Florida Senate - 2021                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 1080
       
       
       
       
       
       
                                Ì465114|Î465114                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                                       .                                
                                       .                                
                                       .                                
                Floor: 2/AD/2R         .                                
             04/22/2021 11:12 AM       .                                
       —————————————————————————————————————————————————————————————————




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