Florida Senate - 2009 SENATOR AMENDMENT Bill No. CS for CS for SB 1840 Barcode 332194 LEGISLATIVE ACTION Senate . House . . . Floor: 4/AD/2R . 04/16/2009 02:51 PM . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Deutch moved the following: 1 Senate Amendment (with title amendment) 2 3 Between lines 219 and 220 4 insert: 5 Section 5. Section 210.095, Florida Statutes, is created to 6 read: 7 210.095 Mail order, Internet, and remote sales of tobacco 8 products; age verification.— 9 (1) For purposes of this section, the term: 10 (a) “Adult” means an individual who is at least the legal 11 minimum purchase age for tobacco products. 12 (b) “Consumer” means a person in this state who comes into 13 possession of any tobacco product subject to the tax imposed by 14 this chapter and who, at the time of possession, is not a 15 distributor intending to sell or distribute the tobacco product, 16 a retailer, or a wholesaler. 17 (c) “Delivery sale” means any sale of tobacco products to a 18 consumer in this state for which: 19 1. The consumer submits the order for the sale by means of 20 telephonic or other voice transmission, mail, a delivery 21 service, or the Internet or other online service; or 22 2. The tobacco products are delivered by use of mail or a 23 delivery service. 24 (d) “Delivery service” means any person engaged in the 25 commercial delivery of letters, packages, or other containers. 26 (e) “Legal minimum purchase age” means the minimum age at 27 which an individual may legally purchase tobacco products in 28 this state. 29 (f) “Mail” or “mailing” means the shipment of tobacco 30 products through the United States Postal Service. 31 (g) “Retailer” means any person who is not a licensed 32 distributor in possession of tobacco products subject to tax 33 under this chapter for the purposes of selling the tobacco 34 products to consumers. 35 (h) “Shipping container” means a container in which tobacco 36 products are shipped in connection with a delivery sale. 37 (i) “Shipping document” means a bill of lading, airbill, 38 United States Postal Service form, or any other document used to 39 verify the undertaking by a delivery service to deliver letters, 40 packages, or other containers. 41 (j) “Tobacco products” means all cigarettes, smoking 42 tobacco, snuff, fine-cut chewing tobacco, cut and granulated 43 tobacco, cavendish, plug or twist tobacco, and cigars. 44 (2)(a) A sale of tobacco products constituting a delivery 45 sale pursuant to paragraph (1)(c) is a delivery sale regardless 46 of whether the person accepting the order for the delivery sale 47 is located inside or outside this state. 48 (b) A cigarette retailer must obtain a license from the 49 department pursuant to the requirements of this chapter before 50 accepting an order for a delivery sale. 51 (c) A person may not make a delivery sale of tobacco 52 products to any individual who is not an adult. 53 (d) Each person accepting an order for a delivery sale 54 shall comply with each of the following: 55 1. The age verification requirements set forth in 56 subsection (3). 57 2. The disclosure requirements set forth in subsection (4). 58 3. The shipping requirements set forth in subsection (5). 59 4. The registration and reporting requirements set forth in 60 subsection (6). 61 5. The tax collection requirements set forth in subsection 62 (7). 63 6. The licensing and tax stamp requirements set forth in 64 this chapter that apply to sales of tobacco products occurring 65 entirely in this state. 66 7. All laws of this state generally applicable to sales of 67 tobacco products occurring entirely in this state which impose 68 excise taxes and assessments. 69 (3) A person may not mail, ship, or otherwise deliver 70 tobacco products in connection with an order for a delivery sale 71 unless, before the first delivery to the consumer, the person 72 accepting the order for the delivery sale: 73 (a) Obtains from the individual submitting the order a 74 certification that includes: 75 1. Reliable confirmation that the individual is an adult; 76 and 77 2. A statement signed by the individual in writing and 78 under penalty of perjury that: 79 a. Certifies the address and date of birth of the 80 individual; and 81 b. Confirms that the individual wants to receive delivery 82 sales from a tobacco company and understands that, under the 83 laws of this state, the following actions are illegal: 84 (I) Signing another individual’s name to the certification; 85 (II) Selling tobacco products to individuals under the 86 legal minimum purchase age; and 87 (III) Purchasing tobacco products, if the person making the 88 purchase is under the legal minimum purchase age. 89 (b) Makes a good faith effort to verify the information 90 contained in the certification provided by the individual 91 pursuant to paragraph (a) against a commercially available 92 database that may be reasonably relied upon for accurate age 93 information or obtains a photocopy or other image of a valid 94 government-issued identification card stating the date of birth 95 or age of the individual. 96 (c) Provides to the individual, via electronic mail or 97 other means, a notice meeting the requirements of subsection 98 (4). 99 (d) If an order for tobacco products is made pursuant to an 100 advertisement on the Internet, receives payment for the delivery 101 sale from the consumer by a credit or debit card issued in the 102 name of the consumer, or by personal or company check of the 103 consumer. 104 (e) Imposes a two-carton minimum on each order of 105 cigarettes, and requires payment for the purchase of any tobacco 106 product to be made by personal check of the purchaser or the 107 purchaser’s credit card. Payment by money order or cash may not 108 be received or permitted. The person accepting the order for 109 delivery sale shall submit to each credit card acquiring company 110 with which it has credit card sales identification information 111 in an appropriate form and format so that the words “tobacco 112 product” may be printed in the purchaser’s credit card statement 113 when a purchase of a tobacco product is made by credit card 114 payment. 115 (f) Makes a telephone call after 5 p.m. to the purchaser 116 confirming the order before shipping the tobacco products. The 117 telephone call may be a person-to-person call or a recorded 118 message. The person accepting the order for delivery sale is not 119 required to speak directly with a person and may leave a message 120 on an answering machine or by voice mail system. 121 122 In addition to the requirements of this subsection, a person 123 accepting an order for a delivery sale may request that a 124 consumer provide an electronic mail address. 125 (4) The notice described in paragraph (3)(c) shall include 126 prominent and clearly legible statements that sales of tobacco 127 products are: 128 (a) Illegal if made to individuals who are not adults. 129 (b) Restricted to those individuals who provide verifiable 130 proof of age in accordance with subsection (3). 131 (c) Taxable under this chapter. 132 133 The notice shall include an explanation of how each tax has 134 been, or is to be, paid with respect to the delivery sale. 135 (5) Each person who mails, ships, or otherwise delivers 136 tobacco products in connection with an order for a delivery sale 137 shall: 138 (a) Include as part of the shipping documents, in a clear 139 and conspicuous manner, the following statement: “Tobacco 140 Products: Florida law prohibits shipping to individuals under 18 141 years of age and requires the payment of all applicable taxes.” 142 (b) Use a method of mailing, shipping, or delivery that 143 obligates the delivery service to require: 144 1. The individual submitting the order for the delivery 145 sale or another adult who resides at the individual’s address to 146 sign his or her name to accept delivery of the shipping 147 container. Proof of the legal minimum purchase age of the 148 individual accepting delivery is required only if the individual 149 appears to be under 27 years of age. 150 2. Proof that the individual is either the addressee or the 151 adult designated by the addressee, in the form of a valid, 152 government-issued identification card bearing a photograph of 153 the individual who signs to accept delivery of the shipping 154 container. 155 (c) Provide to the delivery service retained to deliver the 156 delivery sale evidence of full compliance with subsection (7). 157 158 If the person accepting a purchase order for a delivery sale 159 delivers the tobacco products without using a delivery service, 160 the person must comply with all of the requirements of this 161 section which apply to a delivery service ,and any failure to 162 comply with a requirement of this section constitutes a 163 violation thereof. 164 (6)(a) Before making sales or shipping tobacco products in 165 connection with sales, a person shall file with the department a 166 statement stating the person’s name, trade name, and the address 167 of the person’s principal place of business, as well as any 168 other place of business. 169 (b) No later than the 10th day of each month, each person 170 who has made a sale or mailed, shipped, or otherwise delivered 171 tobacco products in connection with any sale during the previous 172 calendar month shall file with the department a memorandum or a 173 copy of the invoice, providing for each sale: 174 1. The name and address of the individual who submitted the 175 order for the sale. 176 2. The name and address of the individual who accepted 177 delivery of the tobacco products. 178 3. The name and address of the person accepting the order 179 for the sale of tobacco products. 180 4. The name and address of the delivery service and the 181 name of the individual making the delivery. 182 5. The brand or brands of the tobacco products sold in the 183 sale. 184 6. The quantity of each brand of tobacco products sold in 185 the sale. 186 (c) A person may comply with the requirements of this 187 subsection by complying with the requirements of 15 U.S.C. 376. 188 (d) This section does not apply to sales of tobacco 189 products by a licensed distributor or to sales of tobacco 190 products by a retailer purchased from a licensed distributor. 191 (7) Each person accepting a purchase order for a delivery 192 sale shall collect and remit to the department all taxes imposed 193 on tobacco products by this state with respect to the delivery 194 sale. With respect to cigarettes, the collection and remission 195 are not required if the person has obtained proof in the form of 196 the presence of applicable tax stamps or tax exempt stamps, or 197 other proof that the taxes have already been paid to this state. 198 (8)(a) Except as otherwise provided in this section, a 199 violation of this section by a person other than an individual 200 who is not an adult is a misdemeanor of the first degree, 201 punishable as provided in s. 775.082 or s. 775.083, and: 202 1. For a first violation of this section, the person shall 203 be fined $1,000 or five times the retail value of the tobacco 204 products involved in the violation, whichever is greater. 205 2. For a second or subsequent violation of this section, 206 the person shall be fined $5,000 or five times the retail value 207 of the tobacco products involved in the violation, whichever is 208 greater. 209 (b) A person who is an adult and who knowingly submits a 210 false certification under subsection (3) commits a misdemeanor 211 of the first degree, punishable as provided in s. 775.082 or s. 212 775.083. For each offense, the person shall be fined $10,000 or 213 five times the retail value of the tobacco products involved in 214 the violation, whichever is greater. 215 (c) A person who fails to pay any tax required in 216 connection with a delivery sale shall pay, in addition to any 217 other penalty, a penalty of five times the retail value of the 218 tobacco products involved. 219 (d) Any tobacco products sold or attempted to be sold in a 220 delivery sale not meeting the requirements of this section shall 221 be forfeited to the state pursuant to s. 210.185. 222 (e) A person who, in connection with a delivery sale, 223 delivers tobacco products on behalf of a delivery service to an 224 individual who is not an adult commits a misdemeanor of the 225 third degree, punishable as provided in s. 775.082 or s. 226 775.083. 227 (f) Any fixture, equipment, or other material or personal 228 property on the premises of any person who, with the intent to 229 defraud this state, mails or ships tobacco products into this 230 state and fails to satisfy any of the requirements of this 231 section is a contraband article within the definition of s. 232 932.701(2)(a)3. 233 (g) An individual who is not an adult and who knowingly 234 violates any provision of this section commits a misdemeanor of 235 the third degree, punishable as provided in s. 775.082 or s. 236 775.083. 237 (9) The Attorney General, the Attorney General’s designee, 238 a state attorney, or any person who holds a permit under 26 239 U.S.C. 5713 may bring an action in the appropriate court in this 240 state to prevent or restrain violations of this section by any 241 person. 242 243 ================= T I T L E A M E N D M E N T ================ 244 And the title is amended as follows: 245 Delete line 18 246 and insert: 247 conform; creating s. 210.095, F.S.; providing 248 definitions; providing that certain transactions 249 constitute a delivery sale of tobacco products; 250 requiring that a cigarette retailer obtain a license 251 before accepting an order for a delivery sale; 252 prohibiting the making of a delivery sale to a person 253 who is not an adult; requiring that a person accepting 254 an order for a delivery sale comply with certain 255 requirements; prohibiting the mailing, shipping, or 256 delivery of tobacco products in connection with an 257 order for delivery sale unless, before the first 258 delivery to a consumer, the person accepting such 259 order takes certain actions; authorizing a person 260 accepting an order for delivery sale to request that a 261 consumer provide an e-mail address; requiring the 262 delivery of a notice to consumers making orders for 263 delivery sale; providing requirements for such notice; 264 requiring that each person who mails, ships, or 265 delivers tobacco products in connection with an order 266 for delivery sale fulfill specified requirements; 267 requiring that a person file a statement containing 268 certain information with the Department of Business 269 and Professional Regulation before selling or shipping 270 tobacco products; requiring that certain individuals 271 file certain information with the department at 272 specified intervals; providing that a person may 273 comply with certain provisions of state law by 274 complying with certain provisions of federal law; 275 providing for applicability of certain provisions of 276 state law; requiring the collection and remittance of 277 certain taxes; providing penalties for certain 278 violations of state law; classifying certain property 279 as contraband material; requiring the forfeiture of 280 tobacco products under certain circumstances; 281 authorizing the Attorney General, his or her designee, 282 a state attorney, or any person holding a specified 283 type of permit to bring certain actions in a court of 284 this state; amending s. 210.18, F.S.; providing 285 enhanced