CS for CS for SB 224                            Second Engrossed
       
       
       
       
       
       
       
       
       2014224e2
       
    1                        A bill to be entitled                      
    2         An act relating to tobacco and nicotine product
    3         regulation; amending s. 569.14, F.S.; allowing
    4         alternate signage requirements where a dealer that
    5         sells tobacco products also sells nicotine products or
    6         nicotine dispensing devices; creating s. 877.112,
    7         F.S.; defining terms; prohibiting the selling,
    8         delivering, bartering, furnishing, or giving of
    9         nicotine products or nicotine dispensing devices to
   10         persons under 18 years of age; prohibiting the gift of
   11         sample nicotine products or nicotine dispensing
   12         devices to persons under 18 years of age; providing
   13         penalties; providing affirmative defenses for a person
   14         charged with certain violations; prohibiting a person
   15         under 18 years of age from possessing, purchasing, or
   16         misrepresenting his or her age or military service to
   17         purchase nicotine products or nicotine dispensing
   18         devices; providing for use of civil fines; requiring
   19         certain signage where a retailer sells nicotine
   20         products or nicotine dispensing devices; prohibiting
   21         self-service merchandising where a retailer sells
   22         nicotine products or nicotine dispensing devices;
   23         providing an exception; prohibiting the sale or
   24         delivery of nicotine products or nicotine dispensing
   25         devices except when such products are under the direct
   26         control or line of sight of a retailer; prohibiting
   27         sales from a vending machine unless it is equipped
   28         with certain devices; amending s. 322.056, F.S.;
   29         conforming provisions to changes made by the act;
   30         providing an effective date.
   31          
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. Section 569.14, Florida Statutes, is amended to
   35  read:
   36         569.14 Posting of a sign stating that the sale of tobacco
   37  products to persons under 18 years of age is unlawful;
   38  enforcement; penalty.—
   39         (1) A Any dealer that sells tobacco products shall post a
   40  clear and conspicuous sign in each place of business where such
   41  products are sold which substantially states the following:
   42  THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF 18 IS
   43  AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
   44         (2) A dealer that sells tobacco products and nicotine
   45  products or nicotine dispensing devices, as defined in s.
   46  877.112, may use a sign that substantially states the following:
   47  THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR NICOTINE
   48  DISPENSING DEVICES TO PERSONS UNDER THE AGE OF 18 IS AGAINST
   49  FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
   50  A dealer that uses a sign as described in this subsection meets
   51  the signage requirements of ss. 569.14(1) and 877.112.
   52         (3)(2) The division shall make available to dealers of
   53  tobacco products signs that meet the requirements of subsection
   54  (1) or subsection (2).
   55         (4)(3) Any dealer that sells tobacco products shall provide
   56  at the checkout counter in a location clearly visible to the
   57  dealer, the dealer’s agent or employee, instructional material
   58  in a calendar format or similar format to assist in determining
   59  whether a person is of legal age to purchase tobacco products.
   60  This point of sale material must contain substantially the
   61  following language:
   62                IF YOU WERE NOT BORN BEFORE THIS DATE              
   63                  (insert date and applicable year)                
   64                  YOU CANNOT BUY TOBACCO PRODUCTS.                 
   65  Upon approval by the division, in lieu of a calendar a dealer
   66  may use card readers, scanners, or other electronic or automated
   67  systems that can verify whether a person is of legal age to
   68  purchase tobacco products. Failure to comply with the provisions
   69  contained in this subsection shall result in imposition of
   70  administrative penalties as provided in s. 569.006.
   71         (5)(4) The division, through its agents and inspectors,
   72  shall enforce this section.
   73         (6)(5) Any person who fails to comply with subsection (1)
   74  is guilty of a misdemeanor of the second degree, punishable as
   75  provided in s. 775.082 or s. 775.083.
   76         Section 2. Section 877.112, Florida Statutes, is created to
   77  read:
   78         877.112 Nicotine products and nicotine dispensing devices;
   79  prohibitions for minors; penalties; civil fines; signage
   80  requirements; preemption.-
   81         (1) DEFINITIONS.—As used in this section, the term:
   82         (a) “Nicotine dispensing device” means any product that
   83  employs an electronic, chemical or mechanical means to produce
   84  vapor from a nicotine product, including, but not limited to, an
   85  electronic cigarette, electronic cigar, electronic cigarillo,
   86  electronic pipe, or other similar device or product, any
   87  replacement cartridge for such device, and any other container
   88  of nicotine in a solution or other form intended to be used with
   89  or within an electronic cigarette, electronic cigar, electronic
   90  cigarillo, electronic pipe, or other similar device or product.
   91         (b) “Nicotine product” means any product that contains
   92  nicotine, including liquid nicotine, that is intended for human
   93  consumption, whether inhaled, chewed, absorbed, dissolved, or
   94  ingested by any means, but does not include a:
   95         1. Tobacco product, as defined in s. 569.002;
   96         2. Product regulated as a drug or device by the United
   97  States Food and Drug Administration under Chapter V of the
   98  federal Food, Drug, and Cosmetic Act; or
   99         3. Product that contains incidental nicotine.
  100         (c) “Self-service merchandising” means the open display of
  101  nicotine products or nicotine dispensing devices, whether
  102  packaged or otherwise, for direct retail customer access and
  103  handling before purchase without the intervention or assistance
  104  of the retailer or the retailer’s owner, employee, or agent. An
  105  open display of such products and devices includes the use of an
  106  open display unit.
  107         (2) PROHIBITIONS ON SALE TO MINORS.—It is unlawful to sell,
  108  deliver, barter, furnish, or give, directly or indirectly, to
  109  any person who is under 18 years of age, any nicotine product or
  110  a nicotine dispensing device.
  111         (3) PROHIBITIONS ON GIFTING SAMPLES TO MINORS.—The gift of
  112  a sample nicotine product or nicotine dispensing device to any
  113  person under the age of 18 by a retailer of nicotine products or
  114  nicotine dispensing devices, or by an employee of such retailer,
  115  is prohibited.
  116         (4) PENALTIES.—Any person who violates subsection (2) or
  117  subsection (3) commits a misdemeanor of the second degree,
  118  punishable as provided in s. 775.082 or s. 775.083. However, any
  119  person who violates subsection (2) or subsection (3) for a
  120  second or subsequent time within 1 year of the first violation,
  121  commits a misdemeanor of the first degree, punishable as
  122  provided in s. 775.082 or s. 775.083.
  123         (5) AFFIRMATIVE DEFENSES.—A person charged with a violation
  124  of subsection (2) or subsection (3) has a complete defense if,
  125  at the time the nicotine product or nicotine dispensing device
  126  was sold, delivered, bartered, furnished, or given:
  127         (a) The buyer or recipient falsely evidenced that she or he
  128  was 18 years of age or older;
  129         (b) The appearance of the buyer or recipient was such that
  130  a prudent person would believe the buyer or recipient to be 18
  131  years of age or older; and
  132         (c) Such person carefully checked a driver license or an
  133  identification card issued by this state or another state of the
  134  United States, a passport, or a United States armed services
  135  identification card presented by the buyer or recipient and
  136  acted in good faith and in reliance upon the representation and
  137  appearance of the buyer or recipient in the belief that the
  138  buyer or recipient was 18 years of age or older.
  139         (6) PROHIBITIONS ON POSSESSION OF NICOTINE PRODUCTS OR
  140  NICOTINE DISPENSING DEVICES BY MINORS.—It is unlawful for any
  141  person under 18 years of age to knowingly possess any nicotine
  142  product or a nicotine dispensing device. Any person under 18
  143  years of age who violates this subsection commits a noncriminal
  144  violation as defined in s. 775.08(3), punishable by:
  145         (a) For a first violation, 16 hours of community service
  146  or, instead of community service, a $25 fine. In addition, the
  147  person must attend a school-approved anti-tobacco and nicotine
  148  program, if locally available;
  149         (b) For a second violation within 12 weeks of the first
  150  violation, a $25 fine; or
  151         (c) For a third or subsequent violation within 12 weeks of
  152  the first violation, the court must direct the Department of
  153  Highway Safety and Motor Vehicles to withhold issuance of or
  154  suspend or revoke the person’s driver license or driving
  155  privilege, as provided in s. 322.056.
  156  
  157  Any second or subsequent violation not within the 12-week time
  158  period after the first violation is punishable as provided for a
  159  first violation.
  160         (7) PROHIBITION ON MISREPRESENTING AGE.—It is unlawful for
  161  any person under 18 years of age to misrepresent his or her age
  162  or military service for the purpose of inducing a retailer of
  163  nicotine products or nicotine dispensing devices or an agent or
  164  employee of such retailer to sell, give, barter, furnish, or
  165  deliver any nicotine product or nicotine dispensing device, or
  166  to purchase, or attempt to purchase, any nicotine product or
  167  nicotine dispensing device from a person or a vending machine.
  168  Any person under 18 years of age who violates this subsection
  169  commits a noncriminal violation as defined in s. 775.08(3),
  170  punishable by:
  171         (a) For a first violation, 16 hours of community service
  172  or, instead of community service, a $25 fine and, in addition,
  173  the person must attend a school-approved anti-tobacco and
  174  nicotine program, if available;
  175         (b) For a second violation within 12 weeks of the first
  176  violation, a $25 fine; or
  177         (c) For a third or subsequent violation within 12 weeks of
  178  the first violation, the court must direct the Department of
  179  Highway Safety and Motor Vehicles to withhold issuance of or
  180  suspend or revoke the person’s driver license or driving
  181  privilege, as provided in s. 322.056.
  182  
  183  Any second or subsequent violation not within the 12-week time
  184  period after the first violation is punishable as provided for a
  185  first violation.
  186         (8) PENALTIES FOR MINORS.—
  187         (a) A person under 18 years of age cited for committing a
  188  noncriminal violation under this section must sign and accept a
  189  civil citation indicating a promise to appear before the county
  190  court or comply with the requirement for paying the fine and
  191  must attend a school-approved anti-tobacco and nicotine program,
  192  if locally available. If a fine is assessed for a violation of
  193  this section, the fine must be paid within 30 days after the
  194  date of the citation or, if a court appearance is mandatory,
  195  within 30 days after the date of the hearing.
  196         (b) A person charged with a noncriminal violation under
  197  this section must appear before the county court or comply with
  198  the requirement for paying the fine. The court, after a hearing,
  199  shall make a determination as to whether the noncriminal
  200  violation was committed. If the court finds the violation was
  201  committed, it shall impose an appropriate penalty as specified
  202  in subsection (6) or subsection (7). A person who participates
  203  in community service shall be considered an employee of the
  204  state for the purpose of chapter 440, for the duration of such
  205  service.
  206         (c) If a person under 18 years of age is found by the court
  207  to have committed a noncriminal violation under this section and
  208  that person has failed to complete community service, pay the
  209  fine as required by paragraph (6)(a) or paragraph (7)(a), or
  210  attend a school-approved anti-tobacco and nicotine program, if
  211  locally available, the court must direct the Department of
  212  Highway Safety and Motor Vehicles to withhold issuance of or
  213  suspend the driver license or driving privilege of that person
  214  for 30 consecutive days.
  215         (d) If a person under 18 years of age is found by the court
  216  to have committed a noncriminal violation under this section and
  217  that person has failed to pay the applicable fine as required by
  218  paragraph (6)(b) or paragraph (7)(b), the court must direct the
  219  Department of Highway Safety and Motor Vehicles to withhold
  220  issuance of or suspend the driver license or driving privilege
  221  of that person for 45 consecutive days.
  222         (9) DISTRIBUTION OF CIVIL FINES.—Eighty percent of all
  223  civil penalties received by a county court pursuant to
  224  subsections (6) and (7) shall be remitted by the clerk of the
  225  court to the Department of Revenue for transfer to the
  226  Department of Education to provide for teacher training and for
  227  research and evaluation to reduce and prevent the use of tobacco
  228  products, nicotine products, or nicotine dispensing devices by
  229  children. The remaining 20 percent of civil penalties received
  230  by a county court pursuant to this section shall remain with the
  231  clerk of the county court to cover administrative costs.
  232         (10) SIGNAGE REQUIREMENTS FOR RETAILERS OF NICOTINE
  233  PRODUCTS AND NICOTINE DISPENSING DEVICES.—
  234         (a) Any retailer that sells nicotine products or nicotine
  235  dispensing devices shall post a clear and conspicuous sign in
  236  each place of business where such products are sold which
  237  substantially states the following:
  238  
  239  THE SALE OF NICOTINE PRODUCTS OR NICOTINE DISPENSING DEVICES TO
  240  PERSONS UNDER THE AGE OF 18 IS AGAINST FLORIDA LAW. PROOF OF AGE
  241  IS REQUIRED FOR PURCHASE.
  242  
  243         (b) A retailer that sells nicotine products or nicotine
  244  dispensing devices shall provide at the checkout counter in a
  245  location clearly visible to the retailer, the retailer’s agent
  246  or employee, instructional material in a calendar format or
  247  similar format to assist in determining whether a person is of
  248  legal age to purchase nicotine products or nicotine dispensing
  249  devices. This point of sale material must contain substantially
  250  the following language:
  251  
  252         		IF YOU WERE NOT BORN BEFORE THIS DATE
  253  			(insert date and applicable year)
  254  YOU CANNOT BUY NICOTINE PRODUCTS OR NICOTINE DISPENSING DEVICES.
  255  
  256  In lieu of a calendar a retailer may use card readers, scanners,
  257  or other electronic or automated systems that can verify whether
  258  a person is of legal age to purchase nicotine products or
  259  nicotine dispensing devices.
  260         (11) SELF-SERVICE MERCHANDISING PROHIBITED.—
  261         (a) A retailer that sells nicotine products or nicotine
  262  dispensing devices may not sell, permit to be sold, offer for
  263  sale, or display for sale such products or devices by means of
  264  self-service merchandising.
  265         (b) A retailer that sells nicotine products or nicotine
  266  dispensing devices may not place such products or devices in an
  267  open display unit unless the unit is located in an area that is
  268  inaccessible to customers.
  269         (c) Paragraphs (a) and (b) do not apply to an establishment
  270  that prohibits persons under 18 years of age on the premises.
  271         (12) RESTRICTIONS ON SALE OR DELIVERY OF NICOTINE PRODUCTS
  272  OR NICOTINE DISPENSING DEVICES.—
  273         (a) In order to prevent persons under 18 years of age from
  274  purchasing or receiving nicotine products or nicotine dispensing
  275  devices, the sale or delivery of such products or devices is
  276  prohibited, except:
  277         1. When under the direct control, or line of sight where
  278  effective control may be reasonably maintained, of the retailer
  279  of nicotine products or nicotine dispensing devices or such
  280  retailer’s agent or employee; or
  281         2. Sales from a vending machine are prohibited under
  282  subparagraph (a)1. and are only permissible from a machine that
  283  is equipped with an operational lockout device which is under
  284  the control of the retailer of nicotine products or nicotine
  285  dispensing devices or such retailer’s agent or employee who
  286  directly regulates the sale of items through the machine by
  287  triggering the lockout device to allow the dispensing of one
  288  nicotine product or nicotine dispensing device. The lockout
  289  device must include a mechanism to prevent the machine from
  290  functioning, if the power source for the lockout device fails or
  291  if the lockout device is disabled, and a mechanism to ensure
  292  that only one nicotine product or nicotine dispensing device is
  293  dispensed at a time.
  294         (b) Paragraph (a) does not apply to an establishment that
  295  prohibits persons under 18 years of age on the premises.
  296         (c) A retailer of nicotine products or nicotine dispensing
  297  devices or such retailer’s agent or employee may require proof
  298  of age of a purchaser of such products or devices before selling
  299  the product or device to that person.
  300         Section 3. Subsections (2) and (3) of section 322.056,
  301  Florida Statutes, are amended to read:
  302         322.056 Mandatory revocation or suspension of, or delay of
  303  eligibility for, driver driver’s license for persons under age
  304  18 found guilty of certain alcohol, drug, or tobacco offenses;
  305  prohibition.—
  306         (2) If a person under 18 years of age is found by the court
  307  to have committed a noncriminal violation under s. 569.11 or s.
  308  877.112(6) or (7) and that person has failed to comply with the
  309  procedures established in that section by failing to fulfill
  310  community service requirements, failing to pay the applicable
  311  fine, or failing to attend a locally available school-approved
  312  anti-tobacco program, and:
  313         (a) The person is eligible by reason of age for a driver
  314  driver’s license or driving privilege, the court shall direct
  315  the department to revoke or to withhold issuance of his or her
  316  driver driver’s license or driving privilege as follows:
  317         1. For the first violation, for 30 days.
  318         2. For the second violation within 12 weeks of the first
  319  violation, for 45 days.
  320         (b) The person’s driver driver’s license or driving
  321  privilege is under suspension or revocation for any reason, the
  322  court shall direct the department to extend the period of
  323  suspension or revocation by an additional period as follows:
  324         1. For the first violation, for 30 days.
  325         2. For the second violation within 12 weeks of the first
  326  violation, for 45 days.
  327         (c) The person is ineligible by reason of age for a driver
  328  driver’s license or driving privilege, the court shall direct
  329  the department to withhold issuance of his or her driver
  330  driver’s license or driving privilege as follows:
  331         1. For the first violation, for 30 days.
  332         2. For the second violation within 12 weeks of the first
  333  violation, for 45 days.
  334  
  335  Any second violation of s. 569.11 or s. 877.112(6) or (7) not
  336  within the 12-week period after the first violation will be
  337  treated as a first violation and in the same manner as provided
  338  in this subsection.
  339         (3) If a person under 18 years of age is found by the court
  340  to have committed a third violation of s. 569.11 or s.
  341  877.112(6) or (7) within 12 weeks of the first violation, the
  342  court must direct the Department of Highway Safety and Motor
  343  Vehicles to suspend or withhold issuance of his or her driver
  344  driver’s license or driving privilege for 60 consecutive days.
  345  Any third violation of s. 569.11 or s. 877.112(6) or (7) not
  346  within the 12-week period after the first violation will be
  347  treated as a first violation and in the same manner as provided
  348  in subsection (2).
  349         Section 4. This act shall take effect July 1, 2014.