Florida Senate - 2014                                     SB 224
       
       
        
       By Senator Benacquisto
       
       
       
       
       
       30-00133A-14                                           2014224__
    1                        A bill to be entitled                      
    2         An act relating to alternative nicotine products;
    3         amending s. 569.002, F.S.; providing and revising
    4         definitions; amending s. 569.0075, F.S.; prohibiting
    5         the gift of sample alternative nicotine products to
    6         persons younger than 18 years of age; amending s.
    7         569.101, F.S.; prohibiting the sale, delivery,
    8         bartering, furnishing, or giving of alternative
    9         nicotine products to persons younger than 18 years of
   10         age; amending s. 569.11, F.S.; prohibiting a person
   11         who is younger than 18 years of age from buying,
   12         possessing, or misrepresenting his or her age in order
   13         to buy alternative nicotine products; amending s.
   14         569.14, F.S.; revising the contents of signs that must
   15         be displayed at locations where alternative nicotine
   16         products are available for purchase; reenacting s.
   17         322.056(2) and (3), F.S., relating to mandatory driver
   18         license revocation or suspension for persons younger
   19         than 18 years of age who commit certain offenses, to
   20         incorporate changes made by the act to s. 569.11,
   21         F.S., in a reference thereto; providing an effective
   22         date.
   23  
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Section 569.002, Florida Statutes, is amended to
   27  read:
   28         569.002 Definitions.—
   29         (1) As used in this chapter, the term:
   30         (a) “Alternative nicotine product” means a product that
   31  consists of or contains nicotine that can be ingested into the
   32  body by any means, including, but not limited to, chewing,
   33  smoking, absorbing, dissolving, and inhaling. The term includes
   34  an electronic cigarette, but does not include any of the
   35  following:
   36         1. Tobacco products.
   37         2. A product that is a drug as defined in 21 U.S.C. s.
   38  321(g)(1).
   39         3. A product that is a device as defined in 21 U.S.C. s.
   40  321(h).
   41         4. A combination product that is a device regulated under
   42  21 U.S.C. s. 353(g).
   43         (1) “Dealer” is synonymous with the term “retail tobacco
   44  products dealer.”
   45         (b)(2) “Division” means the Division of Alcoholic Beverages
   46  and Tobacco of the Department of Business and Professional
   47  Regulation.
   48         (c) “Electronic cigarette” means a device or product that
   49  produces a vapor that delivers nicotine or other substances to a
   50  person inhaling from the device to simulate smoking and that is
   51  offered to or purchased by consumers as an electronic cigarette,
   52  electronic cigar, electronic cigarillo, electronic pipe, or
   53  other similar device or product.
   54         (3) “Permit” is synonymous with the term “retail tobacco
   55  products dealer permit.”
   56         (d)(4) “Retail tobacco products dealer” or “dealer” means
   57  the holder of a retail tobacco products dealer permit.
   58         (e)(5) “Retail tobacco products dealer permit” or “permit”
   59  means a permit issued by the division pursuant to s. 569.003.
   60         (f)(6) “Tobacco products” includes loose tobacco leaves,
   61  and products made from tobacco leaves, in whole or in part, and
   62  cigarette wrappers, which can be used for smoking, sniffing, or
   63  chewing.
   64         (2)(7)The termAny person under the age of 18” does not
   65  include a any person under the age of 18 who:
   66         (a) Has had his or her disability of nonage removed under
   67  chapter 743;
   68         (b) Is in the military reserve or on active duty in the
   69  Armed Forces of the United States;
   70         (c) Is otherwise emancipated by a court of competent
   71  jurisdiction and released from parental care and responsibility;
   72  or
   73         (d) Is acting in his or her scope of lawful employment with
   74  an entity licensed under the provisions of chapter 210 or this
   75  chapter.
   76         Section 2. Section 569.0075, Florida Statutes, is amended
   77  to read:
   78         569.0075 Sample gifts of Gift of sample tobacco products or
   79  alternative nicotine products prohibited.—The gift of sample
   80  tobacco products or alternative nicotine products to a any
   81  person under the age of 18 by an entity licensed or permitted
   82  under the provisions of chapter 210 or this chapter, or by an
   83  employee of such entity, is prohibited and is punishable as
   84  provided in s. 569.101.
   85         Section 3. Section 569.101, Florida Statutes, is amended to
   86  read:
   87         569.101 Selling, delivering, bartering, furnishing, or
   88  giving tobacco products or alternative nicotine products to
   89  persons under 18 years of age; criminal penalties; defense.—
   90         (1) It is unlawful to sell, deliver, barter, furnish, or
   91  give, directly or indirectly, to a any person who is under 18
   92  years of age, any tobacco product or alternative nicotine
   93  product.
   94         (2) A Any person who violates subsection (1) commits a
   95  misdemeanor of the second degree, punishable as provided in s.
   96  775.082 or s. 775.083. However, a any person who violates
   97  subsection (1) for a second or subsequent time within 1 year of
   98  the first violation, commits a misdemeanor of the first degree,
   99  punishable as provided in s. 775.082 or s. 775.083.
  100         (3) A person charged with a violation of subsection (1) has
  101  a complete defense if, at the time the tobacco product or
  102  alternative nicotine product was sold, delivered, bartered,
  103  furnished, or given:
  104         (a) The buyer or recipient falsely evidenced that she or he
  105  was 18 years of age or older;
  106         (b) The appearance of the buyer or recipient was such that
  107  a prudent person would believe the buyer or recipient to be 18
  108  years of age or older; and
  109         (c) Such person carefully checked a driver driver’s license
  110  or an identification card issued by this state or another state
  111  of the United States, a passport, or a United States armed
  112  services identification card presented by the buyer or recipient
  113  and acted in good faith and in reliance upon the representation
  114  and appearance of the buyer or recipient in the belief that the
  115  buyer or recipient was 18 years of age or older.
  116         Section 4. Section 569.11, Florida Statutes, is amended to
  117  read:
  118         569.11 Possession, misrepresenting age or military service
  119  to purchase, and purchase of tobacco products or alternative
  120  nicotine products by persons under 18 years of age prohibited;
  121  penalties; jurisdiction; disposition of fines.—
  122         (1) It is unlawful for a any person under 18 years of age
  123  to knowingly possess any tobacco product or alternative nicotine
  124  product. A Any person under 18 years of age who violates the
  125  provisions of this subsection commits a noncriminal violation as
  126  provided in s. 775.08(3), punishable by:
  127         (a) For a first violation, 16 hours of community service
  128  or, instead of community service, a $25 fine. In addition, The
  129  person must also attend a school-approved anti-tobacco program,
  130  if locally available;
  131         (b) For a second violation within 12 weeks of the first
  132  violation, a $25 fine; or
  133         (c) For a third or subsequent violation within 12 weeks of
  134  the first violation, the court must direct the Department of
  135  Highway Safety and Motor Vehicles to withhold issuance of or
  136  suspend or revoke the person’s driver driver’s license or
  137  driving privilege, as provided in s. 322.056.
  138  
  139  A Any second or subsequent violation not within the 12-week time
  140  period after the first violation is punishable as provided for a
  141  first violation.
  142         (2) It is unlawful for a any person under 18 years of age
  143  to misrepresent his or her age or military service for the
  144  purpose of inducing a dealer or an agent or employee of the
  145  dealer to sell, give, barter, furnish, or deliver any tobacco
  146  product or alternative nicotine product, or to purchase, or
  147  attempt to purchase, any tobacco product or alternative nicotine
  148  product from a person or a vending machine. A Any person under
  149  18 years of age who violates a provision of this subsection
  150  commits a noncriminal violation as provided in s. 775.08(3),
  151  punishable by:
  152         (a) For a first violation, 16 hours of community service
  153  or, instead of community service, a $25 fine. and, in addition,
  154  The person must also attend a school-approved anti-tobacco
  155  program, if available;
  156         (b) For a second violation within 12 weeks of the first
  157  violation, a $25 fine; or
  158         (c) For a third or subsequent violation within 12 weeks of
  159  the first violation, the court must direct the Department of
  160  Highway Safety and Motor Vehicles to withhold issuance of or
  161  suspend or revoke the person’s driver driver’s license or
  162  driving privilege, as provided in s. 322.056.
  163  
  164  A Any second or subsequent violation not within the 12-week time
  165  period after the first violation is punishable as provided for a
  166  first violation.
  167         (3) A Any person under 18 years of age cited for committing
  168  a noncriminal violation under this section must sign and accept
  169  a civil citation indicating a promise to appear before the
  170  county court or pay comply with the requirement for paying the
  171  fine and must attend a school-approved anti-tobacco program, if
  172  locally available. If a fine is assessed for a violation of this
  173  section, the fine must be paid within 30 days after the date of
  174  the citation or, if a court appearance is mandatory, within 30
  175  days after the date of the hearing.
  176         (4) A person charged with a noncriminal violation under
  177  this section must appear before the county court or pay comply
  178  with the requirement for paying the fine. The court, after a
  179  hearing, shall determine make a determination as to whether the
  180  noncriminal violation was committed. If the court finds the
  181  violation was committed, it shall impose an appropriate penalty
  182  as specified in subsection (1) or subsection (2). A person who
  183  participates in community service is shall be considered an
  184  employee of the state for the purpose of chapter 440, for the
  185  duration of such service.
  186         (5)(a) If a person under 18 years of age is found by the
  187  court to have committed a noncriminal violation under this
  188  section and that person has failed to:
  189         (a) Complete community service, pay the fine as required by
  190  paragraph (1)(a) or paragraph (2)(a), or attend a school
  191  approved anti-tobacco program, if locally available, the court
  192  must direct the Department of Highway Safety and Motor Vehicles
  193  to withhold issuance of or suspend the driver driver’s license
  194  or driving privilege of that person for a period of 30
  195  consecutive days.
  196         (b) If a person under 18 years of age is found by the court
  197  to have committed a noncriminal violation under this section and
  198  that person has failed to Pay the applicable fine as required by
  199  paragraph (1)(b) or paragraph (2)(b), the court must direct the
  200  Department of Highway Safety and Motor Vehicles to withhold
  201  issuance of or suspend the driver driver’s license or driving
  202  privilege of that person for a period of 45 consecutive days.
  203         (6) Eighty percent of all civil penalties received by a
  204  county court pursuant to this section shall be remitted by the
  205  clerk of the court to the Department of Revenue for transfer to
  206  the Department of Education to provide for teacher training and
  207  for research and evaluation to reduce and prevent the use of
  208  tobacco products by minors children. The remaining 20 percent of
  209  civil penalties received by a county court pursuant to this
  210  section shall remain with the clerk of the county court to cover
  211  administrative costs.
  212         Section 5. Section 569.14, Florida Statutes, is amended to
  213  read:
  214         569.14 Posting of a sign stating that the sale of tobacco
  215  products or alternative nicotine products to persons under 18
  216  years of age is unlawful; enforcement; penalty.—
  217         (1) A Any dealer that sells tobacco products or alternative
  218  nicotine products shall post a clear and conspicuous sign in
  219  each place of business where such products are sold which
  220  substantially states the following:
  221  
  222         THE SALE OF TOBACCO PRODUCTS OR ALTERNATIVE NICOTINE
  223         PRODUCTS TO PERSONS UNDER THE AGE OF 18 IS AGAINST
  224         FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
  225  
  226         (2) The division shall make signs available to dealers of
  227  tobacco products or alternative nicotine products which signs
  228  that meet the requirements of subsection (1).
  229         (3) A Any dealer that sells tobacco products or alternative
  230  nicotine products shall provide at the checkout counter in a
  231  location clearly visible to the dealer, the dealer’s agent, or
  232  employee, instructional material in a calendar format or similar
  233  format to assist in determining whether a person is of legal age
  234  to purchase tobacco products or alternative nicotine products.
  235  This point of sale material must contain substantially the
  236  following language:
  237  
  238                IF YOU WERE NOT BORN BEFORE THIS DATE              
  239                  (insert date and applicable year)                
  240       YOU CANNOT BUY TOBACCO PRODUCTS OR ALTERNATIVE NICOTINE     
  241                              PRODUCTS.                            
  242  
  243  Upon approval by the division, in lieu of a calendar, a dealer
  244  may use card readers, scanners, or other electronic or automated
  245  systems that can verify whether a person is of legal age to
  246  purchase tobacco products or alternative nicotine products.
  247  Failure to comply with the provisions contained in this
  248  subsection shall result in imposition of administrative
  249  penalties as provided in s. 569.006.
  250         (4) The division, through its agents and inspectors, shall
  251  enforce this section through its agents and inspectors.
  252         (5) A Any person who fails to comply with subsection (1)
  253  commits is guilty of a misdemeanor of the second degree,
  254  punishable as provided in s. 775.082 or s. 775.083.
  255         Section 6. For the purpose of incorporating the amendments
  256  made by this act to section 569.11, Florida Statutes, in a
  257  reference thereto, subsections (2) and (3) of section 322.056,
  258  Florida Statutes, are reenacted to read:
  259         322.056 Mandatory revocation or suspension of, or delay of
  260  eligibility for, driver’s license for persons under age 18 found
  261  guilty of certain alcohol, drug, or tobacco offenses;
  262  prohibition.—
  263         (2) If a person under 18 years of age is found by the court
  264  to have committed a noncriminal violation under s. 569.11 and
  265  that person has failed to comply with the procedures established
  266  in that section by failing to fulfill community service
  267  requirements, failing to pay the applicable fine, or failing to
  268  attend a locally available school-approved anti-tobacco program,
  269  and:
  270         (a) The person is eligible by reason of age for a driver’s
  271  license or driving privilege, the court shall direct the
  272  department to revoke or to withhold issuance of his or her
  273  driver’s license or driving privilege as follows:
  274         1. For the first violation, for 30 days.
  275         2. For the second violation within 12 weeks of the first
  276  violation, for 45 days.
  277         (b) The person’s driver’s license or driving privilege is
  278  under suspension or revocation for any reason, the court shall
  279  direct the department to extend the period of suspension or
  280  revocation by an additional period as follows:
  281         1. For the first violation, for 30 days.
  282         2. For the second violation within 12 weeks of the first
  283  violation, for 45 days.
  284         (c) The person is ineligible by reason of age for a
  285  driver’s license or driving privilege, the court shall direct
  286  the department to withhold issuance of his or her driver’s
  287  license or driving privilege as follows:
  288         1. For the first violation, for 30 days.
  289         2. For the second violation within 12 weeks of the first
  290  violation, for 45 days.
  291  
  292  Any second violation of s. 569.11 not within the 12-week period
  293  after the first violation will be treated as a first violation
  294  and in the same manner as provided in this subsection.
  295         (3) If a person under 18 years of age is found by the court
  296  to have committed a third violation of s. 569.11 within 12 weeks
  297  of the first violation, the court must direct the Department of
  298  Highway Safety and Motor Vehicles to suspend or withhold
  299  issuance of his or her driver’s license or driving privilege for
  300  60 consecutive days. Any third violation of s. 569.11 not within
  301  the 12-week period after the first violation will be treated as
  302  a first violation and in the same manner as provided in
  303  subsection (2).
  304         Section 7. This act shall take effect July 1, 2014.