ENROLLED
       2016 Legislature                            CS for CS for SB 938
       
       
       
       
       
       
                                                              2016938er
    1  
    2         An act relating to the retail sale of
    3         dextromethorphan; providing definitions; prohibiting a
    4         manufacturer, distributor, or retailer, or its
    5         employees and representatives, from knowingly or
    6         willfully selling a finished drug product containing
    7         dextromethorphan to a person younger than 18 years of
    8         age; prohibiting a person younger than 18 years of age
    9         from purchasing a finished drug product containing
   10         dextromethorphan; requiring an employee or
   11         representative of a retailer making a retail sale of a
   12         finished drug product containing any quantity of
   13         dextromethorphan to obtain certain proof of age from
   14         the purchaser; providing an exception; providing
   15         penalties; providing requirements for imposing or
   16         disputing civil citations; specifying information to
   17         be provided in such citations; providing
   18         applicability; preempting local government regulation
   19         of dextromethorphan; providing an effective date.
   20          
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Restrictions on sale of dextromethorphan.-
   24         (1)As used in this section, the term:
   25         (a)“Finished drug product” means a drug legally marketed
   26  under the Federal Food, Drug, and Cosmetic Act that is in
   27  finished dosage form. For purposes of this paragraph, the term
   28  “drug” has the same meaning as provided in s. 499.003(18).
   29         (b)“Proof of age” means any document issued by a
   30  governmental agency that contains the date of birth and a
   31  description or photograph of the person purchasing the finished
   32  drug product. The term includes, but is not limited to, a
   33  passport, a driver license, or an identification card issued by
   34  this state, another state, or any branch of the United States
   35  Armed Forces.
   36         (2)(a)A manufacturer, distributor, or retailer, or its
   37  employees and representatives, may not knowingly or willfully
   38  sell a finished drug product containing any quantity of
   39  dextromethorphan to a person younger than 18 years of age.
   40         (b)A person younger than 18 years of age may not purchase
   41  a finished drug product containing any quantity of
   42  dextromethorphan.
   43         (3)An employee or representative of a retailer making a
   44  retail sale of a finished drug product containing any quantity
   45  of dextromethorphan must require and obtain proof of age from
   46  the purchaser before completing the sale, unless from the
   47  purchaser’s outward appearance the person making the sale would
   48  reasonably presume the purchaser to be 25 years of age or older.
   49         (4)(a)Each sales location of a manufacturer, distributor,
   50  or retailer whose employee or representative, during the course
   51  of the employee’s or representative’s employment or association
   52  with the manufacturer, distributor, or retailer, sells a
   53  finished drug product containing any quantity of
   54  dextromethorphan in violation of this section is subject to a
   55  written warning for an initial violation and, for each
   56  subsequent violation, a civil citation imposing a fine of not
   57  more than $100, which shall accrue and may be recovered in a
   58  civil action brought by the local jurisdiction. A manufacturer,
   59  distributor, or retailer who demonstrates a good faith effort to
   60  comply with this section is not subject to citation.
   61         (b)An employee or representative of a manufacturer,
   62  distributor, or retailer who, during the course of the
   63  employee’s or representative’s employment or association with
   64  the manufacturer, distributor, or retailer, sells a finished
   65  drug product containing any quantity of dextromethorphan in
   66  violation of this section is subject to a written warning.
   67         (c)A person who possesses or receives a finished drug
   68  product containing any quantity of dextromethorphan in violation
   69  of this section with the intent to distribute is subject to a
   70  civil citation imposing a fine of not more than $100 for each
   71  violation, which shall accrue and may be recovered in a civil
   72  action brought by the local jurisdiction. A civil citation
   73  issued to a person pursuant to this paragraph shall include
   74  information regarding how to dispute the citation and shall
   75  clearly state that the violation is a noncriminal violation.
   76         (5)A civil citation issued to a manufacturer, distributor,
   77  or retailer pursuant to this section shall be provided to the
   78  manager on duty at the time the citation is issued. If a manager
   79  is not available, a local law enforcement officer shall attempt
   80  to contact the manager to issue the citation. If the local law
   81  enforcement officer is unsuccessful in contacting the manager,
   82  he or she may leave a copy of the citation with an employee 18
   83  years of age or older and mail a copy of the citation by
   84  certified mail to the owner’s business address, as filed with
   85  the Department of State, or he or she may return to issue the
   86  citation at a later time. The civil citation shall provide:
   87         (a)The date and approximate time of the sale in violation
   88  of this section.
   89         (b)The location of the sale, including the address.
   90         (c)The name of the employee or representative that
   91  completed the sale.
   92         (d)Information regarding how to dispute the citation.
   93         (e)Notice that the violation is a noncriminal violation.
   94         (6)To dispute the citation, the recipient of the citation
   95  must provide notice of the dispute to the clerk of the county
   96  court in the jurisdiction in which the violation occurred within
   97  15 days after receipt of the citation. The local jurisdiction,
   98  through its duly authorized officers, shall hold a hearing in
   99  the court of competent jurisdiction when a citation for a
  100  violation of this section is issued, when the violation is
  101  disputed, and when the recipient is issued the citation by a
  102  local law enforcement officer employed by or acting on behalf of
  103  the jurisdiction. If the court finds in favor of the
  104  jurisdiction, the court shall require payment of the fine as
  105  provided in this section.
  106         (7)This section shall be applied uniformly throughout the
  107  state. Enforcement of this section shall remain with local law
  108  enforcement departments and officials charged with the
  109  enforcement of the laws of the state.
  110         (8)This section does not:
  111         (a)Impose any restriction on the placement of products in
  112  a retail store, direct access of customers to finished drug
  113  products, or the maintenance of transaction records.
  114         (b)Apply to a medication containing dextromethorphan that
  115  is sold by a retailer pursuant to a valid prescription.
  116         (c)Create a criminal violation. A person who violates this
  117  section commits a noncriminal violation as defined in s.
  118  775.08(3).
  119         (9)This section preempts any ordinance regulating the
  120  sale, distribution, receipt, or possession of dextromethorphan
  121  enacted by a county, municipality, or other political
  122  subdivision of the state, and dextromethorphan is not subject to
  123  further regulation by such political subdivisions.
  124         Section 2. This act shall take effect January 1, 2017.