising applicability; amending s. 569.0075, F.S.;
  421         revising age limitations relating to gifting sample
  422         tobacco products; amending s. 569.008, F.S.; revising
  423         legislative intent; revising qualification
  424         requirements for responsible retail tobacco products
  425         dealers; conforming provisions to changes made by the
  426         act; amending s. 569.009, F.S.; conforming a provision
  427         to changes made by the act; amending s. 569.101, F.S.;
  428         revising age limitations relating to selling,
  429         delivering, bartering, furnishing, or giving tobacco
  430         products to certain persons; amending s. 569.11, F.S.;
  431         revising age limitations relating to possessing and
  432         obtaining tobacco products; amending s. 569.12, F.S.;
  433         expanding the authority of tobacco product enforcement
  434         officers to include nicotine products; amending s.
  435         569.14, F.S.; revising requirements for signage
  436         relating to tobacco products, nicotine products, and
  437         nicotine dispensing devices; conforming provisions to
  438         changes made by the act; amending s. 569.19, F.S.;
  439         conforming provisions to changes made by the act;
  440         creating s. 569.31, F.S.; defining terms; creating s.
  441         569.315, F.S.; preempting the establishment of the
  442         minimum age for purchasing and possessing, and the
  443         regulation for the marketing, sale, or delivery of,
  444         nicotine products to the state; creating s.