Florida Senate - 2021 CS for CS for SB 1080
By the Committees on Health Policy; and Regulated Industries;
and Senator Hutson
588-03328-21 20211080c2
1 A bill to be entitled
2 An act relating to tobacco and nicotine products;
3 amending s. 210.095, F.S.; deleting the definition of
4 the term “adult”; revising age limitations relating to
5 mail order, Internet, and remote sales of tobacco
6 products; amending s. 210.15, F.S.; requiring permits
7 to be issued to persons or corporations whose officers
8 are not under 21 years of age; amending s. 386.212,
9 F.S.; providing that it is unlawful for persons under
10 21 years of age to smoke tobacco or vape in, on, or
11 within 1,000 feet of the real property comprising a
12 public or private elementary, middle, or secondary
13 school during specified hours; renaming ch. 569, F.S.;
14 providing directives to the Division of Law Revision;
15 amending s. 569.002, F.S.; defining the terms
16 “nicotine product” and “nicotine dispensing device”;
17 conforming provisions to changes made by the act;
18 creating s. 569.0025, F.S.; preempting the
19 establishment of the minimum age for purchasing and
20 possessing, and the regulation for the marketing,
21 sale, or delivery of, tobacco products to the state;
22 amending ss. 569.003, 569.004, and 569.006, F.S.;
23 conforming provisions to changes made by the act;
24 amending s. 569.007, F.S.; revising age limitations
25 relating to the sale and delivery of tobacco products;
26 revising applicability; amending s. 569.0075, F.S.;
27 revising age limitations relating to gifting sample
28 tobacco products; amending s. 569.008, F.S.; revising
29 legislative intent; revising qualification
30 requirements for responsible retail tobacco products
31 dealers; conforming provisions to changes made by the
32 act; amending s. 569.009, F.S.; conforming a provision
33 to changes made by the act; amending s. 569.101, F.S.;
34 revising age limitations relating to selling,
35 delivering, bartering, furnishing, or giving tobacco
36 products to certain persons; amending s. 569.11, F.S.;
37 revising age limitations relating to possessing and
38 obtaining tobacco products; amending s. 569.12, F.S.;
39 expanding the authority of tobacco product enforcement
40 officers to include nicotine products; amending s.
41 569.14, F.S.; revising requirements for signage
42 relating to tobacco products, nicotine products, and
43 nicotine dispensing devices; conforming provisions to
44 changes made by the act; amending s. 569.19, F.S.;
45 conforming provisions to changes made by the act;
46 creating s. 569.31, F.S.; defining terms; creating s.
47 569.315, F.S.; preempting the establishment of the
48 minimum age for purchasing and possessing, and the
49 regulation for the marketing, sale, or delivery of,
50 nicotine products to the state; creating s. 569.32,
51 F.S.; requiring retail nicotine product dealers to
52 acquire a permit; providing requirements and
53 authorizations for such permit; creating s. 569.33,
54 F.S.; specifying that an applicant for a retail
55 nicotine products dealer permit consents to certain
56 inspections and searches upon accepting such permit;
57 creating s. 569.34, F.S.; prohibiting certain persons,
58 firms, associations, or corporations from operating
59 without a permit; providing civil penalties; creating
60 s. 569.35, F.S.; providing administrative penalties
61 for retail nicotine product dealers under certain
62 circumstances; requiring the Division of Alcoholic
63 Beverages and Tobacco to deposit funds collected from
64 administrative fines into the General Revenue Fund;
65 creating s. 569.37, F.S.; providing restrictions on
66 the sale or delivery of nicotine products; creating s.
67 569.38, F.S.; prohibiting certain persons from gifting
68 sample nicotine products to persons under a specified
69 age; creating s. 569.381, F.S.; providing legislative
70 intent; providing requirements for a dealer to qualify
71 as a responsible retail nicotine products dealer;
72 authorizing the division to mitigate certain
73 penalties; requiring the division to develop and make
74 available a nicotine products training program;
75 requiring dealers to exercise diligence in the
76 management and supervision of their premises and the
77 supervision and training of certain persons; creating
78 s. 569.39, F.S.; requiring the division to adopt
79 rules; creating ss. 569.41 and 569.42, F.S.; providing
80 civil and criminal penalties relating to selling,
81 delivering, bartering, furnishing, or giving nicotine
82 products to certain persons and possessing and
83 acquiring nicotine products, respectively; creating s.
84 569.43, F.S.; providing signage requirements relating
85 to the sale of nicotine products or nicotine
86 dispensing devices; providing criminal penalties;
87 creating s. 569.44, F.S.; requiring the division to
88 provide an annual report containing specified
89 information to the Governor and the Legislature;
90 creating s. 569.45, F.S.; defining terms; providing
91 requirements for mail order, Internet, and remote
92 sales of nicotine products; providing applicability;
93 providing criminal penalties; repealing s. 877.112,
94 F.S., relating to nicotine products and nicotine
95 dispensing devices; providing an effective date.
96
97 Be It Enacted by the Legislature of the State of Florida:
98
99 Section 1. Paragraph (a) of subsection (1), paragraphs (a)
100 and (c) of subsection (2), paragraph (a) of subsection (3),
101 paragraph (a) of subsection (4), paragraphs (a) and (b) of
102 subsection (5), and paragraphs (a), (b), (e), and (g) of
103 subsection (8) of section 210.095, Florida Statutes, are amended
104 to read:
105 210.095 Mail order, Internet, and remote sales of tobacco
106 products; age verification.—
107 (1) For purposes of this section, the term:
108 (a) “Adult” means an individual who is at least of the
109 legal minimum purchase age for tobacco products.
110 (2)
111 (a) A sale of tobacco products constituting a delivery sale
112 pursuant to paragraph (1)(b) (1)(c) is a delivery sale
113 regardless of whether the person accepting the order for the
114 delivery sale is located inside or outside this state.
115 (c) A person may not make a delivery sale of tobacco
116 products to any individual who is not 21 years of age or older
117 an adult.
118 (3) A person may not mail, ship, or otherwise deliver
119 tobacco products in connection with an order for a delivery sale
120 unless, before the first delivery to the consumer, the person
121 accepting the order for the delivery sale:
122 (a) Obtains from the individual submitting the order a
123 certification that includes:
124 1. Reliable confirmation that the individual is 21 years of
125 age or older an adult; and
126 2. A statement signed by the individual in writing and
127 under penalty of perjury which:
128 a. Certifies the address and date of birth of the
129 individual; and
130 b. Confirms that the individual wants to receive delivery
131 sales from a tobacco company and understands that, under the
132 laws of this state, the following actions are illegal:
133 (I) Signing another individual’s name to the certification;
134 (II) Selling tobacco products to individuals under the
135 legal minimum purchase age; and
136 (III) Purchasing tobacco products, if the person making the
137 purchase is under the legal minimum purchase age.
138
139 In addition to the requirements of this subsection, a person
140 accepting an order for a delivery sale may request that a
141 consumer provide an electronic mail address.
142 (4) The notice described in paragraph (3)(c) must include
143 prominent and clearly legible statements that sales of tobacco
144 products are:
145 (a) Illegal if made to individuals who are not 21 years of
146 age or older adults.
147
148 The notice must include an explanation of how each tax has been,
149 or is to be, paid with respect to the delivery sale.
150 (5) Each person who mails, ships, or otherwise delivers
151 tobacco products in connection with an order for a delivery sale
152 must:
153 (a) Include as part of the shipping documents, in a clear
154 and conspicuous manner, the following statement: “Tobacco
155 Products: Florida law prohibits shipping to individuals under 21
156 18 years of age and requires the payment of all applicable
157 taxes.”
158 (b) Use a method of mailing, shipping, or delivery which
159 obligates the delivery service to require:
160 1. The individual submitting the order for the delivery
161 sale or another individual who is 21 years of age or older adult
162 who resides at the individual’s address to sign his or her name
163 to accept delivery of the shipping container. Proof of the legal
164 minimum purchase age of the individual accepting delivery is
165 required only if the individual appears to be under 30 27 years
166 of age.
167 2. Proof that the individual is either the addressee or the
168 individual who is 21 years of age or older adult designated by
169 the addressee, in the form of a valid, government-issued
170 identification card bearing a photograph of the individual who
171 signs to accept delivery of the shipping container.
172
173 If the person accepting a purchase order for a delivery sale
174 delivers the tobacco products without using a delivery service,
175 the person must comply with all of the requirements of this
176 section which apply to a delivery service. Any failure to comply
177 with a requirement of this section constitutes a violation
178 thereof.
179 (8)(a) Except as otherwise provided in this section, a
180 violation of this section by a person other than an individual
181 who is not 21 years of age or older an adult is a misdemeanor of
182 the first degree, punishable as provided in s. 775.082 or s.
183 775.083, and:
184 1. For a first violation of this section, the person shall
185 be fined $1,000 or five times the retail value of the tobacco
186 products involved in the violation, whichever is greater.
187 2. For a second or subsequent violation of this section,
188 the person shall be fined $5,000 or five times the retail value
189 of the tobacco products involved in the violation, whichever is
190 greater.
191 (b) A person who is 21 years of age or older an adult and
192 knowingly submits a false certification under subsection (3)
193 commits a misdemeanor of the first degree, punishable as
194 provided in s. 775.082 or s. 775.083. For each offense, the
195 person shall be fined $10,000 or five times the retail value of
196 the tobacco products involved in the violation, whichever is
197 greater.
198 (e) A person who, in connection with a delivery sale,
199 delivers tobacco products on behalf of a delivery service to an
200 individual who is not 21 years of age or older an adult commits
201 a misdemeanor of the second third degree, punishable as provided
202 in s. 775.082 or s. 775.083.
203 (g) An individual who is not 21 years of age or older an
204 adult and who knowingly violates any provision of this section
205 commits a misdemeanor of the second third degree, punishable as
206 provided in s. 775.082 or s. 775.083.
207 Section 2. Paragraph (b) of subsection (1) of section
208 210.15, Florida Statutes, is amended to read:
209 210.15 Permits.—
210 (1)
211 (b) Permits shall be issued only to persons of good moral
212 character who are not less than 21 18 years of age. Permits to
213 corporations shall be issued only to corporations whose officers
214 are of good moral character and not less than 21 18 years of
215 age. There shall be no exemptions from the permit fees herein
216 provided to any persons, association of persons, or corporation,
217 any law to the contrary notwithstanding.
218 Section 3. Subsection (1) of section 386.212, Florida
219 Statutes, is amended to read:
220 386.212 Smoking and vaping prohibited near school property;
221 penalty.—
222 (1) It is unlawful for any person under 21 18 years of age
223 to smoke tobacco or vape in, on, or within 1,000 feet of the
224 real property comprising a public or private elementary, middle,
225 or secondary school between the hours of 6 a.m. and midnight.
226 This section does not apply to any person occupying a moving
227 vehicle or within a private residence.
228 Section 4. Chapter 569, Florida Statutes, entitled “Tobacco
229 Products,” is renamed “Tobacco and Nicotine Products.”
230 Section 5. The Division of Law Revision is directed to:
231 (1) Create part I of chapter 569, Florida Statutes,
232 consisting of ss. 569.002-569.23, Florida Statutes, to be
233 entitled “Tobacco Products.”
234 (2) Create part II of chapter 569, Florida Statutes,
235 consisting of ss. 569.31-569.45, Florida Statutes, to be
236 entitled “Nicotine Products.”
237 Section 6. Section 569.002, Florida Statutes, is amended to
238 read:
239 569.002 Definitions.—As used in this part chapter, the
240 term:
241 (1) “Dealer” is synonymous with the term “retail tobacco
242 products dealer.”
243 (2) “Division” means the Division of Alcoholic Beverages
244 and Tobacco of the Department of Business and Professional
245 Regulation.
246 (3) “Nicotine product” has the same meaning as provided in
247 s. 569.31(4).
248 (4) “Nicotine dispensing device” has the same meaning as
249 provided in s. 569.31(3).
250 (5) “Permit” is synonymous with the term “retail tobacco
251 products dealer permit.”
252 (6)(4) “Retail tobacco products dealer” means the holder of
253 a retail tobacco products dealer permit.
254 (7)(5) “Retail tobacco products dealer permit” means a
255 permit issued by the division pursuant to s. 569.003.
256 (8)(6) “Tobacco products” includes loose tobacco leaves,
257 and products made from tobacco leaves, in whole or in part, and
258 cigarette wrappers, which can be used for smoking, sniffing, or
259 chewing.
260 (9)(7) “Any person under the age of 21 18” does not include
261 any person under the age of 21 18 who:
262 (a) Has had his or her disability of nonage removed under
263 chapter 743;
264 (b) Is in the military reserve or on active duty in the
265 Armed Forces of the United States;
266 (c) Is otherwise emancipated by a court of competent
267 jurisdiction and released from parental care and responsibility;
268 or
269 (b)(d) Is acting in his or her scope of lawful employment
270 with an entity licensed under the provisions of chapter 210 or
271 this part chapter.
272 Section 7. Section 569.0025, Florida Statutes, is created
273 to read:
274 569.0025 Preemption.—The establishment of the minimum age
275 for purchasing or possessing, and the regulation for the
276 marketing, sale, or delivery of, tobacco products is preempted
277 to the state.
278 Section 8. Paragraph (c) of subsection (1) of section
279 569.003, Florida Statutes, is amended to read:
280 569.003 Retail tobacco products dealer permits;
281 application; qualifications; fees; renewal; duplicates.—
282 (1)
283 (c) Permits shall be issued annually, upon payment of the
284 annual permit fee prescribed by the division. The division shall
285 fix the fee in an amount sufficient to meet the costs incurred
286 by it in carrying out its permitting, enforcement, and
287 administrative responsibilities under this part chapter, but the
288 fee may not exceed $50. The proceeds of the fee shall be
289 deposited into the Alcoholic Beverage and Tobacco Trust Fund.
290 Section 9. Section 569.004, Florida Statutes, is amended to
291 read:
292 569.004 Consent to inspection and search without warrant.
293 An applicant for a permit, by accepting the permit when issued,
294 agrees that the place or premises covered by the permit is
295 subject to inspection and search without a search warrant by the
296 division or its authorized assistants, and by sheriffs, deputy
297 sheriffs, or police officers, to determine compliance with this
298 chapter, including part II of this chapter if the applicant
299 deals, at retail, in nicotine products within the state or
300 allows a nicotine products vending machine to be located on its
301 premises within the state.
302 Section 10. Section 569.006, Florida Statutes, is amended
303 to read:
304 569.006 Retail tobacco products dealers; administrative
305 penalties.—The division may suspend or revoke the permit of the
306 dealer upon sufficient cause appearing of the violation of any
307 of the provisions of this chapter, including part II of this
308 chapter if the dealer deals, at retail, in nicotine products
309 within the state or allows a nicotine products vending machine
310 to be located on its premises within the state, by a dealer or
311 by a dealer’s agent or employee. The division may also assess
312 and accept administrative fines of up to $1,000 against a dealer
313 for each violation. The division shall deposit all fines
314 collected into the General Revenue Fund as collected. An order
315 imposing an administrative fine becomes effective 15 days after
316 the date of the order. The division may suspend the imposition
317 of a penalty against a dealer, conditioned upon the dealer’s
318 compliance with terms the division considers appropriate.
319 Section 11. Subsections (1) and (2) of section 569.007,
320 Florida Statutes, are amended to read:
321 569.007 Sale or delivery of tobacco products;
322 restrictions.—
323 (1) In order to prevent persons under 21 18 years of age
324 from purchasing or receiving tobacco products, the sale or
325 delivery of tobacco products is prohibited, except:
326 (a) When under the direct control or line of sight of the
327 dealer or the dealer’s agent or employee; or
328 (b) Sales from a vending machine are prohibited under the
329 provisions of paragraph (1)(a) and are only permissible from a
330 machine that is equipped with an operational lockout device
331 which is under the control of the dealer or the dealer’s agent
332 or employee who directly regulates the sale of items through the
333 machine by triggering the lockout device to allow the dispensing
334 of one tobacco product. The lockout device must include a
335 mechanism to prevent the machine from functioning if the power
336 source for the lockout device fails or if the lockout device is
337 disabled, and a mechanism to ensure that only one tobacco
338 product is dispensed at a time.
339 (2) The provisions of subsection (1) shall not apply to an
340 establishment that prohibits persons under 21 18 years of age on
341 the licensed premises.
342 Section 12. Section 569.0075, Florida Statutes, is amended
343 to read:
344 569.0075 Gift of sample tobacco products prohibited.—The
345 gift of sample tobacco products to any person under the age of
346 21 18 by an entity licensed or permitted under the provisions of
347 chapter 210 or this part chapter, or by an employee of such
348 entity, is prohibited and is punishable as provided in s.
349 569.101.
350 Section 13. Subsection (1), paragraphs (b) and (c) of
351 subsection (2), and subsection (3) of section 569.008, Florida
352 Statutes, are amended to read:
353 569.008 Responsible retail tobacco products dealers;
354 qualifications; mitigation of disciplinary penalties; diligent
355 management and supervision; presumption.—
356 (1) The Legislature intends to prevent the sale of tobacco
357 products to persons under 21 18 years of age and to encourage
358 retail tobacco products dealers to comply with responsible
359 practices in accordance with this section.
360 (2) To qualify as a responsible retail tobacco products
361 dealer, the dealer must establish and implement procedures
362 designed to ensure that the dealer’s employees comply with the
363 provisions of this part chapter. The dealer must provide a
364 training program for the dealer’s employees which addresses the
365 use and sale of tobacco products and which includes at least the
366 following topics:
367 (b) Methods of recognizing and handling customers under 21
368 18 years of age.
369 (c) Procedures for proper examination of identification
370 cards in order to verify that customers are not under 21 18
371 years of age.
372 (3) In determining penalties under s. 569.006, the division
373 may mitigate penalties imposed against a dealer because of an
374 employee’s illegal sale of a tobacco product to a person under
375 21 18 years of age if the following conditions are met:
376 (a) The dealer is qualified as a responsible dealer under
377 this section.
378 (b) The dealer provided the training program required under
379 subsection (2) to that employee before the illegal sale
380 occurred.
381 (c) The dealer had no knowledge of that employee’s
382 violation at the time of the violation and did not direct,
383 approve, or participate in the violation.
384 (d) If the sale was made through a vending machine, the
385 machine was equipped with an operational lock-out device.
386 Section 14. Section 569.009, Florida Statutes, is amended
387 to read:
388 569.009 Rulemaking authority.—The division shall adopt any
389 rules necessary to administer and enforce the provisions of this
390 part chapter.
391 Section 15. Section 569.101, Florida Statutes, is amended
392 to read:
393 569.101 Selling, delivering, bartering, furnishing, or
394 giving tobacco products to persons under 21 18 years of age;
395 criminal penalties; defense.—
396 (1) It is unlawful to sell, deliver, barter, furnish, or
397 give, directly or indirectly, to any person who is under 21 18
398 years of age, any tobacco product.
399 (2) Any person who violates subsection (1) commits a
400 misdemeanor of the second degree, punishable as provided in s.
401 775.082 or s. 775.083. However, any person who violates
402 subsection (1) for a second or subsequent time within 1 year of
403 the first violation, commits a misdemeanor of the first degree,
404 punishable as provided in s. 775.082 or s. 775.083.
405 (3) A person charged with a violation of subsection (1) has
406 a complete defense if, at the time the tobacco product was sold,
407 delivered, bartered, furnished, or given:
408 (a) The buyer or recipient falsely evidenced that she or he
409 was 21 18 years of age or older;
410 (b) The appearance of the buyer or recipient was such that
411 a prudent person would believe the buyer or recipient to be 21
412 18 years of age or older; and
413 (c) Such person carefully checked a driver license or an
414 identification card issued by this state or another state of the
415 United States, a passport, or a United States armed services
416 identification card presented by the buyer or recipient and
417 acted in good faith and in reliance upon the representation and
418 appearance of the buyer or recipient in the belief that the
419 buyer or recipient was 21 18 years of age or older.
420 Section 16. Section 569.11, Florida Statutes, is amended to
421 read:
422 569.11 Possession, misrepresenting age or military service
423 to purchase, and purchase of tobacco products by persons under
424 21 18 years of age prohibited; penalties; jurisdiction;
425 disposition of fines.—
426 (1) It is unlawful for any person under 21 18 years of age
427 to knowingly possess any tobacco product. Any person under 21 18
428 years of age who violates this subsection commits a noncriminal
429 violation as provided in s. 775.08(3), punishable by:
430 (a) For a first violation, 16 hours of community service
431 or, instead of community service, a $25 fine. In addition, the
432 person must attend a school-approved anti-tobacco program, if
433 locally available; or
434 (b) For a second or subsequent violation within 12 weeks
435 after the first violation, a $25 fine.
436
437 Any second or subsequent violation not within the 12-week period
438 after the first violation is punishable as provided for a first
439 violation.
440 (2) It is unlawful for any person under 21 18 years of age
441 to misrepresent his or her age or military service for the
442 purpose of inducing a dealer or an agent or employee of the
443 dealer to sell, give, barter, furnish, or deliver any tobacco
444 product, or to purchase, or attempt to purchase, any tobacco
445 product from a person or a vending machine. Any person under 21
446 18 years of age who violates this subsection commits a
447 noncriminal violation as provided in s. 775.08(3), punishable
448 by:
449 (a) For a first violation, 16 hours of community service
450 or, instead of community service, a $25 fine and, in addition,
451 the person must attend a school-approved anti-tobacco program,
452 if available; or
453 (b) For a second or subsequent violation within 12 weeks
454 after the first violation, a $25 fine.
455
456 Any second or subsequent violation not within the 12-week period
457 after the first violation is punishable as provided for a first
458 violation.
459 (3) Any person under 21 18 years of age cited for
460 committing a noncriminal violation under this section must sign
461 and accept a civil citation indicating a promise to appear
462 before the county court or comply with the requirement for
463 paying the fine and must attend a school-approved anti-tobacco
464 program, if locally available. If a fine is assessed for a
465 violation of this section, the fine must be paid within 30 days
466 after the date of the citation or, if a court appearance is
467 mandatory, within 30 days after the date of the hearing.
468 (4) A person charged with a noncriminal violation under
469 this section must appear before the county court or comply with
470 the requirement for paying the fine. The court, after a hearing,
471 shall make a determination as to whether the noncriminal
472 violation was committed. If the court finds the violation was
473 committed, it shall impose an appropriate penalty as specified
474 in subsection (1) or subsection (2). A person who participates
475 in community service shall be considered an employee of the
476 state for the purpose of chapter 440, for the duration of such
477 service.
478 (5)(a) If a person under 21 18 years of age is found by the
479 court to have committed a noncriminal violation under this
480 section and that person has failed to complete community
481 service, pay the fine as required by paragraph (1)(a) or
482 paragraph (2)(a), or attend a school-approved anti-tobacco
483 program, if locally available, the court may direct the
484 Department of Highway Safety and Motor Vehicles to withhold
485 issuance of or suspend the driver license or driving privilege
486 of that person for a period of 30 consecutive days.
487 (b) If a person under 21 18 years of age is found by the
488 court to have committed a noncriminal violation under this
489 section and that person has failed to pay the applicable fine as
490 required by paragraph (1)(b) or paragraph (2)(b), the court may
491 direct the Department of Highway Safety and Motor Vehicles to
492 withhold issuance of or suspend the driver license or driving
493 privilege of that person for a period of 45 consecutive days.
494 (6) Eighty percent of all civil penalties received by a
495 county court pursuant to this section shall be remitted by the
496 clerk of the court to the Department of Revenue for transfer to
497 the Department of Education to provide for teacher training and
498 for research and evaluation to reduce and prevent the use of
499 tobacco products by children. The remaining 20 percent of civil
500 penalties received by a county court pursuant to this section
501 shall remain with the clerk of the county court to cover
502 administrative costs.
503 Section 17. Section 569.12, Florida Statutes, is amended to
504 read:
505 569.12 Jurisdiction; tobacco product and nicotine product
506 enforcement officers or agents; enforcement.—
507 (1) In addition to the Division of Alcoholic Beverages and
508 Tobacco of the Department of Business and Professional
509 Regulation, any law enforcement officer certified under s.
510 943.10(1), (6), or (8) shall enforce the provisions of this
511 chapter.
512 (2)(a) A county or municipality may designate certain of
513 its employees or agents as tobacco product and nicotine product
514 enforcement officers. The training and qualifications of the
515 employees or agents for such designation shall be determined by
516 the county or the municipality. Nothing in this section shall be
517 construed to permit the carrying of firearms or other weapons by
518 a tobacco product and nicotine product enforcement agent, nor
519 does designation as a tobacco product and nicotine product
520 enforcement officer provide the employee or agent with the power
521 of arrest or subject the employee or agent to the provisions of
522 ss. 943.085-943.255. Nothing in this section amends, alters, or
523 contravenes the provisions of any state-administered retirement
524 system or any state-supported retirement system established by
525 general law.
526 (b) A tobacco and nicotine product enforcement officer is
527 authorized to issue a citation to a person under the age of 21
528 18 when, based upon personal investigation, the officer has
529 reasonable cause to believe that the person has committed a
530 civil infraction in violation of s. 386.212, or s. 569.11, or s.
531 569.42.
532 (3) A correctional probation officer as defined in s.
533 943.10(3) is authorized to issue a citation to a person under
534 the age of 21 18 when, based upon personal investigation, the
535 officer has reasonable cause to believe that the person has
536 committed a civil infraction in violation of s. 569.11 or s.
537 569.42.
538 (4) A citation issued to any person violating the
539 provisions of s. 569.11 or s. 569.42 shall be in a form
540 prescribed by the Division of Alcoholic Beverages and Tobacco of
541 the Department of Business and Professional Regulation and shall
542 contain:
543 (a) The date and time of issuance.
544 (b) The name and address of the person to whom the citation
545 is issued.
546 (c) The date and time the civil infraction was committed.
547 (d) The facts constituting reasonable cause.
548 (e) The number of the Florida statute violated.
549 (f) The name and authority of the citing officer.
550 (g) The procedure for the person to follow in order to
551 contest the citation, perform the required community service,
552 attend the required anti-tobacco or anti-tobacco and anti
553 nicotine program, or to pay the civil penalty.
554 Section 18. Section 569.14, Florida Statutes, is amended to
555 read:
556 569.14 Posting of a sign stating that the sale of tobacco
557 products or nicotine products to persons under 21 18 years of
558 age is unlawful; enforcement; penalty.—
559 (1) A dealer that sells tobacco products shall post a clear
560 and conspicuous sign in each place of business where such
561 products are sold which substantially states the following:
562
563 THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
564 OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
565 REQUIRED FOR PURCHASE.
566
567 (2) A dealer that sells tobacco products and nicotine
568 products or nicotine dispensing devices, as defined in s.
569 877.112, may use a sign that substantially states the following:
570
571 THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
572 NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
573 OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
574 REQUIRED FOR PURCHASE.
575
576 A dealer that uses a sign as described in this subsection meets
577 the signage requirements of subsection (1) and s. 569.43(1) s.
578 877.112.
579 (3) The division shall make available to dealers of tobacco
580 products signs that meet the requirements of subsection (1) or
581 subsection (2).
582 (4) Any dealer that sells tobacco products shall provide at
583 the checkout counter in a location clearly visible to the dealer
584 or the dealer’s agent or employee instructional material in a
585 calendar format or similar format to assist in determining
586 whether a person is of legal age to purchase tobacco products.
587 This point of sale material must contain substantially the
588 following language:
589
590 IF YOU WERE NOT BORN BEFORE THIS DATE
591 (insert date and applicable year)
592 YOU CANNOT BUY TOBACCO PRODUCTS, NICOTINE PRODUCTS,
593 OR NICOTINE DISPENSING DEVICES.
594
595 Upon approval by the division, in lieu of a calendar a dealer
596 may use card readers, scanners, or other electronic or automated
597 systems that can verify whether a person is of legal age to
598 purchase tobacco products. Failure to comply with the provisions
599 contained in this subsection shall result in imposition of
600 administrative penalties as provided in s. 569.006.
601 (5) The division, through its agents and inspectors, shall
602 enforce this section.
603 (6) Any person who fails to comply with subsection (1) is
604 guilty of a misdemeanor of the second degree, punishable as
605 provided in s. 775.082 or s. 775.083.
606 Section 19. Section 569.19, Florida Statutes, is amended to
607 read:
608 569.19 Annual report.—The division shall report annually
609 with written findings to the Legislature and the Governor by
610 December 31, on the progress of implementing the enforcement
611 provisions of this part chapter. This must include, but is not
612 limited to:
613 (1) The number and results of compliance visits.
614 (2) The number of violations for failure of a retailer to
615 hold a valid license.
616 (3) The number of violations for selling tobacco products
617 to persons under age 21 18, and the results of administrative
618 hearings on the above and related issues.
619 (4) The number of persons under age 21 18 cited for
620 violations of s. 569.11 and sanctions imposed as a result of
621 citation.
622 Section 20. Section 569.31, Florida Statutes, is created to
623 read:
624 569.31 Definitions.—As used in this part, the term:
625 (1) “Dealer” is synonymous with the term “retail nicotine
626 products dealer.”
627 (2) “Division” means the Division of Alcoholic Beverages
628 and Tobacco of the Department of Business and Professional
629 Regulation.
630 (3) “Nicotine dispensing device” means any product that
631 employs an electronic, chemical, or mechanical means to produce
632 vapor or aerosol from a nicotine product, including, but not
633 limited to, an electronic cigarette, electronic cigar,
634 electronic cigarillo, electronic pipe, or other similar device
635 or product, any replacement cartridge for such device, and any
636 other container of nicotine in a solution or other form intended
637 to be used with or within an electronic cigarette, electronic
638 cigar, electronic cigarillo, electronic pipe, or other similar
639 device or product.
640 (4) “Nicotine product” means any product that contains
641 nicotine, including liquid nicotine, which is intended for human
642 consumption, whether inhaled, chewed, absorbed, dissolved, or
643 ingested by any means. The term also includes any nicotine
644 dispensing device. The term does not include a:
645 (a) Tobacco product, as defined in s. 569.002;
646 (b) Product regulated as a drug or device by the United
647 States Food and Drug Administration under Chapter V of the
648 Federal Food, Drug, and Cosmetic Act; or
649 (c) Product that contains incidental nicotine.
650 (5) “Permit” is synonymous with the term “retail nicotine
651 products dealer permit.”
652 (6) “Retail nicotine products dealer” means the holder of a
653 retail nicotine products dealer permit.
654 (7) “Retail nicotine products dealer permit” means a permit
655 issued by the division under s. 569.32.
656 (8) “Self-service merchandising” means the open display of
657 nicotine products, whether packaged or otherwise, for direct
658 retail customer access and handling before purchase without the
659 intervention or assistance of the dealer or the dealer’s owner,
660 employee, or agent. An open display of such products and devices
661 includes the use of an open display unit.
662 (9) “Any person under the age of 21” does not include any
663 person under the age of 21 who:
664 (a) Is in the military reserve or on active duty in the
665 Armed Forces of the United States; or
666 (b) Is acting in his or her scope of lawful employment.
667 Section 21. Section 569.315, Florida Statutes, is created
668 to read:
669 569.315 Preemption.—The establishment of the minimum age
670 for purchasing or possessing, and the regulation for the
671 marketing, sale, or delivery of, nicotine products is preempted
672 to the state.
673 Section 22. Section 569.32, Florida Statutes, is created to
674 read:
675 569.32 Retail nicotine products dealer permits;
676 application; qualifications; renewal; duplicates.—
677 (1)(a) Each person, firm, association, or corporation that
678 seeks to deal, at retail, in nicotine products within the state,
679 or to allow a nicotine products vending machine to be located on
680 its premises in the state, must obtain a retail nicotine
681 products dealer permit for each place of business or premises at
682 which nicotine products are sold. Each dealer owning, leasing,
683 furnishing, or operating vending machines through which nicotine
684 products are sold must obtain a permit for each machine and
685 shall post the permit in a conspicuous place on or near the
686 machine; however, if the dealer has more than one vending
687 machine at a single location or if nicotine products are sold
688 both over the counter and through a vending machine at a single
689 location, the dealer need obtain only one permit for that
690 location.
691 (b) Application for a permit must be made on a form
692 furnished by the division and must set forth the name under
693 which the applicant transacts or intends to transact business,
694 the address of the location of the applicant’s place of business
695 within the state, and any other information the division
696 requires. If the applicant has or intends to have more than one
697 place of business dealing in nicotine products within the state,
698 a separate application must be made for each place of business.
699 If the applicant is a firm or an association, the application
700 must set forth the names and addresses of the persons
701 constituting the firm or association; if the applicant is a
702 corporation, the application must set forth the names and
703 addresses of the principal officers of the corporation. The
704 application must also set forth any other information prescribed
705 by the division for the purpose of identifying the applicant
706 firm, association, or corporation. The application must be
707 signed and verified by oath or affirmation by the owner, if a
708 sole proprietor, or, if the owner is a firm, association, or
709 partnership, by the members or partners thereof, or, if the
710 owner is a corporation, by an executive officer of the
711 corporation or by a person authorized by the corporation to sign
712 the application, together with the written evidence of this
713 authority.
714 (2)(a) Permits may be issued only to persons who are 21
715 years of age or older or to corporations the officers of which
716 are 21 years of age or older.
717 (b) The division may refuse to issue a permit to any
718 person, firm, association, or corporation the permit of which
719 has been revoked, to any corporation an officer of which has had
720 his or her permit revoked, or to any person who is or has been
721 an officer of a corporation the permit of which has been
722 revoked. Any permit issued to a firm, association, or
723 corporation prohibited from obtaining a permit under this
724 chapter shall be revoked by the division.
725 (3) Upon approval of an application for a permit, the
726 division shall issue to the applicant a permit for the place of
727 business or premises specified in the application. A permit is
728 not assignable and is valid only for the person in whose name
729 the permit is issued and for the place designated in the permit.
730 The permit shall be conspicuously displayed at all times at the
731 place for which issued.
732 Section 23. Section 569.33 Florida Statutes, is created to
733 read:
734 569.33 Consent to inspection and search without warrant.—An
735 applicant for a retail nicotine products dealer permit, by
736 accepting the permit when issued, agrees that the place or
737 premises covered by the permit is subject to inspection and
738 search without a search warrant by the division or its
739 authorized assistants, and by sheriffs, deputy sheriffs, or
740 police officers, to determine compliance with this part.
741 Section 24. Section 569.34, Florida Statutes, is created to
742 read:
743 569.34 Operating without a retail nicotine products dealer
744 permit; penalty.—
745 (1) It is unlawful for a person, firm, association, or
746 corporation to deal, at retail, in nicotine products, in any
747 manner, or to allow a nicotine products vending machine to be
748 located on its premises, without having a retail nicotine
749 product dealer permit as required by s. 569.32. A person who
750 violates this section commits a noncriminal violation,
751 punishable by a fine of not more than $500.
752 (2) A retail tobacco products dealer, as defined in s.
753 569.002(4), is not required to have a separate or additional
754 retail nicotine products dealer permit to deal, at retail, in
755 nicotine products within the state, or allow a nicotine products
756 vending machine to be located on its premises in the state. Any
757 retail tobacco products dealer that deals, at retail, in
758 nicotine products or allows a tobacco products vending machine
759 to be located on its premises in the state, is subject to, and
760 must be in compliance with, this part.
761 (3) Any person who violates this section shall be cited for
762 such infraction and shall be cited to appear before the county
763 court. The citation may indicate the time, date, and location of
764 the scheduled hearing and must indicate that the penalty for a
765 noncriminal violation is a fine of not more than $500.
766 (a) A person cited for an infraction under this section
767 may:
768 1. Post a $500 bond; or
769 2. Sign and accept the citation indicating a promise to
770 appear.
771 (b) A person cited for violating this section may:
772 1. Pay the fine, either by mail or in person, within 10
773 days after receiving the citation; or
774 2. If the person has posted bond, forfeit the bond by not
775 appearing at the scheduled hearing.
776 (c) If the person pays the fine or forfeits bond, the
777 person is deemed to have admitted violating this section and to
778 have waived the right to a hearing on the issue of commission of
779 the violation. Such admission may not be used as evidence in any
780 other proceeding.
781 (d) The court, after a hearing, shall make a determination
782 as to whether an infraction has been committed. If the
783 commission of an infraction has been proven beyond a reasonable
784 doubt, the court may impose a civil penalty in an amount that
785 may not exceed $500.
786 (e) If a person is found by the court to have committed the
787 infraction, that person may appeal that finding to the circuit
788 court.
789 Section 25. Section 569.35, Florida Statutes, is created to
790 read:
791 569.35 Retail nicotine product dealers; administrative
792 penalties.—The division may suspend or revoke the permit of a
793 dealer, including the retail tobacco products dealer permit of a
794 retail tobacco products dealer as defined in s. 569.002(4), upon
795 sufficient cause appearing of the violation of any of the
796 provisions of this part, by a dealer, or by a dealer’s agent or
797 employee. The division may also assess and accept an
798 administrative fine of up to $1,000 against a dealer for each
799 violation. The division shall deposit all fines collected into
800 the General Revenue Fund as collected. An order imposing an
801 administrative fine becomes effective 15 days after the date of
802 the order. The division may suspend the imposition of a penalty
803 against a dealer, conditioned upon the dealer’s compliance with
804 terms the division considers appropriate.
805 Section 26. Section 569.37, Florida Statutes, is created to
806 read:
807 569.37 Sale or delivery of nicotine products;
808 restrictions.—
809 (1) In order to prevent persons under 21 years of age from
810 purchasing or receiving nicotine products, the sale or delivery
811 of nicotine products is prohibited, except:
812 (a) When under the direct control or line of sight of the
813 dealer or the dealer’s agent or employee; or
814 (b) Sales from a vending machine are prohibited under
815 paragraph (a) and are only permissible from a machine that is
816 equipped with an operational lockout device that is under the
817 control of the dealer or the dealer’s agent or employee who
818 directly regulates the sale of items through the machine by
819 triggering the lockout device to allow the dispensing of one
820 nicotine product. The lockout device must include a mechanism to
821 prevent the machine from functioning if the power source for the
822 lockout device fails or if the lockout device is disabled, and a
823 mechanism to ensure that only one nicotine product is dispensed
824 at a time.
825 (2)(a) A dealer that sells nicotine products may not sell,
826 permit to be sold, offer for sale, or display for sale such
827 products or devices by means of self-service merchandising.
828 (b) A dealer that sells nicotine products may not place
829 such products or devices in an open display unit unless the unit
830 is located in an area that is inaccessible to customers.
831 (3) The provisions of subsections (1) and (2) shall not
832 apply to an establishment that prohibits persons under 21 years
833 of age on the licensed premises.
834 (4) A dealer or a dealer’s agent or employee may require
835 proof of age of a purchaser of a nicotine product before selling
836 the product to that person.
837 Section 27. Section 569.38, Florida Statutes, is created to
838 read:
839 569.38 Gift of sample nicotine products and nicotine
840 dispensing devices.—The gift of sample nicotine products to any
841 person under the age of 21 by an entity permitted under this
842 part, or by an employee of such entity, is prohibited and is
843 punishable as provided in s. 569.41.
844 Section 28. Section 569.381, Florida Statutes, is created
845 to read:
846 569.381 Responsible retail nicotine products dealers;
847 qualifications; mitigation of disciplinary penalties; diligent
848 management and supervision; presumption.—
849 (1) It is the intent of the Legislature to prevent the sale
850 of nicotine products to persons under 21 years of age and to
851 encourage retail nicotine products dealers to comply with
852 responsible practices in accordance with this section.
853 (2) To qualify as a responsible retail nicotine products
854 dealer, the dealer must establish and implement procedures
855 designed to ensure that the dealer’s employees comply with this
856 part. The dealer must provide a training program for the
857 dealer’s employees which addresses the use and sale of nicotine
858 products and which includes at least the following topics:
859 (a) Laws covering the sale of nicotine products.
860 (b) Methods of recognizing and handling customers under 21
861 years of age.
862 (c) Procedures for proper examination of identification
863 cards in order to verify that customers are not under 21 years
864 of age.
865 (d) The use of the age audit identification function on
866 electronic point-of-sale equipment, where available.
867 (3) In determining penalties under s. 569.35, the division
868 may mitigate penalties imposed against a dealer because of an
869 employee’s illegal sale of a nicotine product to a person under
870 21 years of age if the following conditions are met:
871 (a) The dealer is qualified as a responsible dealer under
872 this section.
873 (b) The dealer provided the training program required under
874 subsection (2) to that employee before the illegal sale
875 occurred.
876 (c) The dealer had no knowledge of that employee’s
877 violation at the time of the violation and did not direct,
878 approve, or participate in the violation.
879 (d) If the sale was made through a vending machine, the
880 machine was equipped with an operational lock-out device.
881 (4) The division shall develop and make available a model
882 nicotine products training program designed to ensure adherence
883 to this part by dealers and their employees which, if followed,
884 will qualify dealers as responsible dealers.
885 (5) Dealers shall exercise diligence in the management and
886 supervision of their premises and in the supervision and
887 training of their employees, agents, or servants. In proceedings
888 to impose penalties under s. 569.35, proof that employees,
889 agents, or servants of the dealer, while in the scope of their
890 employment, committed at least three violations of s. 569.41
891 during a 180-day period shall be prima facie evidence of a lack
892 of due diligence by the dealer in the management and supervision
893 of his or her premises and in the supervision and training of
894 employees, agents, officers, or servants.
895 (6) The division may consider qualification as a
896 responsible retail nicotine products dealer under this section
897 as evidence that the dealer properly exercised the diligence
898 required under this section.
899 Section 29. Section 569.39, Florida Statutes, is created to
900 read:
901 569.39 Rulemaking authority.—The division shall adopt rules
902 to administer and enforce this part.
903 Section 30. Section 569.41, Florida Statutes, is created to
904 read:
905 569.41 Selling, delivering, bartering, furnishing, or
906 giving nicotine products to persons under 21 years of age;
907 criminal penalties; defense.—
908 (1) It is unlawful to sell, deliver, barter, furnish, or
909 give, directly or indirectly, to any person who is under 21
910 years of age, any nicotine product.
911 (2) Any person who violates subsection (1) commits a
912 misdemeanor of the second degree, punishable as provided in s.
913 775.082 or s. 775.083. However, any person who violates
914 subsection (1) for a second or subsequent time within 1 year
915 after the first violation commits a misdemeanor of the first
916 degree, punishable as provided in s. 775.082 or s. 775.083.
917 (3) A person charged with a violation of subsection (1) has
918 a complete defense if, at the time the nicotine product was
919 sold, delivered, bartered, furnished, or given:
920 (a) The buyer or recipient falsely evidenced that she or he
921 was 21 years of age or older;
922 (b) The appearance of the buyer or recipient was such that
923 a prudent person would believe the buyer or recipient to be 21
924 years of age or older; and
925 (c) Such person carefully checked a driver license or an
926 identification card issued by the state or another state of the
927 United States, a passport, or a United States armed services
928 identification card presented by the buyer or recipient and
929 acted in good faith and in reliance upon the representation and
930 appearance of the buyer or recipient in the belief that the
931 buyer or recipient was 21 years of age or older.
932 Section 31. Section 569.42, Florida Statutes, is created to
933 read:
934 569.42 Possession, misrepresenting age or military service
935 to purchase, and purchase of nicotine products by persons under
936 21 years of age prohibited; penalties; jurisdiction; disposition
937 of fines.—
938 (1) It is unlawful for any person under 21 years of age to
939 knowingly possess any nicotine product. Any person under 21
940 years of age who violates this subsection commits a noncriminal
941 violation as provided in s. 775.08(3), punishable by:
942 (a) For a first violation, 16 hours of community service
943 or, instead of community service, a $25 fine. In addition, the
944 person must attend a school-approved anti-tobacco and anti
945 nicotine program, if locally available; or
946 (b) For a second or subsequent violation within 12 weeks
947 after the first violation, a $25 fine.
948
949 Any second or subsequent violation not within the 12-week period
950 after the first violation is punishable as provided for a first
951 violation.
952 (2) It is unlawful for any person under 21 years of age to
953 misrepresent his or her age or military service for the purpose
954 of inducing a dealer or an agent or employee of the dealer to
955 sell, give, barter, furnish, or deliver any nicotine product, or
956 to purchase, or attempt to purchase, any nicotine product from a
957 person or a vending machine. Any person under 21 years of age
958 who violates this subsection commits a noncriminal violation as
959 defined in s. 775.08(3), punishable by:
960 (a) For a first violation, 16 hours of community service
961 or, instead of community service, a $25 fine and, in addition,
962 the person must attend a school-approved anti-tobacco and anti
963 nicotine program, if available; or
964 (b) For a second or subsequent violation within 12 weeks
965 after the first violation, a $25 fine.
966
967 Any second or subsequent violation not within the 12-week period
968 after the first violation is punishable as provided for a first
969 violation.
970 (3) Any person under 21 years of age cited for committing a
971 noncriminal violation under this section must sign and accept a
972 civil citation indicating a promise to appear before the county
973 court or comply with the requirement for paying the fine and
974 must attend a school-approved anti-tobacco and anti-nicotine
975 program, if locally available. If a fine is assessed for a
976 violation of this section, the fine must be paid within 30 days
977 after the date of the citation or, if a court appearance is
978 mandatory, within 30 days after the date of the hearing.
979 (4) A person charged with a noncriminal violation under
980 this section must appear before the county court or comply with
981 the requirement for paying the fine. The court, after a hearing,
982 shall make a determination as to whether the noncriminal
983 violation was committed. If the court finds the violation was
984 committed, it shall impose an appropriate penalty as specified
985 in subsection (1) or subsection (2). A person who participates
986 in community service shall be considered an employee of the
987 state for the purpose of chapter 440, for the duration of such
988 service.
989 (5)(a) If a person under 21 years of age is found by the
990 court to have committed a noncriminal violation under this
991 section and the person has failed to complete community service,
992 pay the fine as required by paragraph (1)(a) or paragraph
993 (2)(a), or attend a school-approved anti-tobacco and anti
994 nicotine program, if locally available, the court may direct the
995 Department of Highway Safety and Motor Vehicles to withhold
996 issuance of or suspend the driver license or driving privilege
997 of that person for a period of 30 consecutive days.
998 (b) If a person under 21 years of age is found by the court
999 to have committed a noncriminal violation under this section and
1000 that person has failed to pay the applicable fine as required by
1001 paragraph (1)(b) or paragraph (2)(b), the court may direct the
1002 Department of Highway Safety and Motor Vehicles to withhold
1003 issuance of or suspend the driver license or driving privilege
1004 of that person for a period of 45 consecutive days.
1005 (6) Eighty percent of all civil penalties received by a
1006 county court under this section shall be remitted by the clerk
1007 of the court to the Department of Revenue for transfer to the
1008 Department of Education to provide for teacher training and for
1009 research and evaluation to reduce and prevent the use of
1010 nicotine products by children. The remaining 20 percent of civil
1011 penalties received by a county court under this section shall
1012 remain with the clerk of the county court to cover
1013 administrative costs.
1014 Section 32. Section 569.43, Florida Statutes, is created to
1015 read:
1016 569.43 Posting of a sign stating that the sale of nicotine
1017 products or nicotine dispensing devices to persons under 21
1018 years of age is unlawful; enforcement; penalty.—
1019 (1) A dealer that sells nicotine products shall post a
1020 clear and conspicuous sign in each place of business at which
1021 such products are sold which substantially states the following:
1022
1023 THE SALE OF NICOTINE PRODUCTS OR NICOTINE DISPENSING
1024 DEVICES TO PERSONS UNDER THE AGE OF 21 IS AGAINST
1025 FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
1026
1027 (2) The division shall make available to dealers of
1028 nicotine products signs that meet the requirements of subsection
1029 (1).
1030 (3) Any dealer that sells nicotine products shall provide
1031 at the checkout counter in a location clearly visible to the
1032 dealer or the dealer’s agent or employee instructional material
1033 in a calendar format or similar format to assist in determining
1034 whether a person is of legal age to purchase nicotine products.
1035 This point of sale material must contain substantially the
1036 following language:
1037
1038 IF YOU WERE NOT BORN BEFORE THIS DATE
1039 (insert date and applicable year)
1040 YOU CANNOT BUY TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR NICOTINE
1041 DISPENSING DEVICES.
1042
1043 Upon approval by the division, in lieu of a calendar a dealer
1044 may use card readers, scanners, or other electronic or automated
1045 systems that can verify whether a person is of legal age to
1046 purchase nicotine products. Failure to comply with the
1047 provisions contained in this subsection shall result in
1048 imposition of administrative penalties as provided in s. 569.35.
1049 (4) The division, through its agents and inspectors, shall
1050 enforce this section.
1051 (5) Any person who fails to comply with subsection (1)
1052 commits a misdemeanor of the second degree, punishable as
1053 provided in s. 775.082 or s. 775.083.
1054 Section 33. Section 569.44, Florida Statutes, is created to
1055 read:
1056 569.44 Annual report.—The division shall report annually
1057 with written findings to the Legislature and the Governor by
1058 December 31, on the progress of implementing the enforcement
1059 provisions of this part. This must include, but is not limited
1060 to:
1061 (1) The number and results of compliance visits.
1062 (2) The number of violations for failure of a retailer to
1063 hold a valid permit.
1064 (3) The number of violations for selling nicotine products
1065 to persons under age 21, and the results of administrative
1066 hearings on the above and related issues.
1067 (4) The number of persons under age 21 cited for violations
1068 of s. 569.42 and sanctions imposed as a result of citation.
1069 Section 34. Section 569.45, Florida Statutes, is created to
1070 read:
1071 569.45 Mail order, Internet, and remote sales of nicotine
1072 products; age verification.—
1073 (1) For purposes of this section, the term:
1074 (a) “Consumer” means a person in the state who comes into
1075 possession of any nicotine product who, at the time of
1076 possession, is not intending to sell or distribute the nicotine
1077 product, or is not a retailer.
1078 (b) “Delivery sale” means any sale of nicotine products to
1079 a consumer in the state for which:
1080 1. The consumer submits the order for the sale by
1081 telephonic or other voice transmission, mail, delivery service,
1082 or the Internet or other online service; or
1083 2. The nicotine products are delivered by use of mail or a
1084 delivery service.
1085 (c) “Delivery service” means any person engaged in the
1086 commercial delivery of letters, packages, or other containers.
1087 (d) “Legal minimum purchase age” means the minimum age at
1088 which an individual may legally purchase nicotine products in
1089 the state.
1090 (e) “Retailer” means any person who is required to obtain a
1091 retail nicotine products dealer permit or a retail tobacco
1092 products dealer permit, as defined in s. 569.002.
1093 (f) “Shipping container” means a container in which
1094 nicotine products are shipped in connection with a delivery
1095 sale.
1096 (g) “Shipping document” means a bill of lading, airbill,
1097 United States Postal Service form, or any other document used to
1098 verify the undertaking by a delivery service to deliver letters,
1099 packages, or other containers.
1100 (2)(a) A sale of nicotine products constituting a delivery
1101 sale under paragraph (1)(c) is a delivery sale regardless of
1102 whether the person accepting the order for the delivery sale is
1103 located inside or outside the state.
1104 (b) A retailer must obtain a retail nicotine products
1105 dealer permit or a retail tobacco products dealer permit, as
1106 defined in s. 569.002, from the division under the requirements
1107 of this chapter before accepting an order for a delivery sale.
1108 (c) A person may not make a delivery sale of nicotine
1109 products to any individual who is not 21 years of age or older.
1110 (d) Each person accepting an order for a delivery sale must
1111 comply with each of the following:
1112 1. The age verification requirements set forth in
1113 subsection (3).
1114 2. The disclosure requirements set forth in subsection (4).
1115 3. The shipping requirements set forth in subsection (5).
1116 (3) A person may not mail, ship, or otherwise deliver
1117 nicotine products in connection with an order for a delivery
1118 sale unless, before the first delivery to the consumer, the
1119 person accepting the order for the delivery sale:
1120 (a) Obtains from the person submitting the order a
1121 certification that includes:
1122 1. Reliable confirmation that the person is 21 years of age
1123 or older; and
1124 2. A statement signed by the person in writing and under
1125 penalty of perjury which:
1126 a. Certifies the address and date of birth of the person;
1127 and
1128 b. Confirms that the person wants to receive delivery sales
1129 from a nicotine products company and understands that, under the
1130 laws of the state, the following actions are illegal:
1131 (I) Signing another person’s name to the certification;
1132 (II) Selling nicotine products to individuals who are not
1133 21 years of age or older; and
1134 (III) Purchasing nicotine products, if the person making
1135 the purchase is not 21 years of age or older.
1136 (b) Makes a good faith effort to verify the information
1137 contained in the certification provided by the individual under
1138 paragraph (a) against a commercially available database that may
1139 be reasonably relied upon for accurate age information or
1140 obtains a photocopy or other image of a valid government-issued
1141 identification card stating the date of birth or age of the
1142 individual.
1143 (c) Provides to the individual, via electronic mail or
1144 other means, a notice meeting the requirements of subsection
1145 (4).
1146 (d) If an order for nicotine products is made pursuant to
1147 an advertisement on the Internet, receives payment for the
1148 delivery sale from the consumer by a credit or debit card issued
1149 in the name of the consumer, or by personal or company check of
1150 the consumer.
1151 (e) The person accepting the order for delivery sale shall
1152 submit, to each credit card acquiring company with which the
1153 person has credit card sales, identification information in an
1154 appropriate form and format so that the words “nicotine product”
1155 may be printed in the purchaser’s credit card statement when a
1156 purchase of a nicotine product is made by credit card payment.
1157 (f) Makes a telephone call after 5 p.m. to the purchaser
1158 confirming the order before shipping the nicotine products. The
1159 telephone call may be a person-to-person call or a recorded
1160 message. The person accepting the order for delivery sale is not
1161 required to speak directly with a person and may leave a message
1162 on an answering machine or through voice mail.
1163
1164 In addition to the requirements of this subsection, a person
1165 accepting an order for a delivery sale may request that a
1166 consumer provide an electronic mail address.
1167 (4) The notice described in paragraph (3)(c) must include
1168 prominent and clearly legible statements that sales of nicotine
1169 products are:
1170 (a) Illegal if made to individuals who are not 21 years of
1171 age or older.
1172 (b) Restricted to those individuals who provide verifiable
1173 proof of age in accordance with subsection (3).
1174 (5) Each person who mails, ships, or otherwise delivers
1175 nicotine products in connection with an order for a delivery
1176 sale must:
1177 (a) Include as part of the shipping documents, in a clear
1178 and conspicuous manner, the following statement: “Nicotine
1179 Products: Florida law prohibits shipping to individuals under 21
1180 years of age.”
1181 (b) Use a method of mailing, shipping, or delivery which
1182 obligates the delivery service to require:
1183 1. The individual submitting the order for the delivery
1184 sale or another person 21 years of age or older who resides at
1185 the individual’s address to sign his or her name to accept
1186 delivery of the shipping container. Proof of the legal minimum
1187 purchase age of the individual accepting delivery is required
1188 only if the individual appears to be under 30 years of age.
1189 2. Proof that the individual is either the addressee or the
1190 individual who is 21 years of age or older designated by the
1191 addressee, in the form of a valid, government-issued
1192 identification card bearing a photograph of the individual who
1193 signs to accept delivery of the shipping container.
1194
1195 If the person accepting a purchase order for a delivery sale
1196 delivers the nicotine products without using a delivery service,
1197 the person must comply with all of the requirements of this
1198 section which apply to a delivery service. Any failure to comply
1199 with a requirement of this section constitutes a violation
1200 thereof.
1201 (6) This section does not apply to delivery sales of
1202 nicotine products to a retail nicotine products dealer or a
1203 retail tobacco products dealer, as defined in s. 569.002.
1204 (7) An individual 21 years of age or older who knowingly
1205 violates any provision of this section commits a misdemeanor of
1206 the second degree, punishable as provided in s. 775.082 or s.
1207 775.083.
1208 (8) The Attorney General, the Attorney General’s designee,
1209 or a state attorney may bring an action in the appropriate court
1210 in the state to prevent or restrain violations of this section
1211 by any person.
1212 Section 35. Section 877.112, Florida Statutes, is repealed.
1213 Section 36. This act shall take effect October 1, 2021.