Florida Senate - 2019                          SENATOR AMENDMENT
       Bill No. CS for SB 1618
       
       
       
       
       
       
                                Ì123848GÎ123848                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/2R         .                                
             04/29/2019 01:58 PM       .                                
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       Senator Simmons moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 59 - 548
    4  and insert:
    5         Section 2. Section 163.085, Florida Statutes, is created to
    6  read:
    7         163.085Preemption of the establishment of the minimum age
    8  for tobacco products, nicotine products, or nicotine dispensing
    9  devices, and the regulation of marketing of such products.—
   10         (1)DEFINITIONS.—As used in this section, the term:
   11         (a)“Local government” means a county, municipality, or
   12  special district.
   13         (b)“Minimum age” means the lawful age to purchase or
   14  knowingly possess tobacco products, nicotine products, or
   15  nicotine dispensing devices.
   16         (c)“Nicotine dispensing device” has the same meaning as in
   17  s. 877.112.
   18         (d)“Nicotine product” has the same meaning as in s.
   19  877.112.
   20         (e)“Retail licensure” means any certification,
   21  registration, or license that is required for a person, firm,
   22  association, or corporation to deal, at retail, with or
   23  regarding any tobacco products.
   24         (f)“Tobacco products” has the same meaning as in s.
   25  569.002.
   26         (2)PREEMPTION.—The establishment of the minimum age for
   27  the sale and delivery of tobacco products, nicotine products, or
   28  nicotine dispensing devices, and the regulation of the marketing
   29  of such products, is preempted to the state. Nothing in this
   30  section shall be construed to affect a local government’s
   31  ability to require retail licensure for the sale of tobacco
   32  products.
   33         Section 3. Present paragraphs (b) through (f) of subsection
   34  (1) of section 210.095, Florida Statutes, are redesignated as
   35  paragraphs (a) through (e), respectively, a new paragraph (f) is
   36  added to that section, and present paragraph (a) of subsection
   37  (1), paragraph (c) of subsection (2), paragraph (a) of
   38  subsection (3), paragraph (a) of subsection (4), subsection (5),
   39  and paragraphs (a), (b), (e), and (g) of subsection (8) of that
   40  section are amended, to read:
   41         210.095 Mail order, Internet, and remote sales of tobacco
   42  products; age verification.—
   43         (1) For purposes of this section, the term:
   44         (a)“Adult” means an individual who is at least of the
   45  legal minimum purchase age for tobacco products.
   46         (f)“The minimum age for purchase” means 21 years of age.
   47         (2)
   48         (c) A person may not make a delivery sale of tobacco
   49  products to any individual who is not the minimum age for
   50  purchase an adult.
   51         (3) A person may not mail, ship, or otherwise deliver
   52  tobacco products in connection with an order for a delivery sale
   53  unless, before the first delivery to the consumer, the person
   54  accepting the order for the delivery sale:
   55         (a) Obtains from the individual submitting the order a
   56  certification that includes:
   57         1. Reliable confirmation that the individual is the minimum
   58  age for purchase an adult; and
   59         2. A statement signed by the individual in writing and
   60  under penalty of perjury which:
   61         a. Certifies the address and date of birth of the
   62  individual; and
   63         b. Confirms that the individual wants to receive delivery
   64  sales from a tobacco company and understands that, under the
   65  laws of this state, the following actions are illegal:
   66         (I) Signing another individual’s name to the certification;
   67         (II) Selling tobacco products to individuals under the
   68  legal minimum purchase age; and
   69         (III) Purchasing tobacco products, if the person making the
   70  purchase is under the legal minimum purchase age.
   71  
   72  In addition to the requirements of this subsection, a person
   73  accepting an order for a delivery sale may request that a
   74  consumer provide an electronic mail address.
   75         (4) The notice described in paragraph (3)(c) must include
   76  prominent and clearly legible statements that sales of tobacco
   77  products are:
   78         (a) Illegal if made to individuals who are not the minimum
   79  age for purchase adults.
   80  
   81  The notice must include an explanation of how each tax has been,
   82  or is to be, paid with respect to the delivery sale.
   83         (5) Each person who mails, ships, or otherwise delivers
   84  tobacco products in connection with an order for a delivery sale
   85  must:
   86         (a) Include as part of the shipping documents, in a clear
   87  and conspicuous manner, the following statement: “Tobacco
   88  Products: Florida law prohibits shipping to individuals under 21
   89  18 years of age and requires the payment of all applicable
   90  taxes.”
   91         (b) Use a method of mailing, shipping, or delivery which
   92  obligates the delivery service to require:
   93         1. The individual submitting the order for the delivery
   94  sale or another individual who is the minimum age for purchase
   95  adult who resides at the individual’s address to sign his or her
   96  name to accept delivery of the shipping container. Proof of the
   97  legal minimum purchase age of the individual accepting delivery
   98  is required only if the individual appears to be under 27 years
   99  of age.
  100         2. Proof that the individual is either the addressee or the
  101  individual who is the minimum age for purchase adult designated
  102  by the addressee, in the form of a valid, government-issued
  103  identification card bearing a photograph of the individual who
  104  signs to accept delivery of the shipping container.
  105         (c) Provide to the delivery service, if such service is
  106  used, evidence of full compliance with subsection (7).
  107  
  108  If the person accepting a purchase order for a delivery sale
  109  delivers the tobacco products without using a delivery service,
  110  the person must comply with all of the requirements of this
  111  section which apply to a delivery service. Any failure to comply
  112  with a requirement of this section constitutes a violation
  113  thereof.
  114         (8)(a) Except as otherwise provided in this section, a
  115  violation of this section by a person other than an individual
  116  who is not the minimum age for purchase an adult is a
  117  misdemeanor of the first degree, punishable as provided in s.
  118  775.082 or s. 775.083, and:
  119         1. For a first violation of this section, the person shall
  120  be fined $1,000 or five times the retail value of the tobacco
  121  products involved in the violation, whichever is greater.
  122         2. For a second or subsequent violation of this section,
  123  the person shall be fined $5,000 or five times the retail value
  124  of the tobacco products involved in the violation, whichever is
  125  greater.
  126         (b) A person who is the minimum age for purchase an adult
  127  and knowingly submits a false certification under subsection (3)
  128  commits a misdemeanor of the first degree, punishable as
  129  provided in s. 775.082 or s. 775.083. For each offense, the
  130  person shall be fined $10,000 or five times the retail value of
  131  the tobacco products involved in the violation, whichever is
  132  greater.
  133         (e) A person who, in connection with a delivery sale,
  134  delivers tobacco products on behalf of a delivery service to an
  135  individual who is not the minimum age for purchase an adult
  136  commits a misdemeanor of the third degree, punishable as
  137  provided in s. 775.082 or s. 775.083.
  138         (g) An individual who is not the minimum age for purchase
  139  an adult and who knowingly violates any provision of this
  140  section commits a misdemeanor of the third degree, punishable as
  141  provided in s. 775.082 or s. 775.083.
  142         Section 4. Subsection (1) of section 386.212, Florida
  143  Statutes, is amended to read:
  144         386.212 Smoking prohibited near school property; penalty.—
  145         (1) It is unlawful for any person under 21 18 years of age
  146  to smoke tobacco in, on, or within 1,000 feet of the real
  147  property comprising a public or private elementary, middle, or
  148  secondary school between the hours of 6 a.m. and midnight. This
  149  section does not apply to any person occupying a moving vehicle
  150  or within a private residence.
  151         Section 5. Present subsections (3) through (7) of section
  152  569.002, Florida Statutes, are redesignated as subsections (4)
  153  through (8), respectively, a new subsection (3) is added to that
  154  section, and present subsection (7) is amended, to read:
  155         569.002 Definitions.—As used in this chapter, the term:
  156         (3)“The minimum age for purchase” means 21 years of age.
  157         (8)(7) “Any person under the minimum age of purchase 18”
  158  does not include any person under the minimum age of purchase 18
  159  who:
  160         (a)Has had his or her disability of nonage removed under
  161  chapter 743;
  162         (a)(b) Is in the military reserve or on active duty in the
  163  Armed Forces of the United States; or
  164         (c)Is otherwise emancipated by a court of competent
  165  jurisdiction and released from parental care and responsibility;
  166  or
  167         (b)(d) Is acting in his or her scope of lawful employment
  168  with an entity licensed under the provisions of chapter 210 or
  169  this chapter.
  170         Section 6. Subsections (1) and (2) of section 569.007,
  171  Florida Statutes, are amended to read:
  172         569.007 Sale or delivery of tobacco products;
  173  restrictions.—
  174         (1) In order to prevent persons under the minimum age of
  175  purchase 18 years of age from purchasing or receiving tobacco
  176  products, the sale or delivery of tobacco products is
  177  prohibited, except:
  178         (a) When under the direct control or line of sight of the
  179  dealer or the dealer’s agent or employee; or
  180         (b) Sales from a vending machine are prohibited under the
  181  provisions of paragraph (1)(a) and are only permissible from a
  182  machine that is equipped with an operational lockout device
  183  which is under the control of the dealer or the dealer’s agent
  184  or employee who directly regulates the sale of items through the
  185  machine by triggering the lockout device to allow the dispensing
  186  of one tobacco product. The lockout device must include a
  187  mechanism to prevent the machine from functioning if the power
  188  source for the lockout device fails or if the lockout device is
  189  disabled, and a mechanism to ensure that only one tobacco
  190  product is dispensed at a time.
  191         (2) The provisions of subsection (1) shall not apply to an
  192  establishment that prohibits persons under 21 18 years of age on
  193  the licensed premises.
  194         Section 7. Section 569.0075, Florida Statutes, is amended
  195  to read:
  196         569.0075 Gift of sample tobacco products prohibited.—The
  197  gift of sample tobacco products to any person under the minimum
  198  age for purchase age of 18 by an entity licensed or permitted
  199  under the provisions of chapter 210 or this chapter, or by an
  200  employee of such entity, is prohibited and is punishable as
  201  provided in s. 569.101.
  202         Section 8. Subsections (1), (2), and (3) of section
  203  569.008, Florida Statutes, are amended to read:
  204         569.008 Responsible retail tobacco products dealers;
  205  qualifications; mitigation of disciplinary penalties; diligent
  206  management and supervision; presumption.—
  207         (1) The Legislature intends to prevent the sale of tobacco
  208  products to persons under the minimum age for purchase 18 years
  209  of age and to encourage retail tobacco products dealers to
  210  comply with responsible practices in accordance with this
  211  section.
  212         (2) To qualify as a responsible retail tobacco products
  213  dealer, the dealer must establish and implement procedures
  214  designed to ensure that the dealer’s employees comply with the
  215  provisions of this chapter. The dealer must provide a training
  216  program for the dealer’s employees which addresses the use and
  217  sale of tobacco products and which includes at least the
  218  following topics:
  219         (a) Laws covering the sale of tobacco products.
  220         (b) Methods of recognizing and handling customers under the
  221  minimum age for purchase 18 years of age.
  222         (c) Procedures for proper examination of identification
  223  cards in order to verify that customers are not under the
  224  minimum age for purchase 18 years of age.
  225         (d) The use of the age audit identification function on
  226  electronic point-of-sale equipment, where available.
  227         (3) In determining penalties under s. 569.006, the division
  228  may mitigate penalties imposed against a dealer because of an
  229  employee’s illegal sale of a tobacco product to a person under
  230  the minimum age for purchase 18 years of age if the following
  231  conditions are met:
  232         (a) The dealer is qualified as a responsible dealer under
  233  this section.
  234         (b) The dealer provided the training program required under
  235  subsection (2) to that employee before the illegal sale
  236  occurred.
  237         (c) The dealer had no knowledge of that employee’s
  238  violation at the time of the violation and did not direct,
  239  approve, or participate in the violation.
  240         (d) If the sale was made through a vending machine, the
  241  machine was equipped with an operational lock-out device.
  242         Section 9. Section 569.101, Florida Statutes, is amended to
  243  read:
  244         569.101 Selling, delivering, bartering, furnishing, or
  245  giving tobacco products to persons under the minimum age for
  246  purchase 18 years of age; criminal penalties; defense.—
  247         (1) It is unlawful to sell, deliver, barter, furnish, or
  248  give, directly or indirectly, to any person who is under the
  249  minimum age for purchase 18 years of age, any tobacco product.
  250         (2) Any person who violates subsection (1) commits a
  251  misdemeanor of the second degree, punishable as provided in s.
  252  775.082 or s. 775.083. However, any person who violates
  253  subsection (1) for a second or subsequent time within 1 year of
  254  the first violation, commits a misdemeanor of the first degree,
  255  punishable as provided in s. 775.082 or s. 775.083.
  256         (3) A person charged with a violation of subsection (1) has
  257  a complete defense if, at the time the tobacco product was sold,
  258  delivered, bartered, furnished, or given:
  259         (a) The buyer or recipient falsely evidenced that she or he
  260  was the minimum age for purchase 18 years of age or older;
  261         (b) The appearance of the buyer or recipient was such that
  262  a prudent person would believe the buyer or recipient to be the
  263  minimum age for purchase 18 years of age or older; and
  264         (c) Such person carefully checked a driver license or an
  265  identification card issued by this state or another state of the
  266  United States, a passport, or a United States armed services
  267  identification card presented by the buyer or recipient and
  268  acted in good faith and in reliance upon the representation and
  269  appearance of the buyer or recipient in the belief that the
  270  buyer or recipient was the minimum age for purchase 18 years of
  271  age or older.
  272         Section 10. Section 569.11, Florida Statutes, is amended to
  273  read:
  274         569.11 Possession, Misrepresenting age or military service
  275  to purchase, and purchase of tobacco products by persons under
  276  the minimum age for purchase 18 years of age prohibited;
  277  penalties; jurisdiction; disposition of fines.—
  278         (1) It is unlawful for any person under the minimum age for
  279  purchase 18 years of age to knowingly possess any tobacco
  280  product. Any person under the minimum age for purchase 18 years
  281  of age who violates the provisions of this subsection commits a
  282  noncriminal violation as provided in s. 775.08(3), punishable
  283  by:
  284         (a) For a first violation, 16 hours of community service
  285  or, instead of community service, a $25 fine. In addition, the
  286  person must attend a school-approved anti-tobacco program, if
  287  locally available;
  288         (b) For a second violation within 12 weeks of the first
  289  violation, a $25 fine; or
  290         (c) For a third or subsequent violation within 12 weeks of
  291  the first violation, the court must direct the Department of
  292  Highway Safety and Motor Vehicles to withhold issuance of or
  293  suspend or revoke the person’s driver license or driving
  294  privilege, as provided in s. 322.056.
  295  
  296  Any second or subsequent violation not within the 12-week time
  297  period after the first violation is punishable as provided for a
  298  first violation.
  299         (2) It is unlawful for any person under the minimum age for
  300  purchase 18 years of age to misrepresent his or her age or
  301  military service for the purpose of inducing a dealer or an
  302  agent or employee of the dealer to sell, give, barter, furnish,
  303  or deliver any tobacco product, or to purchase, or attempt to
  304  purchase, any tobacco product from a person or a vending
  305  machine. Any person under the minimum age for purchase 18 years
  306  of age who violates a provision of this subsection commits a
  307  noncriminal violation as provided in s. 775.08(3), punishable
  308  by:
  309         (a) For a first violation, 16 hours of community service
  310  or, instead of community service, a $25 fine and, in addition,
  311  the person must attend a school-approved anti-tobacco program,
  312  if available;
  313         (b) For a second violation within 12 weeks of the first
  314  violation, a $25 fine; or
  315         (c) For a third or subsequent violation within 12 weeks of
  316  the first violation, the court must direct the Department of
  317  Highway Safety and Motor Vehicles to withhold issuance of or
  318  suspend or revoke the person’s driver license or driving
  319  privilege, as provided in s. 322.056.
  320  
  321  Any second or subsequent violation not within the 12-week time
  322  period after the first violation is punishable as provided for a
  323  first violation.
  324         (3) Any person under the minimum age for purchase 18 years
  325  of age cited for committing a noncriminal violation under this
  326  section must sign and accept a civil citation indicating a
  327  promise to appear before the county court or comply with the
  328  requirement for paying the fine and must attend a school
  329  approved anti-tobacco program, if locally available. If a fine
  330  is assessed for a violation of this section, the fine must be
  331  paid within 30 days after the date of the citation or, if a
  332  court appearance is mandatory, within 30 days after the date of
  333  the hearing.
  334         (4) A person charged with a noncriminal violation under
  335  this section must appear before the county court or comply with
  336  the requirement for paying the fine. The court, after a hearing,
  337  shall make a determination as to whether the noncriminal
  338  violation was committed. If the court finds the violation was
  339  committed, it shall impose an appropriate penalty as specified
  340  in subsection (1) or subsection (2). A person who participates
  341  in community service shall be considered an employee of the
  342  state for the purpose of chapter 440, for the duration of such
  343  service.
  344         (5)(a) If a person under the minimum age for purchase 18
  345  years of age is found by the court to have committed a
  346  noncriminal violation under this section and that person has
  347  failed to complete community service, pay the fine as required
  348  by paragraph (1)(a) or paragraph (2)(a), or attend a school
  349  approved anti-tobacco program, if locally available, the court
  350  must direct the Department of Highway Safety and Motor Vehicles
  351  to withhold issuance of or suspend the driver license or driving
  352  privilege of that person for a period of 30 consecutive days.
  353         (b) If a person under the minimum age for purchase 18 years
  354  of age is found by the court to have committed a noncriminal
  355  violation under this section and that person has failed to pay
  356  the applicable fine as required by paragraph (1)(b) or paragraph
  357  (2)(b), the court must direct the Department of Highway Safety
  358  and Motor Vehicles to withhold issuance of or suspend the driver
  359  license or driving privilege of that person for a period of 45
  360  consecutive days.
  361         (6) Eighty percent of all civil penalties received by a
  362  county court pursuant to this section shall be remitted by the
  363  clerk of the court to the Department of Revenue for transfer to
  364  the Department of Education to provide for teacher training and
  365  for research and evaluation to reduce and prevent the use of
  366  tobacco products by children. The remaining 20 percent of civil
  367  penalties received by a county court pursuant to this section
  368  shall remain with the clerk of the county court to cover
  369  administrative costs.
  370         Section 11. Paragraph (b) of subsection (2) and subsection
  371  (3) of section 569.12, Florida Statutes, are amended to read:
  372         569.12 Jurisdiction; tobacco product enforcement officers
  373  or agents; enforcement.—
  374         (2)
  375         (b) A tobacco product enforcement officer is authorized to
  376  issue a citation to a person under the minimum age for purchase
  377  of 18 when, based upon personal investigation, the officer has
  378  reasonable cause to believe that the person has committed a
  379  civil infraction in violation of s. 386.212 or s. 569.11.
  380         (3) A correctional probation officer as defined in s.
  381  943.10(3) is authorized to issue a citation to a person under
  382  the minimum age for purchase of 18 when, based upon personal
  383  investigation, the officer has reasonable cause to believe that
  384  the person has committed a civil infraction in violation of s.
  385  569.11.
  386         Section 12. Section 569.14, Florida Statutes, is amended to
  387  read:
  388         569.14 Posting of a sign stating that the sale of tobacco
  389  products to persons under the minimum age for purchase 18 years
  390  of age is unlawful; enforcement; penalty.—
  391         (1) A dealer that sells tobacco products shall post a clear
  392  and conspicuous sign in each place of business where such
  393  products are sold which substantially states the following:
  394  
  395         THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
  396         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  397         REQUIRED FOR PURCHASE.
  398  
  399         (2) A dealer that sells tobacco products and nicotine
  400  products or nicotine dispensing devices, as defined in s.
  401  877.112, may use a sign that substantially states the following:
  402  
  403         THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
  404         NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
  405         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  406         REQUIRED FOR PURCHASE.
  407  
  408  A dealer that uses a sign as described in this subsection meets
  409  the signage requirements of subsection (1) and s. 877.112.
  410         (3) The division shall make available to dealers of tobacco
  411  products signs that meet the requirements of subsection (1) or
  412  subsection (2).
  413         (4) Any dealer that sells tobacco products shall provide at
  414  the checkout counter in a location clearly visible to the dealer
  415  or the dealer’s agent or employee instructional material in a
  416  calendar format or similar format to assist in determining
  417  whether a person is of legal age to purchase tobacco products.
  418  This point of sale material must contain substantially the
  419  following language:
  420  
  421                IF YOU WERE NOT BORN BEFORE THIS DATE              
  422                  (insert date and applicable year)                
  423              YOU CANNOT BE SOLD BUY TOBACCO PRODUCTS.             
  424  
  425  Upon approval by the division, in lieu of a calendar a dealer
  426  may use card readers, scanners, or other electronic or automated
  427  systems that can verify whether a person is of legal age to
  428  purchase tobacco products. Failure to comply with the provisions
  429  contained in this subsection shall result in imposition of
  430  administrative penalties as provided in s. 569.006.
  431         (5) The division, through its agents and inspectors, shall
  432  enforce this section.
  433         (6) Any person who fails to comply with subsection (1) is
  434  guilty of a misdemeanor of the second degree, punishable as
  435  provided in s. 775.082 or s. 775.083.
  436         Section 13. Subsections (3) and (4) of section 569.19,
  437  Florida Statutes, are amended to read:
  438         569.19 Annual report.—The division shall report annually
  439  with written findings to the Legislature and the Governor by
  440  December 31, on the progress of implementing the enforcement
  441  provisions of this chapter. This must include, but is not
  442  limited to:
  443         (3) The number of violations for selling tobacco products
  444  to persons under the minimum age for purchase 18, and the
  445  results of administrative hearings on the above and related
  446  issues.
  447         (4) The number of persons under the minimum age for
  448  purchase 18 cited for violations of s. 569.11 and sanctions
  449  imposed as a result of citation.
  450         Section 14. Section 877.112, Florida Statutes, is amended
  451  to read:
  452         877.112 Nicotine products and nicotine dispensing devices;
  453  prohibitions for persons under 21 years of age minors;
  454  penalties; civil fines; signage requirements; preemption.—
  455         (1) DEFINITIONS.—As used in this section, the term:
  456         (a)“Any person under 21 years of age” does not include any
  457  person under the age of 21 who:
  458         1.Is in the military reserve or on active duty in the
  459  Armed Forces of the United States; or
  460         2.Is acting in his or her scope of lawful employment with
  461  an entity that sells, manufactures, or distributes nicotine
  462  products or nicotine dispensing devices.
  463         (b)(a) “Nicotine dispensing device” means any product that
  464  employs an electronic, chemical, or mechanical means to produce
  465  vapor from a nicotine product, including, but not limited to, an
  466  electronic cigarette, electronic cigar, electronic cigarillo,
  467  electronic pipe, or other similar device or product, any
  468  replacement cartridge for such device, and any other container
  469  of nicotine in a solution or other form intended to be used with
  470  or within an electronic cigarette, electronic cigar, electronic
  471  cigarillo, electronic pipe, or other similar device or product.
  472         (c)(b) “Nicotine product” means any product that contains
  473  nicotine, including liquid nicotine, that is intended for human
  474  consumption, whether inhaled, chewed, absorbed, dissolved, or
  475  ingested by any means, but does not include a:
  476         1. Tobacco product, as defined in s. 569.002;
  477         2. Product regulated as a drug or device by the United
  478  States Food and Drug Administration under Chapter V of the
  479  federal Food, Drug, and Cosmetic Act; or
  480         3. Product that contains incidental nicotine.
  481         (d)(c) “Self-service merchandising” means the open display
  482  of nicotine products or nicotine dispensing devices, whether
  483  packaged or otherwise, for direct retail customer access and
  484  handling before purchase without the intervention or assistance
  485  of the retailer or the retailer’s owner, employee, or agent. An
  486  open display of such products and devices includes the use of an
  487  open display unit.
  488         (2) PROHIBITIONS ON SALE TO PERSONS UNDER 21 YEARS OF AGE
  489  MINORS.—It is unlawful to sell, deliver, barter, furnish, or
  490  give, directly or indirectly, to any person who is under 21 18
  491  years of age, any nicotine product or a nicotine dispensing
  492  device.
  493         (3) PROHIBITIONS ON GIFTING SAMPLES TO PERSONS UNDER 21
  494  YEARS OF AGE MINORS.—The gift of a sample nicotine product or
  495  nicotine dispensing device to any person under the age of 21 18
  496  by a retailer of nicotine products or nicotine dispensing
  497  devices, or by an employee of such retailer, is prohibited.
  498         (4) PENALTIES.—Any person who violates subsection (2) or
  499  subsection (3) commits a misdemeanor of the second degree,
  500  punishable as provided in s. 775.082 or s. 775.083. However, any
  501  person who violates subsection (2) or subsection (3) for a
  502  second or subsequent time within 1 year of the first violation
  503  commits a misdemeanor of the first degree, punishable as
  504  provided in s. 775.082 or s. 775.083.
  505         (5) AFFIRMATIVE DEFENSES.—A person charged with a violation
  506  of subsection (2) or subsection (3) has a complete defense if,
  507  at the time the nicotine product or nicotine dispensing device
  508  was sold, delivered, bartered, furnished, or given:
  509         (a) The buyer or recipient falsely evidenced that she or he
  510  was 21 18 years of age or older;
  511         (b) The appearance of the buyer or recipient was such that
  512  a prudent person would believe the buyer or recipient to be 21
  513  18 years of age or older; and
  514         (c) Such person carefully checked a driver license or an
  515  identification card issued by this state or another state of the
  516  United States, a passport, or a United States Armed Services
  517  identification card presented by the buyer or recipient and
  518  acted in good faith and in reliance upon the representation and
  519  appearance of the buyer or recipient in the belief that the
  520  buyer or recipient was 21 18 years of age or older.
  521         (6) PROHIBITIONS ON POSSESSION OF NICOTINE PRODUCTS OR
  522  NICOTINE DISPENSING DEVICES BY PERSONS UNDER 21 YEARS OF AGE
  523  MINORS.—It is unlawful for any person under 21 18 years of age
  524  to knowingly possess any nicotine product or a nicotine
  525  dispensing device. Any person under 21 18 years of age who
  526  violates this subsection commits a noncriminal violation as
  527  defined in s. 775.08(3), punishable by:
  528         (a) For a first violation, 16 hours of community service
  529  or, instead of community service, a $25 fine. In addition, the
  530  person must attend a school-approved anti-tobacco and nicotine
  531  program, if locally available;
  532         (b) For a second violation within 12 weeks of the first
  533  violation, a $25 fine; or
  534         (c) For a third or subsequent violation within 12 weeks of
  535  the first violation, the court must direct the Department of
  536  Highway Safety and Motor Vehicles to withhold issuance of or
  537  suspend or revoke the person’s driver license or driving
  538  privilege, as provided in s. 322.056.
  539  
  540  Any second or subsequent violation not within the 12-week time
  541  period after the first violation is punishable as provided for a
  542  first violation.
  543         (7) PROHIBITION ON MISREPRESENTING AGE.—It is unlawful for
  544  any person under 21 18 years of age to misrepresent his or her
  545  age or military service for the purpose of inducing a retailer
  546  of nicotine products or nicotine dispensing devices or an agent
  547  or employee of such retailer to sell, give, barter, furnish, or
  548  deliver any nicotine product or nicotine dispensing device, or
  549  to purchase, or attempt to purchase, any nicotine product or
  550  nicotine dispensing device from a person or a vending machine.
  551  Any person under 21 18 years of age who violates this subsection
  552  commits a noncriminal violation as defined in s. 775.08(3),
  553  punishable by:
  554         (a) For a first violation, 16 hours of community service
  555  or, instead of community service, a $25 fine and, in addition,
  556  the person must attend a school-approved anti-tobacco and
  557  nicotine program, if available;
  558         (b) For a second violation within 12 weeks of the first
  559  violation, a $25 fine; or
  560         (c) For a third or subsequent violation within 12 weeks of
  561  the first violation, the court must direct the Department of
  562  Highway Safety and Motor Vehicles to withhold issuance of or
  563  suspend or revoke the person’s driver license or driving
  564  privilege, as provided in s. 322.056.
  565  
  566  Any second or subsequent violation not within the 12-week time
  567  period after the first violation is punishable as provided for a
  568  first violation.
  569         (8) PENALTIES FOR PERSONS UNDER 21 YEARS OF AGE MINORS.—
  570         (a) A person under 21 18 years of age cited for committing
  571  a noncriminal violation under this section must sign and accept
  572  a civil citation indicating a promise to appear before the
  573  county court or comply with the requirement for paying the fine
  574  and must attend a school-approved anti-tobacco and nicotine
  575  program, if locally available. If a fine is assessed for a
  576  violation of this section, the fine must be paid within 30 days
  577  after the date of the citation or, if a court appearance is
  578  mandatory, within 30 days after the date of the hearing.
  579         (b) A person charged with a noncriminal violation under
  580  this section must appear before the county court or comply with
  581  the requirement for paying the fine. The court, after a hearing,
  582  shall make a determination as to whether the noncriminal
  583  violation was committed. If the court finds the violation was
  584  committed, it shall impose an appropriate penalty as specified
  585  in subsection (6) or subsection (7). A person who participates
  586  in community service shall be considered an employee of the
  587  state for the purpose of chapter 440, for the duration of such
  588  service.
  589         (c) If a person under 21 18 years of age is found by the
  590  court to have committed a noncriminal violation under this
  591  section and that person has failed to complete community
  592  service, pay the fine as required by paragraph (6)(a) or
  593  paragraph (7)(a), or attend a school-approved anti-tobacco and
  594  nicotine program, if locally available, the court must direct
  595  the Department of Highway Safety and Motor Vehicles to withhold
  596  issuance of or suspend the driver license or driving privilege
  597  of that person for 30 consecutive days.
  598         (d) If a person under 21 18 years of age is found by the
  599  court to have committed a noncriminal violation under this
  600  section and that person has failed to pay the applicable fine as
  601  required by paragraph (6)(b) or paragraph (7)(b), the court must
  602  direct the Department of Highway Safety and Motor Vehicles to
  603  withhold issuance of or suspend the driver license or driving
  604  privilege of that person for 45 consecutive days.
  605         (9) DISTRIBUTION OF CIVIL FINES.—Eighty percent of all
  606  civil penalties received by a county court pursuant to
  607  subsections (6) and (7) shall be remitted by the clerk of the
  608  court to the Department of Revenue for transfer to the
  609  Department of Education to provide for teacher training and for
  610  research and evaluation to reduce and prevent the use of tobacco
  611  products, nicotine products, or nicotine dispensing devices by
  612  children. The remaining 20 percent of civil penalties received
  613  by a county court pursuant to this section shall remain with the
  614  clerk of the county court to cover administrative costs.
  615         (10) SIGNAGE REQUIREMENTS FOR RETAILERS OF NICOTINE
  616  PRODUCTS AND NICOTINE DISPENSING DEVICES.—
  617         (a) Any retailer that sells nicotine products or nicotine
  618  dispensing devices shall post a clear and conspicuous sign in
  619  each place of business where such products are sold which
  620  substantially states the following:
  621  
  622         THE SALE OF NICOTINE PRODUCTS OR NICOTINE DISPENSING
  623         DEVICES TO PERSONS UNDER THE AGE OF 21 18 IS AGAINST
  624         FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
  625  
  626         (b) A retailer that sells nicotine products or nicotine
  627  dispensing devices shall provide at the checkout counter in a
  628  location clearly visible to the retailer or the retailer’s agent
  629  or employee instructional material in a calendar format or
  630  similar format to assist in determining whether a person is of
  631  legal age to purchase nicotine products or nicotine dispensing
  632  devices. This point of sale material must contain substantially
  633  the following language:
  634  
  635                IF YOU WERE NOT BORN BEFORE THIS DATE              
  636                  (insert date and applicable year)                
  637                 YOU CANNOT BUY NICOTINE PRODUCTS OR               
  638                    NICOTINE DISPENSING DEVICES.                   
  639  
  640  In lieu of a calendar a retailer may use card readers, scanners,
  641  or other electronic or automated systems that can verify whether
  642  a person is of legal age to purchase nicotine products or
  643  nicotine dispensing devices.
  644         (11) SELF-SERVICE MERCHANDISING PROHIBITED.—
  645         (a) A retailer that sells nicotine products or nicotine
  646  dispensing devices may not sell, permit to be sold, offer for
  647  sale, or display for sale such products or devices by means of
  648  self-service merchandising.
  649         (b) A retailer that sells nicotine products or nicotine
  650  dispensing devices may not place such products or devices in an
  651  open display unit unless the unit is located in an area that is
  652  inaccessible to customers.
  653         (c) Paragraphs (a) and (b) do not apply to an establishment
  654  that prohibits persons under 21 18 years of age on the premises.
  655         (12) RESTRICTIONS ON SALE OR DELIVERY OF NICOTINE PRODUCTS
  656  OR NICOTINE DISPENSING DEVICES.—
  657         (a) In order to prevent persons under 21 18 years of age
  658  from purchasing or receiving nicotine products or nicotine
  659  dispensing devices, the sale or delivery of such products or
  660  devices is prohibited, except:
  661         1. When under the direct control, or line of sight where
  662  effective control may be reasonably maintained, of the retailer
  663  of nicotine products or nicotine dispensing devices or such
  664  retailer’s agent or employee; or
  665         2. Sales from a vending machine are prohibited under
  666  subparagraph 1. and are only permissible from a machine that is
  667  equipped with an operational lockout device which is under the
  668  control of the retailer of nicotine products or nicotine
  669  dispensing devices or such retailer’s agent or employee who
  670  directly regulates the sale of items through the machine by
  671  triggering the lockout device to allow the dispensing of one
  672  nicotine product or nicotine dispensing device. The lockout
  673  device must include a mechanism to prevent the machine from
  674  functioning, if the power source for the lockout device fails or
  675  if the lockout device is disabled, and a mechanism to ensure
  676  that only one nicotine product or nicotine dispensing device is
  677  dispensed at a time.
  678         (b) Paragraph (a) does not apply to an establishment that
  679  prohibits persons under 21 18 years of age on the premises.
  680         (c) A retailer of nicotine products or nicotine dispensing
  681  devices or such retailer’s agent or employee may require proof
  682  of age of a purchaser of such products or devices before selling
  683  the product or device to that person.
  684  
  685  ================= T I T L E  A M E N D M E N T ================
  686  And the title is amended as follows:
  687         Delete lines 2 - 53
  688  and insert:
  689         An act relating to tobacco and nicotine products;
  690         providing a short title; creating s. 163.085, F.S.;
  691         defining terms; preempting the establishment of the
  692         minimum age for the sale or delivery of tobacco
  693         products, nicotine products, or nicotine dispensing
  694         devices to the state; providing exceptions; amending
  695         s. 210.095, F.S.; deleting the definition of the term
  696         “adult”; defining the term “the minimum age for
  697         purchase”; conforming provisions to changes made by
  698         the act; amending s. 386.212, F.S.; revising the age
  699         under which it is unlawful to smoke in, on, or near
  700         school property; amending s. 569.002, F.S.; defining
  701         the terms “the minimum age for purchase” and “any
  702         person under the minimum age for purchase”; replacing
  703         the term “any person under the age of 18” with “any
  704         person under the minimum age for purchase”; amending
  705         s. 569.007, F.S.; providing that it is unlawful to
  706         sell or deliver tobacco products to persons under the
  707         minimum age for purchase; providing an exception;
  708         amending s. 569.0075, F.S.; revising the age under
  709         which the gift of tobacco products to a person by
  710         certain entities is prohibited; amending s. 569.008,
  711         F.S.; revising legislative intent to reflect that the
  712         Legislature intends to prevent the sale of tobacco
  713         products to persons under a specified age; conforming
  714         provisions to changes made by the act; amending s.
  715         569.101, F.S.; revising the age limitation that
  716         applies to the sale, delivery, bartering, furnishing,
  717         or giving of tobacco products; conforming provisions
  718         to changes made by the act; amending s. 569.11, F.S.;
  719         revising the age limitation that applies to possessing
  720         tobacco products; revising the age limitation that
  721         applies to unlawful misrepresentation of age or
  722         military service for certain purposes; conforming
  723         provisions to changes made by the act; amending ss.
  724         569.12, 569.14, and 569.19, F.S.; conforming
  725         provisions to changes made by the act; amending s.
  726         877.112, F.S.; defining the term “any person under 21
  727         years of age”; revising the age limitations relating
  728         to nicotine products and nicotine dispensing devices;
  729         conforming provisions to changes made by the act;
  730         providing an