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House Bill 0845

Florida House of Representatives - 1997 HB 845 By Representatives Morroni and Saunders 1 A bill to be entitled 2 An act relating to tobacco products; 3 redesignating chapter 569, F.S., as "Tobacco 4 Products"; amending and renumbering s. 859.06, 5 F.S., to clarify language; amending s. 569.002, 6 F.S.; revising definition language to exclude 7 certain classes of persons from definition of 8 "under age 18"; creating s. 569.11, F.S.; 9 making it unlawful for any person under age 18 10 to misrepresent age or military service to 11 acquire, purchase, or knowingly possess any 12 tobacco product and providing for civil 13 citation and imposition of sanctions by court; 14 providing for the disposition of fines; 15 creating s. 569.12, F.S.; providing for 16 enforcement and local tobacco product 17 enforcement officers; providing necessary 18 information for civil citation form; amending 19 ss. 569.003, 569.004, and 569.006, F.S.; 20 clarifying language; renumbering and amending 21 s. 859.061, F.S., relating to posting of signs 22 to conform and clarify language; repealing s. 23 859.058, F.S., relating to clove cigarettes; 24 amending s. 569.007, F.S.; providing an 25 additional exemption from the prohibition 26 against sale or delivery of tobacco products, 27 through vending machines; amending s. 569.008, 28 F.S.; conforming and clarifying language 29 relating to responsible tobacco product 30 dealers; amending s. 569.009, F.S.; conforming 31 and clarifying language relating to rulemaking 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 authority; amending s. 322.056, F.S.; providing 2 for mandatory revocation or suspension of, or 3 delay of eligibility for, drivers' licenses for 4 persons under age 18 who commit noncriminal 5 tobacco violations and fail to comply with 6 corresponding sanctions; creating s. 569.010, 7 F.S.; providing for an annual report; providing 8 an effective date. 9 10 Be It Enacted by the Legislature of the State of Florida: 11 12 Section 1. Chapter 569, Florida Statutes, entitled 13 "Tobacco Products Permits" is retitled "Tobacco Products." 14 Section 2. Section 859.06, Florida Statutes, is 15 renumbered as section 569.101, Florida Statutes, and amended 16 to read: 17 569.101 859.06 Selling, delivering, bartering, 18 furnishing, or giving tobacco products and cigarette wrappers 19 to persons under 18 years of age; criminal penalties; 20 defense.-- 21 (1) It is unlawful to sell, deliver, barter, furnish, 22 or give, directly or indirectly, to any person who is under 18 23 years of age, any cigarette or other tobacco product or 24 cigarette wrapper. As used in this section, the word 25 "cigarette" includes a clove cigarette or tobacco substitute. 26 (2) Any person who violates subsection (1) commits is 27 guilty of a misdemeanor of the second degree, punishable as 28 provided in s. 775.082 or s. 775.083. 29 (3) A person charged with a violation of subsection 30 (1) has a complete defense if, at the time the cigarette or 31 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 other tobacco product or cigarette wrapper was sold, 2 delivered, bartered, furnished, or given: 3 (a) The buyer or recipient falsely evidenced that he 4 was 18 years of age or older; 5 (b) The appearance of the buyer or recipient was such 6 that a prudent person would believe the buyer or recipient to 7 be 18 years of age or older; and 8 (c) Such person carefully checked a driver's license 9 or an identification card issued by this state or another 10 state of the United States, a passport, or a United States 11 armed services identification card presented by the buyer or 12 recipient and acted in good faith and in reliance upon the 13 representation and appearance of the buyer or recipient in the 14 belief that the buyer or recipient was 18 years of age or 15 older. 16 Section 3. Section 569.002, Florida Statutes, is 17 amended to read: 18 569.002 Definitions.--As used in this chapter ss. 19 569.002-569.009, the term: 20 (1) "Dealer" is synonymous with the term "retail 21 tobacco products dealer." 22 (2) "Division" means the Division of Alcoholic 23 Beverages and Tobacco of the Department of Business and 24 Professional Regulation. 25 (3) "Permit" is synonymous with the term "retail 26 tobacco products dealer permit." 27 (4) "Retail tobacco products dealer" means the holder 28 of a retail tobacco products dealer permit. 29 (5) "Retail tobacco products dealer permit" means a 30 permit issued by the division pursuant to s. 569.003. 31 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 (6) "Tobacco products" includes loose tobacco leaves, 2 and products made from tobacco leaves, which can be used for 3 smoking, sniffing, or chewing. 4 (7) "Any person under the age of 18" does not include 5 any person under the age of 18 who: 6 (a) Has had his or her disability of nonage removed 7 under chapter 743; 8 (b) Is in the military reserve or on active duty in 9 the Armed Forces of the United States; 10 (c) Is otherwise emancipated by a court of competent 11 jurisdiction and released from parental care and 12 responsibility; or 13 (d) Is working in conjunction with a law enforcement 14 agency to test the compliance of dealers with this chapter. 15 Section 4. Section 569.11, Florida Statutes, is 16 created to read: 17 569.11 Possession, misrepresenting age to purchase, or 18 misrepresenting military service, and purchase of tobacco 19 products by persons under 18 years of age prohibited; 20 penalties; jurisdiction; disposition of fines.-- 21 (1) It is unlawful for any person under 18 years of 22 age to knowingly possess any tobacco product, except a person 23 acting in the scope of his or her lawful employment with an 24 entity licensed under the provisions of chapter 210 or this 25 chapter. Any person under 18 years of age who violates the 26 provisions of this subsection commits a noncriminal violation 27 as provided in s. 775.08(3), punishable by a $25 fine or 28 community service as determined by the Department of Juvenile 29 Justice and administered by the citing law enforcement agency, 30 and confiscation of the tobacco product. 31 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 (2) It is unlawful for any person under 18 years of 2 age to: 3 (a) Misrepresent his or her age or military service 4 for the purpose of inducing a dealer or an agent or employee 5 of the dealer to sell, give, barter, furnish, or deliver any 6 tobacco product; or 7 (b) Purchase any tobacco product from a person or a 8 vending machine. 9 10 Any person under 18 years of age who violates the provisions 11 of this subsection commits a noncriminal violation as provided 12 in s. 775.08(3), punishable by a $50 fine or community service 13 as determined by the Department of Juvenile Justice and 14 administered by the citing law enforcement agency, and 15 confiscation of the tobacco product. 16 (3) Any person under 18 years of age cited for 17 committing a noncriminal violation under this section must 18 sign and accept a civil citation indicating a promise to 19 appear before the county court. The officer may indicate on 20 the civil citation the time and location of the scheduled 21 hearing and must indicate the applicable fine. 22 (4) A person charged with a noncriminal violation 23 under this section who does not elect to appear shall pay the 24 applicable fine, either by mail or in person, within 30 days 25 after receiving the civil citation. If the person cited pays 26 the fine as described in this subsection, he or she shall be 27 deemed to have admitted to committing the violation and to 28 have waived the right to a hearing on the issue of whether the 29 noncriminal violation was committed. 30 (5) A person charged with a noncriminal violation 31 under this section who elects to appear before the county 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 court shall be deemed to waive the right to pay the applicable 2 fine as the sole penalty for the violation. The court, after 3 a hearing, shall make a determination as to whether the 4 noncriminal violation was committed. If the court finds the 5 violation was committed, it shall impose a fine not to exceed 6 the amount specified in subsection (1) or subsection (2), 7 depending upon the noncriminal violation committed, and may 8 also impose one or more of the following sanctions: 9 (a) Reprimand or counsel the person and his or her 10 parent or legal guardian. 11 (b) Require the person to attend, for a reasonable 12 period, a substance abuse program conducted by a public 13 authority. 14 (c) Order the person to participate in public service 15 or a community work project for a specified time not exceeding 16 10 hours. A person who participates in such public service or 17 community work project shall be considered an employee of the 18 state for the purpose of chapter 440, for the duration of such 19 service or work. 20 (d) Upon a second or subsequent offense direct the 21 Department of Highway Safety and Motor Vehicles to withhold 22 issuance of, or suspend or revoke, the person's driver's 23 license or driving privilege, as provided in s. 322.056. 24 (6) If a person fails to: 25 (a) Pay the applicable fine within 30 days after 26 receiving the civil citation; 27 (b) Appear before the court at the specified time and 28 place to contest the civil citation; or 29 (c) Comply with any sanction imposed by the court 30 under subsection (5), following the court's determination that 31 a noncriminal violation was committed 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 2 the court must direct the Department of Highway Safety and 3 Motor Vehicles to withhold issuance of, or suspend or revoke, 4 the person's driver's license or driving privilege, for a 5 period of 30 days for a first violation of this subsection and 6 in addition to any other period of revocation as provided in 7 s. 322.056 for subsequent violations. 8 (7) All civil penalties received by a county court 9 pursuant to this section shall be distributed and paid monthly 10 as follows: 11 (a) Twenty percent shall be paid to the clerk of the 12 county court to cover administrative costs. 13 (b) Eighty percent shall be deposited in the Grants 14 and Donations Trust Fund of the Agency for Health Care 15 Administration. 16 Section 5. Section 569.12, Florida Statutes, is 17 created to read: 18 569.12 Jurisdiction; tobacco product enforcement 19 officers or agents; enforcement.-- 20 (1) In addition to any law enforcement officer 21 certified under s. 943.10(1), (6), or (8), the Division of 22 Alcoholic Beverages and Tobacco of the Department of Business 23 and Professional Regulation, through its agents and 24 inspectors, shall enforce the provisions of this chapter. 25 (2)(a) A county or municipality may designate certain 26 of its employees or agents as tobacco product enforcement 27 officers. The training and qualifications of the employees or 28 agents for such designation shall be determined by the county 29 or the municipality. Nothing in this section shall be 30 construed to permit the carrying of firearms or other weapons 31 by a tobacco product enforcement agent, nor does designation 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 as a tobacco product enforcement officer provide the employee 2 or agent with the power of arrest or subject the employee or 3 agent to the provisions of ss. 943.085-943.255. Nothing in 4 this section amends, alters, or contravenes the provisions of 5 any state-administered retirement system or any 6 state-supported retirement system established by general law. 7 (b) A tobacco product enforcement officer is 8 authorized to issue a citation to a person under the age of 18 9 when, based upon personal investigation, the officer has 10 reasonable cause to believe that the person has committed a 11 civil infraction in violation of s. 569.11. 12 (c) A citation issued by a tobacco product enforcement 13 officer shall be in a form prescribed by the county or 14 municipality and shall contain: 15 1. The date and time of issuance. 16 2. The name and address of the person to whom the 17 citation is issued. 18 3. The date and time the civil infraction was 19 committed. 20 4. The facts constituting reasonable cause. 21 5. The number of the Florida Statute violated. 22 6. The name of the tobacco product enforcement 23 officer. 24 7. The procedure for the person to follow in order to 25 pay the civil penalty or to contest the citation. 26 Section 6. Paragraph (c) of subsection (1) of section 27 569.003, Florida Statutes, is amended to read: 28 569.003 Retail tobacco products dealer permits; 29 application; qualifications; fees; renewal; duplicates.-- 30 (1) 31 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 (c) Permits shall be issued annually, beginning 2 January 15, 1993, upon payment of the annual permit fee 3 prescribed by the division. The division shall fix the fee in 4 an amount sufficient to meet the costs incurred by it in 5 carrying out its permitting, enforcement, and administrative 6 responsibilities under this chapter ss. 569.002-569.009, but 7 the fee may not exceed $50. The proceeds of the fee shall be 8 deposited into the Alcoholic Beverage and Tobacco Trust Fund. 9 Section 7. Section 569.004, Florida Statutes, is 10 amended to read: 11 569.004 Consent to inspection and search without 12 warrant.--An applicant for a permit, by accepting the permit 13 when issued, agrees that the place or premises covered by the 14 permit is subject to inspection and search without a search 15 warrant by the division or its authorized assistants, and by 16 sheriffs, deputy sheriffs, or police officers, to determine 17 compliance with this chapter ss. 569.002-569.009 and ss. 18 859.06 and 859.061. 19 Section 8. Section 569.006, Florida Statutes, is 20 amended to read: 21 569.006 Retail tobacco products dealers; 22 administrative penalties.--The division may suspend or revoke 23 the permit of the dealer upon sufficient cause appearing of 24 the violation of any of the provisions of this chapter s. 25 569.003, s. 569.005, s. 569.007, s. 859.06, or s. 859.061, by 26 a dealer or by a dealer's agent or employee. The division may 27 also assess and accept administrative fines of up to $1,000 28 against a dealer for each violation. The division shall 29 deposit all fines collected into the General Revenue Fund as 30 collected. An order imposing an administrative fine becomes 31 effective 15 days after the date of the order. The division 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 may suspend the imposition of a penalty against a dealer, 2 conditioned upon the dealer's compliance with terms the 3 division considers appropriate. 4 Section 9. Section 859.061, Florida Statutes, is 5 renumbered as section 569.14, Florida Statutes, and amended to 6 read: 7 569.14 859.061 Posting of a sign stating that the sale 8 of cigarettes and other tobacco products to persons under 18 9 years of age is unlawful; enforcement; penalty.-- 10 (1) Any dealer retailer or owner of a business that 11 sells cigarettes or other tobacco products shall post a clear 12 and conspicuous sign in each place of business where such 13 cigarettes or other tobacco products are sold which states the 14 following: 15 16 THE SALE OF CIGARETTES AND OTHER TOBACCO 17 PRODUCTS TO PERSONS UNDER THE AGE OF 18 IS 18 AGAINST FLORIDA LAW (SECTION 569.101 859.06, 19 FLORIDA STATUTES). PROOF OF AGE IS REQUIRED 20 FOR PURCHASE. 21 22 (2) The division of Alcoholic Beverages and Tobacco of 23 the Department of Business and Professional Regulation shall 24 make available to dealers retailers of cigarettes or other 25 tobacco products signs that meet the requirements of 26 subsection (1). 27 (3) The division of Alcoholic Beverages and Tobacco of 28 the Department of Business and Professional Regulation, 29 through its agents and inspectors, shall enforce this section. 30 (4) Any person who fails to comply with subsection (1) 31 shall be subject to administrative penalties as provided in s. 10 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 569.006 is guilty of a misdemeanor of the second degree, 2 punishable as provided in s. 775.082 or s. 775.083. 3 Section 10. Section 859.058, Florida Statutes, is 4 hereby repealed. 5 Section 11. Subsection (1) of section 569.007, Florida 6 Statutes, is amended to read: 7 569.007 Sale or delivery of tobacco products; 8 restrictions.-- 9 (1) The sale or delivery of tobacco products through a 10 vending machine is prohibited in order to prevent persons 11 under 18 years of age from purchasing or receiving tobacco 12 products through the use of such machines unless the machine: 13 (a) Is located within the unobstructed line of sight 14 of a dealer or a dealer's agent or employee who is responsible 15 for preventing persons under 18 years of age from purchasing 16 tobacco products through that machine; or. 17 (b) Is equipped with a lock-out device which is under 18 the control of a person of legal age who directly regulates 19 the sale of items through the machine by checking users of the 20 vending machine for proof of legal age to purchase products, 21 and if the person is of legal age, triggering the lock-out 22 device to allow the dispensing of one tobacco product. The 23 lock-out device must include, a mechanism to prevent the 24 machine from functioning if the power source for the lock-out 25 device fails or if the lock-out device is disabled, and a 26 mechanism to ensure that only one tobacco product is dispensed 27 at a time. 28 (c) The provisions of this subsection shall not apply 29 to an establishment that prohibits, pursuant to law, persons 30 under 18 years of age on the licensed premises. 31 11 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 Section 12. Section 569.008, Florida Statutes, is 2 amended to read: 3 569.008 Responsible retail tobacco products dealers; 4 qualifications; mitigation of disciplinary penalties.-- 5 (1) The Legislature intends to prevent the sale of 6 tobacco products to underage persons under 18 years of age and 7 to encourage retail tobacco products dealers to comply with 8 responsible practices in accordance with this section. 9 (2) To qualify as a responsible retail tobacco 10 products dealer, the dealer must establish and implement 11 procedures designed to ensure that the dealer's employees 12 comply with the provisions of this chapter ss. 569.002-569.009 13 and s. 859.06. The dealer must provide a training program for 14 the dealer's employees which addresses the use and sale of 15 tobacco products and which includes at least the following 16 topics: 17 (a) Laws covering the sale of tobacco products. 18 (b) Methods of recognizing and handling underage 19 customers under 18 years of age. 20 (c) Procedures for proper examination of 21 identification cards in order to verify that customers are not 22 under 18 years of age underage. 23 (d) The use of the age audit identification function 24 on electronic point-of-sale equipment, where available. 25 (3) In determining penalties under s. 569.006 s. 26 569.005, the division may mitigate penalties imposed against a 27 dealer because of an employee's illegal sale of a tobacco 28 product to a person under 18 years of age if the following 29 conditions are met: 30 (a) The dealer is qualified as a responsible dealer 31 under this section. 12 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 (b) The dealer provided the training program required 2 under subsection (2) to that employee before the illegal sale 3 occurred. 4 (c) The dealer had no knowledge of that employee's 5 violation at the time of the violation and did not direct, 6 approve, or participate in the violation. 7 (d) If the sale was made through a vending machine, 8 the machine was equipped with an operational lock-out device. 9 (4) The division shall develop and make available a 10 model tobacco products training program designed to ensure 11 adherence to this act by dealers and their employees which, if 12 followed, will qualify dealers as responsible dealers. 13 Section 13. Section 569.009, Florida Statutes, is 14 amended to read: 15 569.009 Rulemaking authority.--The division shall 16 adopt any rules necessary to administer and enforce the 17 provisions of this chapter ss. 569.002-569.009. 18 Section 14. Section 322.056, Florida Statutes, is 19 amended to read: 20 322.056 Mandatory revocation or suspension of, or 21 delay of eligibility for, driver's license for persons under 22 age 18 found guilty of certain alcohol, or drug, or tobacco 23 offenses.-- 24 (1) Notwithstanding the provisions of s. 322.055, if a 25 person under 18 years of age is found guilty of or delinquent 26 for a violation of s. 562.11(2), s. 562.111, or chapter 893, 27 and: 28 (a) The person is eligible by reason of age for a 29 driver's license or driving privilege, the court shall direct 30 the department to revoke or to withhold issuance of his or her 31 driver's license or driving privilege for a period of: 13 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 1. Not less than 6 months and not more than 1 year for 2 the first violation. 3 2. Two years, for a subsequent violation. 4 (b) The person's driver's license or driving privilege 5 is under suspension or revocation for any reason, the court 6 shall direct the department to extend the period of suspension 7 or revocation by an additional period of: 8 1. Not less than 6 months and not more than 1 year for 9 the first violation. 10 2. Two years, for a subsequent violation. 11 (c) The person is ineligible by reason of age for a 12 driver's license or driving privilege, the court shall direct 13 the department to withhold issuance of his or her driver's 14 license or driving privilege for a period of: 15 1. Not less than 6 months and not more than 1 year 16 after the date on which he would otherwise have become 17 eligible, for the first violation. 18 2. Two years after the date on which he would 19 otherwise have become eligible, for a subsequent violation. 20 (2) If a person under 18 years of age is found by the 21 court to have committed a noncriminal violation under s. 22 569.11 and that person has failed to comply with the 23 procedures established in that section, by either failing to 24 pay the applicable fine on time, failure to appear in court at 25 the specified time or failure to comply with court ordered 26 sanctions, and: 27 (a) The person is eligible by reason of age for a 28 driver's license or driving privilege, the court shall direct 29 the department to revoke or to withhold issuance of his or her 30 driver's license or driving privilege as follows: 31 1. For the second violation, for a 1-month period. 14 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 2. For the third violation, for a 3-month period. 2 3. For the fourth or subsequent violation, for a 3 6-month period. 4 (b) The person's driver's license or driving privilege 5 is under suspension or revocation for any reason, the court 6 shall direct the department to extend the period of suspension 7 or revocation by an additional period as follows: 8 1. For the second violation, for a 1-month period. 9 2. For the third violation, for a 3-month period. 10 3. For the fourth or subsequent violation, for a 11 6-month period. 12 (c) The person is ineligible by reason of age for a 13 driver's license or driving privilege, the court shall direct 14 the department to withhold issuance of his or her driver's 15 license or driving privilege as follows: 16 1. For the second violation, for a 1-month period. 17 2. For the third violation, for a 3-month period. 18 3. For the fourth or subsequent violation, for a 19 6-month period. 20 (3)(2) A penalty imposed under this section subsection 21 (1) shall be in addition to any other penalty imposed by law. 22 Section 15. Section 569.010, Florida Statutes, is 23 created to read: 24 569.010 Annual report.--The division shall report 25 annually with written findings to the Legislature and Governor 26 by December 31, starting with the year 1997, on the progress 27 of implementing the licensing provisions of this chapter. 28 This must include, but is not limited to: 29 (1) The number and results of sting operations. 30 (2) The number of violations for failure of a retailer 31 to hold a valid license. 15 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 845 536-140-97 1 (3) The number of violations for selling tobacco 2 products to persons under age 18, and the results of 3 administrative hearings on the above and related issues. 4 Section 16. This act shall take effect on October 1, 5 1997. 6 7 ***************************************** 8 HOUSE SUMMARY 9 Prohibits the purchase or possession of tobacco products 10 by persons under 18 years of age. See bill for details. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 16