Florida Senate - 2025                              CS for SB 928
       
       
        
       By the Committee on Regulated Industries; and Senator Calatayud
       
       
       
       
       
       580-02351-25                                           2025928c1
    1                        A bill to be entitled                      
    2         An act relating to nonapproved disposable nicotine
    3         dispensing devices; providing a short title;
    4         reordering and amending s. 569.31, F.S.; defining the
    5         term “nonapproved disposable device”; amending s.
    6         569.33, F.S.; revising which permitholders that the
    7         premises covered by the permit are subject to
    8         inspection and search by the Division of Alcoholic
    9         Beverages and Tobacco; revising the provision that,
   10         upon being granted a permit, such permitholders also
   11         consent to inspections by the Department of Law
   12         Enforcement for specified violations; requiring the
   13         division to inspect regularly the licensed premises of
   14         dealers who sell nonapproved disposable devices;
   15         amending s. 569.35, F.S.; revising penalties for
   16         violations involving the unlawful sale of nonapproved
   17         disposable devices; requiring that administrative
   18         fines for certain violations be used by the division
   19         for specified purposes; amending s. 569.37, F.S.;
   20         prohibiting a dealer who sells nonapproved disposable
   21         devices from advertising, promoting, or displaying for
   22         sale such devices in certain locations; revising
   23         applicability; providing restrictions on locations for
   24         specified dealers of nicotine products; requiring
   25         dealers to submit specified information to the
   26         division; requiring certain dealers to maintain
   27         specified records; authorizing the division to request
   28         and have access to such records; providing that
   29         failure of provide such records is a violation of this
   30         section; requiring dealers to provide specified
   31         information within a certain time period following
   32         such a request; requiring dealers to submit an
   33         application to the division for conditional use or
   34         legally recognized nonconforming use in specified
   35         circumstances; requiring dealers to relocate following
   36         approval of such applications within a specified
   37         timeframe; amending s. 569.39, F.S.; revising the
   38         division’s rulemaking authority; amending s. 569.44,
   39         F.S.; revising the information that must be included
   40         in the division’s annual report to the Legislature and
   41         the Governor; reenacting ss. 569.381(3) and (5) and
   42         569.43(3), F.S., relating to responsible retail
   43         nicotine products dealers, qualifications, mitigation
   44         of disciplinary penalties, diligent management and
   45         supervision, and presumption; and posting of a sign
   46         stating that the sale of nicotine products or nicotine
   47         dispensing devices to persons under 21 years of age is
   48         unlawful, enforcement, and penalties, respectively, to
   49         incorporate the amendment made to s. 569.35, F.S., in
   50         references thereto; providing an effective date.
   51          
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. This act may be cited as the “Florida Age Gate
   55  Act.”
   56         Section 2. Section 569.31, Florida Statutes, is reordered
   57  and amended to read:
   58         569.31 Definitions.—As used in this part, the term:
   59         (2)(1) “Dealer” is synonymous with the term “retail
   60  nicotine products dealer.”
   61         (3)(2) “Division” means the Division of Alcoholic Beverages
   62  and Tobacco of the Department of Business and Professional
   63  Regulation.
   64         (4)(3) “FDA” means the United States Food and Drug
   65  Administration.
   66         (5)(4) “Nicotine dispensing device” means any product that
   67  employs an electronic, chemical, or mechanical means to produce
   68  vapor or aerosol from a nicotine product, including, but not
   69  limited to, an electronic cigarette, electronic cigar,
   70  electronic cigarillo, electronic pipe, or other similar device
   71  or product, any replacement cartridge for such device, and any
   72  other container of nicotine in a solution or other form intended
   73  to be used with or within an electronic cigarette, electronic
   74  cigar, electronic cigarillo, electronic pipe, or other similar
   75  device or product. For purposes of this definition, each
   76  individual stock keeping unit is considered a separate nicotine
   77  dispensing device.
   78         (6)(5) “Nicotine product” means any product that contains
   79  nicotine, including liquid nicotine, which is intended for human
   80  consumption, whether inhaled, chewed, absorbed, dissolved, or
   81  ingested by any means. The term also includes any nicotine
   82  dispensing device. The term does not include a:
   83         (a) Tobacco product, as defined in s. 569.002;
   84         (b) Product regulated as a drug or device by the United
   85  States Food and Drug Administration under Chapter V of the
   86  Federal Food, Drug, and Cosmetic Act; or
   87         (c) Product that contains incidental nicotine.
   88         (7)(6) “Nicotine products manufacturer” means any person or
   89  entity that manufactures nicotine products.
   90         (9)(7) “Permit” is synonymous with the term “retail
   91  nicotine products dealer permit.”
   92         (10)(8) “Retail nicotine products dealer” means the holder
   93  of a retail nicotine products dealer permit.
   94         (11)(9) “Retail nicotine products dealer permit” means a
   95  permit issued by the division under s. 569.32.
   96         (12)(10) “Self-service merchandising” means the open
   97  display of nicotine products, whether packaged or otherwise, for
   98  direct retail customer access and handling before purchase
   99  without the intervention or assistance of the dealer or the
  100  dealer’s owner, employee, or agent. An open display of such
  101  products and devices includes the use of an open display unit.
  102         (13)(11) “Sell” or “sale” means, in addition to its common
  103  usage meaning, any sale, transfer, exchange, barter, gift, or
  104  offer for sale and distribution, in any manner or by any means.
  105         (1)(12) “Any person under the age of 21” does not include
  106  any person under the age of 21 who:
  107         (a) Is in the military reserve or on active duty in the
  108  Armed Forces of the United States; or
  109         (b) Is acting in his or her scope of lawful employment.
  110         (8) “Nonapproved disposable device” means a disposable or
  111  single-use nicotine dispensing device as defined in this section
  112  which has not received a marketing granted order under 21 U.S.C.
  113  s. 387j.
  114         Section 3. Section 569.33, Florida Statutes, is amended to
  115  read:
  116         569.33 Consent to inspection and search without warrant.—
  117         (1) An applicant for a retail nicotine products dealer
  118  permit or a retail tobacco products dealer permit issued under
  119  s. 569.003, by accepting the permit when issued, agrees that the
  120  place or premises covered by the permit is subject to inspection
  121  and search without a search warrant by the division or its
  122  authorized assistants, and by sheriffs, deputy sheriffs, or
  123  police officers, to determine compliance with this part. An
  124  applicant also consents to inspection and search without a
  125  search warrant of the licensed premises by the Department of Law
  126  Enforcement to determine compliance with this part relating to
  127  the unlawful sale of nonapproved disposable devices or the
  128  unlawful advertising, promotion, or display for sale of such
  129  devices.
  130         (2) The division shall conduct regular inspections of the
  131  licensed premises of dealers who sell nonapproved disposable
  132  devices to ensure compliance with this part.
  133         Section 4. Section 569.35, Florida Statutes, is amended to
  134  read:
  135         569.35 Retail nicotine product dealers; administrative and
  136  criminal penalties.—
  137         (1) The division may suspend or revoke the permit of a
  138  dealer, including the retail tobacco products dealer permit of a
  139  retail tobacco products dealer as defined in s. 569.002(4), upon
  140  sufficient cause appearing of the violation of any of the
  141  provisions of this part, by a dealer, or by a dealer’s agent or
  142  employee.
  143         (2)(a) Except as provided in paragraph (b), the division
  144  may also assess and accept an administrative fine of up to
  145  $1,000 against a dealer for each violation. The division shall
  146  deposit all fines collected under this paragraph into the
  147  General Revenue Fund as collected.
  148         (b)The division may impose the following penalties for
  149  each violation involving the unlawful advertising, promotion, or
  150  display for sale of nonapproved disposable devices as provided
  151  in s. 569.37(3):
  152         1.For a first violation, an administrative fine of at
  153  least $500, but not more than $1,000, and an order requiring
  154  that corrective action be taken within 15 days to preclude a
  155  recurrence;
  156         2.For a second violation within 12 weeks after the first
  157  violation, an administrative fine of $1,000 and up to a 30-day
  158  suspension of the dealer’s retail nicotine products dealer
  159  permit; or
  160         3.For a third or subsequent violation within 12 weeks
  161  after the first violation, an administrative fine of at least
  162  $2,500, but not more than $5,000, and at least a 30-day
  163  suspension or revocation of the dealer’s nicotine products
  164  dealer permit.
  165  
  166  Any second or subsequent violation beyond the 12-week period
  167  after the first violation is punishable as provided for a first
  168  violation. The division shall deposit all fines collected under
  169  this paragraph into the Professional Regulation Trust Fund.
  170         (c)In addition to any administrative penalties authorized
  171  under subparagraph (b)3., a dealer, or a dealer’s agent or
  172  employee, who commits a third or subsequent violation within 12
  173  weeks after the first violation commits a misdemeanor of the
  174  second degree, punishable as provided in s. 775.082 or s.
  175  775.083.
  176         (3) An order imposing an administrative fine becomes
  177  effective 15 days after the date of the order. The division may
  178  suspend the imposition of a penalty against a dealer,
  179  conditioned upon the dealer’s compliance with terms the division
  180  considers appropriate.
  181         (4)Administrative fines collected under paragraph (2)(b)
  182  shall be used by the division to do all of the following:
  183         (a) Increase enforcement personnel.
  184         (b) Fund compliance inspections and investigations.
  185         (c) Develop and implement public awareness campaigns to
  186  reduce nicotine use by persons under the age of 21.
  187         Section 5. Present subsections (3) and (4) of section
  188  569.37, Florida Statutes, are redesignated as subsections (4)
  189  and (5), respectively, a new subsection (3) and subsection (6)
  190  are added to that section, and present subsection (3) of that
  191  section is amended, to read:
  192         569.37 Sale or delivery of nicotine products;
  193  restrictions.—
  194         (3) A dealer who sells nonapproved disposable devices may
  195  not:
  196         (a) Advertise, promote, or display for sale such
  197  nonapproved disposable devices in any location that is visible
  198  to persons outside of the dealer’s licensed premises.
  199         (b)Advertise, promote, or display for sale such
  200  nonapproved disposable devices within the dealer’s licensed
  201  premises in a manner visible to any person under the age of 21,
  202  including, but not limited to, placement of the devices in an
  203  open display unit located in an area visible to any person under
  204  the age of 21.
  205         (4)(3)The provisions of Subsections (1), and (2), and (3)
  206  do shall not apply to an establishment that prohibits persons
  207  under 21 years of age on the licensed premises.
  208         (6)(a)A dealer that derives more than 20 percent of its
  209  gross monthly retail sales from the sale of nicotine products
  210  may not be located within 500 feet of the real property that
  211  comprises a public or private elementary school, middle school,
  212  or secondary school. The required distance must be measured on a
  213  straight line from the nearest property line of the retail shop
  214  to the nearest property line of the school.
  215         (b)Each dealer must submit to the division a survey
  216  certified under chapter 472, performed at least 30 days before
  217  the date of the submission of the application for a permit under
  218  s. 569.32, containing a legal description of the boundaries of
  219  the place or premises and any existing public or private
  220  elementary school, middle school, or secondary school located
  221  within 500 feet. The measurement scaled by the division governs
  222  any measurement disputes.
  223         (c)A dealer located within 500 feet of real property that
  224  comprises a public or private elementary school, middle school,
  225  or secondary school must maintain records verifying the gross
  226  monthly retail sales from the sale of nicotine products during
  227  the previous 6 months, as well as the percentage of such sales
  228  that represents the retail sales of nicotine dispensing devices.
  229  The division may request and have access to such records for the
  230  purpose of enforcement. Within 14 days after such request, the
  231  dealer must provide a summary sales report verifying its sales
  232  for the period of time requested. Failure of the dealer to
  233  provide a sales report when requested by the division, or
  234  failure of the dealer to adequately demonstrate that the
  235  business establishment has sold less than the required
  236  percentage of nicotine products and nicotine dispensing devices,
  237  is a violation of this section.
  238         (d)Within 90 days after the opening of a public or private
  239  elementary school, middle school, or secondary school located
  240  within 500 feet of an existing place of business or premises
  241  that sells nicotine products or nicotine dispensing devices, as
  242  determined under paragraph (a), the dealer must submit an
  243  application to the division for conditional use or legally
  244  recognized nonconforming use in accordance with the local
  245  government’s applicable land development regulations. Upon
  246  approval of the division for conditional use or a legally
  247  recognized nonconforming use, the dealer must relocate the
  248  business or premises within 180 days, or upon expiration of the
  249  dealer’s current lease agreement without any extension thereof,
  250  whichever occurs later, to a new location in compliance with
  251  this subsection.
  252         (e)Within 90 days after July 1, 2025, a dealer that has a
  253  place of business or premises located within 500 feet of a
  254  public or private elementary school, middle school, or secondary
  255  school, as determined under paragraph (a), must submit an
  256  application to the division for conditional use or legally
  257  recognized nonconforming use in accordance with the local
  258  government’s land development regulations. Upon approval of the
  259  division for conditional use or a legally recognized
  260  nonconforming use, the dealer must relocate the business or
  261  premises within 180 days, or upon expiration of the dealer’s
  262  current lease agreement without any extension thereof, whichever
  263  occurs later, to a new location in compliance with this
  264  subsection.
  265         Section 6. Section 569.39, Florida Statutes, is amended to
  266  read:
  267         569.39 Rulemaking authority.—The division shall adopt rules
  268  to administer and enforce this part. The rules must include
  269  guidelines for compliance audits and enforcement actions
  270  pertaining to the sale, advertising, promotion, and display for
  271  sale of nonapproved disposable devices.
  272         Section 7. Present subsections (3) and (4) of section
  273  569.44, Florida Statutes, are redesignated as subsections (4)
  274  and (5), respectively, and a new subsection (3) is added to that
  275  section, to read:
  276         569.44 Annual report.—The division shall report annually
  277  with written findings to the Legislature and the Governor by
  278  December 31 on the progress of implementing the enforcement
  279  provisions of this part. This must include, but is not limited
  280  to:
  281         (3) The number of violations for any advertising,
  282  promotion, or display of nonapproved disposable devices
  283  prohibited by s. 569.37(3).
  284         Section 8. For the purpose of incorporating the amendment
  285  made by this act to section 569.35, Florida Statutes, in
  286  references thereto, subsections (3) and (5) of section 569.381,
  287  Florida Statutes, are reenacted to read:
  288         569.381 Responsible retail nicotine products dealers;
  289  qualifications; mitigation of disciplinary penalties; diligent
  290  management and supervision; presumption.—
  291         (3) In determining penalties under s. 569.35, the division
  292  may mitigate penalties imposed against a dealer because of an
  293  employee’s illegal sale of a nicotine product to a person under
  294  21 years of age if the following conditions are met:
  295         (a) The dealer is qualified as a responsible dealer under
  296  this section.
  297         (b) The dealer provided the training program required under
  298  subsection (2) to that employee before the illegal sale
  299  occurred.
  300         (c) The dealer had no knowledge of that employee’s
  301  violation at the time of the violation and did not direct,
  302  approve, or participate in the violation.
  303         (d) If the sale was made through a vending machine, the
  304  machine was equipped with an operational lock-out device.
  305         (5) Dealers shall exercise diligence in the management and
  306  supervision of their premises and in the supervision and
  307  training of their employees, agents, or servants. In proceedings
  308  to impose penalties under s. 569.35, proof that employees,
  309  agents, or servants of the dealer, while in the scope of their
  310  employment, committed at least three violations of s. 569.41
  311  during a 180-day period shall be prima facie evidence of a lack
  312  of due diligence by the dealer in the management and supervision
  313  of his or her premises and in the supervision and training of
  314  employees, agents, officers, or servants.
  315         Section 9. For the purpose of incorporating the amendment
  316  made by this act to section 569.35, Florida Statutes, in a
  317  reference thereto, subsection (3) of section 569.43, Florida
  318  Statutes, is reenacted to read:
  319         569.43 Posting of a sign stating that the sale of nicotine
  320  products or nicotine dispensing devices to persons under 21
  321  years of age is unlawful; enforcement; penalty.—
  322         (3) Any dealer that sells nicotine products shall provide
  323  at the checkout counter in a location clearly visible to the
  324  dealer or the dealer’s agent or employee instructional material
  325  in a calendar format or similar format to assist in determining
  326  whether a person is of legal age to purchase nicotine products.
  327  This point of sale material must contain substantially the
  328  following language:
  329  
  330                IF YOU WERE NOT BORN BEFORE THIS DATE              
  331               ...(insert date and applicable year)...             
  332                  YOU CANNOT BUY TOBACCO PRODUCTS,                 
  333         NICOTINE PRODUCTS, OR NICOTINE DISPENSING DEVICES.        
  334  
  335  Upon approval by the division, in lieu of a calendar a dealer
  336  may use card readers, scanners, or other electronic or automated
  337  systems that can verify whether a person is of legal age to
  338  purchase nicotine products. Failure to comply with the
  339  provisions contained in this subsection shall result in
  340  imposition of administrative penalties as provided in s. 569.35.
  341         Section 10. This act shall take effect July 1, 2025.