The Florida Senate

210.185  Prohibition on sale or distribution of cigarettes; criminal penalties; administrative sanctions; applicability.--

(1)  PROHIBITIONS.--It is unlawful for any person:

(a)  To sell or distribute in this state; to acquire, hold, own, possess, or transport, for sale or distribution in this state; or to import, or cause to be imported, into this state for sale or distribution in this state:

1.  Any cigarettes the package of which:

a.  Bears any statement, label, stamp, sticker, or notice indicating that the manufacturer did not intend the cigarettes to be sold, distributed, or used in the United States, including but not limited to labels stating "For Export Only," "U.S. Tax-Exempt," "For Use Outside U.S.," or similar wording; or

b.  Does not comply with:

(I)  All requirements imposed by or under federal law regarding warnings and other information on packages of cigarettes manufactured, packaged, or imported for sale, distribution, or use in the United States, including but not limited to the precise warning labels specified in the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. s. 1333; and

(II)  All federal trademark and copyright laws;

2.  Any cigarettes imported into the United States in violation of 26 U.S.C. s. 5754 or any other federal law, or implementing federal regulations;

3.  Any cigarettes that a person otherwise knows or has reason to know the manufacturer did not intend to be sold, distributed, or used in the United States; or

4.  Any cigarettes for which there has not been submitted to the Secretary of the United States Department of Health and Human Services the list or lists of the ingredients added to tobacco in the manufacture of those cigarettes required by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. s. 1335a;

(b)  To alter the package of any cigarettes, before sale or distribution to the ultimate consumer, so as to remove, conceal, or obscure any statement, label, stamp, sticker, or notice described in sub-subparagraph (a)1.a. or any health warning that is not specified in or does not conform with the requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. s. 1333;

(c)  To affix any stamp required under this part to the package of any cigarettes described in paragraph (a) or altered in violation of paragraph (b).

(2)  DOCUMENTATION.--On or before the 10th day of each month, each person permitted to affix the tax stamp to cigarettes shall file with the division, for all cigarettes imported into the United States to which the person has affixed the tax stamp in the preceding month, a copy of the permit issued under the Internal Revenue Code, 26 U.S.C. s. 5713, to the person importing the cigarettes into the United States which allows that person to import those cigarettes; a copy of the customs form containing, with respect to the cigarettes, the internal revenue tax information required by the United States Bureau of Alcohol, Tobacco and Firearms; and a statement, signed by an officer of the manufacturer or importer under penalty of perjury, certifying that the manufacturer or importer has complied with the package health warning and ingredient reporting requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. ss. 1333 and 1335a, with respect to those cigarettes.

(3)  CRIMINAL PENALTIES.--Any person who violates subsection (1), either knowing or having reason to know he or she is doing so, or who fails to comply with subsection (2), commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084

(4)  ADMINISTRATIVE SANCTIONS.--

(a)  The division may revoke or suspend the permit of any distributing agent or wholesale dealer, or the retail tobacco dealer permit of any retailer, and impose on the permittee a civil penalty, in an amount not to exceed the greater of 500 percent of the retail value of the cigarettes involved or $5,000, upon finding a violation of this section or any implementing rule adopted by the division.

(b)  Cigarettes that are acquired, held, owned, possessed, transported in, imported into, or sold or distributed in this state in violation of this section are considered contraband and are subject to seizure and forfeiture under this part. Any cigarettes so seized and forfeited shall be destroyed. The cigarettes are considered contraband whether the violation of this section is knowing or otherwise.

(5)  UNFAIR TRADE PRACTICES.--A violation of subsection (1) or subsection (2) constitutes an unlawful trade practice under part II of chapter 501 and, in addition to any remedies or penalties set forth in this section is subject to any remedies or penalties available for a violation of that part.

(6)  GENERAL PROVISIONS.--

(a)  The division shall enforce this section. However, at the request of the division, any law enforcement agency shall enforce this section.

(b)  For the purpose of enforcing this act, the division and any agency to which the division has delegated enforcement responsibility may request information from any state or local agency, and may share information with, and request information from, any federal agency or any agency of any other state or any local agency thereof.

(c)  In addition to any other remedy provided by law, including enforcement as provided in paragraph (a), any person may bring an action for appropriate injunctive or other equitable relief for a violation of this section; for actual damages, if any, sustained by reason of the violation; and, as determined by the court, for interest on the damages from the date of the complaint, taxable costs, and reasonable attorney's fees. If the trier of fact finds that the violation is flagrant, it may increase recovery to an amount not in excess of 3 times the actual damages sustained by reason of the violation.

(7)  DEFINITIONS.--As used in this section, the term:

(a)  "Cigarette" means:

1.  Any roll of tobacco wrapped in paper or tobacco leaf or in any substance not containing tobacco, including a bidi, kretek, or other similar product, which is to be burned;

2.  Any roll of tobacco wrapped in any substance containing tobacco, including a bidi, kretek, or other similar product, which, because of its appearance, the type of tobacco used in the filler, or its packaging or labeling is likely to be offered to or purchased by consumers as a cigarette described in subparagraph 1.; or

3.  Loose rolling tobacco that, because of its appearance, type, packaging, or labeling, is likely to be offered to or purchased by consumers as tobacco for making cigarettes.

(b)  "Importer" means "importer" as that term is defined in 26 U.S.C. s. 5702(l).

(c)  "Package" means "package" as that term is defined in 15 U.S.C. s. 1332(4).

(8)  APPLICABILITY.--

(a)  This section does not apply to cigarettes allowed to be imported or brought into the United States for personal use and cigarettes sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with 19 U.S.C. s. 1555(b) and any implementing regulations, but this section does apply to any such cigarettes that are brought back into the customs territory for resale within the customs territory.

(b)  The penalties provided in this section are in addition to any penalties imposed under any other law.

History.--s. 2, ch. 2000-251.