CS for SB 1618                                   First Engrossed
       
       
       
       
       
       
       
       
       20191618e1
       
    1                        A bill to be entitled                      
    2         An act relating to tobacco and nicotine products;
    3         providing a short title; creating s. 163.085, F.S.;
    4         defining terms; preempting the establishment of the
    5         minimum age for the sale or delivery of tobacco
    6         products, nicotine products, or nicotine dispensing
    7         devices to the state; providing exceptions; amending
    8         s. 210.095, F.S.; deleting the definition of the term
    9         “adult”; defining the term “the minimum age for
   10         purchase”; conforming provisions to changes made by
   11         the act; amending s. 386.212, F.S.; revising the age
   12         under which it is unlawful to smoke in, on, or near
   13         school property; amending s. 569.002, F.S.; defining
   14         the terms “the minimum age for purchase” and “any
   15         person under the minimum age for purchase”; replacing
   16         the term “any person under the age of 18” with “any
   17         person under the minimum age for purchase”; amending
   18         s. 569.007, F.S.; providing that it is unlawful to
   19         sell or deliver tobacco products to persons under the
   20         minimum age for purchase; providing an exception;
   21         amending s. 569.0075, F.S.; revising the age under
   22         which the gift of tobacco products to a person by
   23         certain entities is prohibited; amending s. 569.008,
   24         F.S.; revising legislative intent to reflect that the
   25         Legislature intends to prevent the sale of tobacco
   26         products to persons under a specified age; conforming
   27         provisions to changes made by the act; amending s.
   28         569.101, F.S.; revising the age limitation that
   29         applies to the sale, delivery, bartering, furnishing,
   30         or giving of tobacco products; conforming provisions
   31         to changes made by the act; amending s. 569.11, F.S.;
   32         revising the age limitation that applies to possessing
   33         tobacco products; revising the age limitation that
   34         applies to unlawful misrepresentation of age or
   35         military service for certain purposes; conforming
   36         provisions to changes made by the act; amending ss.
   37         569.12, 569.14, and 569.19, F.S.; conforming
   38         provisions to changes made by the act; amending s.
   39         877.112, F.S.; defining the term “any person under 21
   40         years of age”; revising the age limitations relating
   41         to nicotine products and nicotine dispensing devices;
   42         conforming provisions to changes made by the act;
   43         providing an effective date.
   44          
   45  Be It Enacted by the Legislature of the State of Florida:
   46  
   47         Section 1. This act may be cited as the “Tobacco 21 Act.”
   48         Section 2. Section 163.085, Florida Statutes, is created to
   49  read:
   50         163.085Preemption of the establishment of the minimum age
   51  for tobacco products, nicotine products, or nicotine dispensing
   52  devices, and the regulation of marketing of such products.—
   53         (1)DEFINITIONS.—As used in this section, the term:
   54         (a)“Local government” means a county, municipality, or
   55  special district.
   56         (b)“Minimum age” means the lawful age to purchase or
   57  knowingly possess tobacco products, nicotine products, or
   58  nicotine dispensing devices.
   59         (c)“Nicotine dispensing device” has the same meaning as in
   60  s. 877.112.
   61         (d)“Nicotine product” has the same meaning as in s.
   62  877.112.
   63         (e)“Retail licensure” means any certification,
   64  registration, or license that is required for a person, firm,
   65  association, or corporation to deal, at retail, with or
   66  regarding any tobacco products.
   67         (f)“Tobacco products” has the same meaning as in s.
   68  569.002.
   69         (2)PREEMPTION.—The establishment of the minimum age for
   70  the sale and delivery of tobacco products, nicotine products, or
   71  nicotine dispensing devices is preempted to the state. Nothing
   72  in this section shall be construed to affect a local
   73  government’s ability to require retail licensure for the sale of
   74  tobacco products.
   75         Section 3. Present paragraphs (b) through (f) of subsection
   76  (1) of section 210.095, Florida Statutes, are redesignated as
   77  paragraphs (a) through (e), respectively, a new paragraph (f) is
   78  added to that section, and present paragraph (a) of subsection
   79  (1), paragraph (c) of subsection (2), paragraph (a) of
   80  subsection (3), paragraph (a) of subsection (4), subsection (5),
   81  and paragraphs (a), (b), (e), and (g) of subsection (8) of that
   82  section are amended, to read:
   83         210.095 Mail order, Internet, and remote sales of tobacco
   84  products; age verification.—
   85         (1) For purposes of this section, the term:
   86         (a)“Adult” means an individual who is at least of the
   87  legal minimum purchase age for tobacco products.
   88         (f)“The minimum age for purchase” means 21 years of age.
   89         (2)
   90         (c) A person may not make a delivery sale of tobacco
   91  products to any individual who is not the minimum age for
   92  purchase an adult.
   93         (3) A person may not mail, ship, or otherwise deliver
   94  tobacco products in connection with an order for a delivery sale
   95  unless, before the first delivery to the consumer, the person
   96  accepting the order for the delivery sale:
   97         (a) Obtains from the individual submitting the order a
   98  certification that includes:
   99         1. Reliable confirmation that the individual is the minimum
  100  age for purchase an adult; and
  101         2. A statement signed by the individual in writing and
  102  under penalty of perjury which:
  103         a. Certifies the address and date of birth of the
  104  individual; and
  105         b. Confirms that the individual wants to receive delivery
  106  sales from a tobacco company and understands that, under the
  107  laws of this state, the following actions are illegal:
  108         (I) Signing another individual’s name to the certification;
  109         (II) Selling tobacco products to individuals under the
  110  legal minimum purchase age; and
  111         (III) Purchasing tobacco products, if the person making the
  112  purchase is under the legal minimum purchase age.
  113  
  114  In addition to the requirements of this subsection, a person
  115  accepting an order for a delivery sale may request that a
  116  consumer provide an electronic mail address.
  117         (4) The notice described in paragraph (3)(c) must include
  118  prominent and clearly legible statements that sales of tobacco
  119  products are:
  120         (a) Illegal if made to individuals who are not the minimum
  121  age for purchase adults.
  122  
  123  The notice must include an explanation of how each tax has been,
  124  or is to be, paid with respect to the delivery sale.
  125         (5) Each person who mails, ships, or otherwise delivers
  126  tobacco products in connection with an order for a delivery sale
  127  must:
  128         (a) Include as part of the shipping documents, in a clear
  129  and conspicuous manner, the following statement: “Tobacco
  130  Products: Florida law prohibits shipping to individuals under 21
  131  18 years of age and requires the payment of all applicable
  132  taxes.”
  133         (b) Use a method of mailing, shipping, or delivery which
  134  obligates the delivery service to require:
  135         1. The individual submitting the order for the delivery
  136  sale or another individual who is the minimum age for purchase
  137  adult who resides at the individual’s address to sign his or her
  138  name to accept delivery of the shipping container. Proof of the
  139  legal minimum purchase age of the individual accepting delivery
  140  is required only if the individual appears to be under 27 years
  141  of age.
  142         2. Proof that the individual is either the addressee or the
  143  individual who is the minimum age for purchase adult designated
  144  by the addressee, in the form of a valid, government-issued
  145  identification card bearing a photograph of the individual who
  146  signs to accept delivery of the shipping container.
  147         (c) Provide to the delivery service, if such service is
  148  used, evidence of full compliance with subsection (7).
  149  
  150  If the person accepting a purchase order for a delivery sale
  151  delivers the tobacco products without using a delivery service,
  152  the person must comply with all of the requirements of this
  153  section which apply to a delivery service. Any failure to comply
  154  with a requirement of this section constitutes a violation
  155  thereof.
  156         (8)(a) Except as otherwise provided in this section, a
  157  violation of this section by a person other than an individual
  158  who is not the minimum age for purchase an adult is a
  159  misdemeanor of the first degree, punishable as provided in s.
  160  775.082 or s. 775.083, and:
  161         1. For a first violation of this section, the person shall
  162  be fined $1,000 or five times the retail value of the tobacco
  163  products involved in the violation, whichever is greater.
  164         2. For a second or subsequent violation of this section,
  165  the person shall be fined $5,000 or five times the retail value
  166  of the tobacco products involved in the violation, whichever is
  167  greater.
  168         (b) A person who is the minimum age for purchase an adult
  169  and knowingly submits a false certification under subsection (3)
  170  commits a misdemeanor of the first degree, punishable as
  171  provided in s. 775.082 or s. 775.083. For each offense, the
  172  person shall be fined $10,000 or five times the retail value of
  173  the tobacco products involved in the violation, whichever is
  174  greater.
  175         (e) A person who, in connection with a delivery sale,
  176  delivers tobacco products on behalf of a delivery service to an
  177  individual who is not the minimum age for purchase an adult
  178  commits a misdemeanor of the third degree, punishable as
  179  provided in s. 775.082 or s. 775.083.
  180         (g) An individual who is not the minimum age for purchase
  181  an adult and who knowingly violates any provision of this
  182  section commits a misdemeanor of the third degree, punishable as
  183  provided in s. 775.082 or s. 775.083.
  184         Section 4. Subsection (1) of section 386.212, Florida
  185  Statutes, is amended to read:
  186         386.212 Smoking prohibited near school property; penalty.—
  187         (1) It is unlawful for any person under 21 18 years of age
  188  to smoke tobacco in, on, or within 1,000 feet of the real
  189  property comprising a public or private elementary, middle, or
  190  secondary school between the hours of 6 a.m. and midnight. This
  191  section does not apply to any person occupying a moving vehicle
  192  or within a private residence.
  193         Section 5. Present subsections (3) through (7) of section
  194  569.002, Florida Statutes, are redesignated as subsections (4)
  195  through (8), respectively, a new subsection (3) is added to that
  196  section, and present subsection (7) is amended, to read:
  197         569.002 Definitions.—As used in this chapter, the term:
  198         (3)“The minimum age for purchase” means 21 years of age.
  199         (8)(7) “Any person under the minimum age of purchase 18”
  200  does not include any person under the minimum age of purchase 18
  201  who:
  202         (a)Has had his or her disability of nonage removed under
  203  chapter 743;
  204         (a)(b) Is in the military reserve or on active duty in the
  205  Armed Forces of the United States; or
  206         (c)Is otherwise emancipated by a court of competent
  207  jurisdiction and released from parental care and responsibility;
  208  or
  209         (b)(d) Is acting in his or her scope of lawful employment
  210  with an entity licensed under the provisions of chapter 210 or
  211  this chapter.
  212         Section 6. Subsections (1) and (2) of section 569.007,
  213  Florida Statutes, are amended to read:
  214         569.007 Sale or delivery of tobacco products;
  215  restrictions.—
  216         (1) In order to prevent persons under the minimum age of
  217  purchase 18 years of age from purchasing or receiving tobacco
  218  products, the sale or delivery of tobacco products is
  219  prohibited, except:
  220         (a) When under the direct control or line of sight of the
  221  dealer or the dealer’s agent or employee; or
  222         (b) Sales from a vending machine are prohibited under the
  223  provisions of paragraph (1)(a) and are only permissible from a
  224  machine that is equipped with an operational lockout device
  225  which is under the control of the dealer or the dealer’s agent
  226  or employee who directly regulates the sale of items through the
  227  machine by triggering the lockout device to allow the dispensing
  228  of one tobacco product. The lockout device must include a
  229  mechanism to prevent the machine from functioning if the power
  230  source for the lockout device fails or if the lockout device is
  231  disabled, and a mechanism to ensure that only one tobacco
  232  product is dispensed at a time.
  233         (2) The provisions of subsection (1) shall not apply to an
  234  establishment that prohibits persons under 21 18 years of age on
  235  the licensed premises.
  236         Section 7. Section 569.0075, Florida Statutes, is amended
  237  to read:
  238         569.0075 Gift of sample tobacco products prohibited.—The
  239  gift of sample tobacco products to any person under the minimum
  240  age for purchase age of 18 by an entity licensed or permitted
  241  under the provisions of chapter 210 or this chapter, or by an
  242  employee of such entity, is prohibited and is punishable as
  243  provided in s. 569.101.
  244         Section 8. Subsections (1), (2), and (3) of section
  245  569.008, Florida Statutes, are amended to read:
  246         569.008 Responsible retail tobacco products dealers;
  247  qualifications; mitigation of disciplinary penalties; diligent
  248  management and supervision; presumption.—
  249         (1) The Legislature intends to prevent the sale of tobacco
  250  products to persons under the minimum age for purchase 18 years
  251  of age and to encourage retail tobacco products dealers to
  252  comply with responsible practices in accordance with this
  253  section.
  254         (2) To qualify as a responsible retail tobacco products
  255  dealer, the dealer must establish and implement procedures
  256  designed to ensure that the dealer’s employees comply with the
  257  provisions of this chapter. The dealer must provide a training
  258  program for the dealer’s employees which addresses the use and
  259  sale of tobacco products and which includes at least the
  260  following topics:
  261         (a) Laws covering the sale of tobacco products.
  262         (b) Methods of recognizing and handling customers under the
  263  minimum age for purchase 18 years of age.
  264         (c) Procedures for proper examination of identification
  265  cards in order to verify that customers are not under the
  266  minimum age for purchase 18 years of age.
  267         (d) The use of the age audit identification function on
  268  electronic point-of-sale equipment, where available.
  269         (3) In determining penalties under s. 569.006, the division
  270  may mitigate penalties imposed against a dealer because of an
  271  employee’s illegal sale of a tobacco product to a person under
  272  the minimum age for purchase 18 years of age if the following
  273  conditions are met:
  274         (a) The dealer is qualified as a responsible dealer under
  275  this section.
  276         (b) The dealer provided the training program required under
  277  subsection (2) to that employee before the illegal sale
  278  occurred.
  279         (c) The dealer had no knowledge of that employee’s
  280  violation at the time of the violation and did not direct,
  281  approve, or participate in the violation.
  282         (d) If the sale was made through a vending machine, the
  283  machine was equipped with an operational lock-out device.
  284         Section 9. Section 569.101, Florida Statutes, is amended to
  285  read:
  286         569.101 Selling, delivering, bartering, furnishing, or
  287  giving tobacco products to persons under the minimum age for
  288  purchase 18 years of age; criminal penalties; defense.—
  289         (1) It is unlawful to sell, deliver, barter, furnish, or
  290  give, directly or indirectly, to any person who is under the
  291  minimum age for purchase 18 years of age, any tobacco product.
  292         (2) Any person who violates subsection (1) commits a
  293  misdemeanor of the second degree, punishable as provided in s.
  294  775.082 or s. 775.083. However, any person who violates
  295  subsection (1) for a second or subsequent time within 1 year of
  296  the first violation, commits a misdemeanor of the first degree,
  297  punishable as provided in s. 775.082 or s. 775.083.
  298         (3) A person charged with a violation of subsection (1) has
  299  a complete defense if, at the time the tobacco product was sold,
  300  delivered, bartered, furnished, or given:
  301         (a) The buyer or recipient falsely evidenced that she or he
  302  was the minimum age for purchase 18 years of age or older;
  303         (b) The appearance of the buyer or recipient was such that
  304  a prudent person would believe the buyer or recipient to be the
  305  minimum age for purchase 18 years of age or older; and
  306         (c) Such person carefully checked a driver license or an
  307  identification card issued by this state or another state of the
  308  United States, a passport, or a United States armed services
  309  identification card presented by the buyer or recipient and
  310  acted in good faith and in reliance upon the representation and
  311  appearance of the buyer or recipient in the belief that the
  312  buyer or recipient was the minimum age for purchase 18 years of
  313  age or older.
  314         Section 10. Section 569.11, Florida Statutes, is amended to
  315  read:
  316         569.11 Possession, misrepresenting age or military service
  317  to purchase, and purchase of tobacco products by persons under
  318  the minimum age for purchase 18 years of age prohibited;
  319  penalties; jurisdiction; disposition of fines.—
  320         (1) It is unlawful for any person under the minimum age for
  321  purchase 18 years of age to knowingly possess any tobacco
  322  product. Any person under the minimum age for purchase 18 years
  323  of age who violates the provisions of this subsection commits a
  324  noncriminal violation as provided in s. 775.08(3), punishable
  325  by:
  326         (a) For a first violation, 16 hours of community service
  327  or, instead of community service, a $25 fine. In addition, the
  328  person must attend a school-approved anti-tobacco program, if
  329  locally available;
  330         (b) For a second violation within 12 weeks of the first
  331  violation, a $25 fine; or
  332         (c) For a third or subsequent violation within 12 weeks of
  333  the first violation, the court must direct the Department of
  334  Highway Safety and Motor Vehicles to withhold issuance of or
  335  suspend or revoke the person’s driver license or driving
  336  privilege, as provided in s. 322.056.
  337  
  338  Any second or subsequent violation not within the 12-week time
  339  period after the first violation is punishable as provided for a
  340  first violation.
  341         (2) It is unlawful for any person under the minimum age for
  342  purchase 18 years of age to misrepresent his or her age or
  343  military service for the purpose of inducing a dealer or an
  344  agent or employee of the dealer to sell, give, barter, furnish,
  345  or deliver any tobacco product, or to purchase, or attempt to
  346  purchase, any tobacco product from a person or a vending
  347  machine. Any person under the minimum age for purchase 18 years
  348  of age who violates a provision of this subsection commits a
  349  noncriminal violation as provided in s. 775.08(3), punishable
  350  by:
  351         (a) For a first violation, 16 hours of community service
  352  or, instead of community service, a $25 fine and, in addition,
  353  the person must attend a school-approved anti-tobacco program,
  354  if available;
  355         (b) For a second violation within 12 weeks of the first
  356  violation, a $25 fine; or
  357         (c) For a third or subsequent violation within 12 weeks of
  358  the first violation, the court must direct the Department of
  359  Highway Safety and Motor Vehicles to withhold issuance of or
  360  suspend or revoke the person’s driver license or driving
  361  privilege, as provided in s. 322.056.
  362  
  363  Any second or subsequent violation not within the 12-week time
  364  period after the first violation is punishable as provided for a
  365  first violation.
  366         (3) Any person under the minimum age for purchase 18 years
  367  of age cited for committing a noncriminal violation under this
  368  section must sign and accept a civil citation indicating a
  369  promise to appear before the county court or comply with the
  370  requirement for paying the fine and must attend a school
  371  approved anti-tobacco program, if locally available. If a fine
  372  is assessed for a violation of this section, the fine must be
  373  paid within 30 days after the date of the citation or, if a
  374  court appearance is mandatory, within 30 days after the date of
  375  the hearing.
  376         (4) A person charged with a noncriminal violation under
  377  this section must appear before the county court or comply with
  378  the requirement for paying the fine. The court, after a hearing,
  379  shall make a determination as to whether the noncriminal
  380  violation was committed. If the court finds the violation was
  381  committed, it shall impose an appropriate penalty as specified
  382  in subsection (1) or subsection (2). A person who participates
  383  in community service shall be considered an employee of the
  384  state for the purpose of chapter 440, for the duration of such
  385  service.
  386         (5)(a) If a person under the minimum age for purchase 18
  387  years of age is found by the court to have committed a
  388  noncriminal violation under this section and that person has
  389  failed to complete community service, pay the fine as required
  390  by paragraph (1)(a) or paragraph (2)(a), or attend a school
  391  approved anti-tobacco program, if locally available, the court
  392  must direct the Department of Highway Safety and Motor Vehicles
  393  to withhold issuance of or suspend the driver license or driving
  394  privilege of that person for a period of 30 consecutive days.
  395         (b) If a person under the minimum age for purchase 18 years
  396  of age is found by the court to have committed a noncriminal
  397  violation under this section and that person has failed to pay
  398  the applicable fine as required by paragraph (1)(b) or paragraph
  399  (2)(b), the court must direct the Department of Highway Safety
  400  and Motor Vehicles to withhold issuance of or suspend the driver
  401  license or driving privilege of that person for a period of 45
  402  consecutive days.
  403         (6) Eighty percent of all civil penalties received by a
  404  county court pursuant to this section shall be remitted by the
  405  clerk of the court to the Department of Revenue for transfer to
  406  the Department of Education to provide for teacher training and
  407  for research and evaluation to reduce and prevent the use of
  408  tobacco products by children. The remaining 20 percent of civil
  409  penalties received by a county court pursuant to this section
  410  shall remain with the clerk of the county court to cover
  411  administrative costs.
  412         Section 11. Paragraph (b) of subsection (2) and subsection
  413  (3) of section 569.12, Florida Statutes, are amended to read:
  414         569.12 Jurisdiction; tobacco product enforcement officers
  415  or agents; enforcement.—
  416         (2)
  417         (b) A tobacco product enforcement officer is authorized to
  418  issue a citation to a person under the minimum age for purchase
  419  of 18 when, based upon personal investigation, the officer has
  420  reasonable cause to believe that the person has committed a
  421  civil infraction in violation of s. 386.212 or s. 569.11.
  422         (3) A correctional probation officer as defined in s.
  423  943.10(3) is authorized to issue a citation to a person under
  424  the minimum age for purchase of 18 when, based upon personal
  425  investigation, the officer has reasonable cause to believe that
  426  the person has committed a civil infraction in violation of s.
  427  569.11.
  428         Section 12. Section 569.14, Florida Statutes, is amended to
  429  read:
  430         569.14 Posting of a sign stating that the sale of tobacco
  431  products to persons under the minimum age for purchase 18 years
  432  of age is unlawful; enforcement; penalty.—
  433         (1) A dealer that sells tobacco products shall post a clear
  434  and conspicuous sign in each place of business where such
  435  products are sold which substantially states the following:
  436  
  437         THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
  438         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  439         REQUIRED FOR PURCHASE.
  440  
  441         (2) A dealer that sells tobacco products and nicotine
  442  products or nicotine dispensing devices, as defined in s.
  443  877.112, may use a sign that substantially states the following:
  444  
  445         THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
  446         NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
  447         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  448         REQUIRED FOR PURCHASE.
  449  
  450  A dealer that uses a sign as described in this subsection meets
  451  the signage requirements of subsection (1) and s. 877.112.
  452         (3) The division shall make available to dealers of tobacco
  453  products signs that meet the requirements of subsection (1) or
  454  subsection (2).
  455         (4) Any dealer that sells tobacco products shall provide at
  456  the checkout counter in a location clearly visible to the dealer
  457  or the dealer’s agent or employee instructional material in a
  458  calendar format or similar format to assist in determining
  459  whether a person is of legal age to purchase tobacco products.
  460  This point of sale material must contain substantially the
  461  following language:
  462  
  463                IF YOU WERE NOT BORN BEFORE THIS DATE              
  464                  (insert date and applicable year)                
  465              YOU CANNOT BE SOLD BUY TOBACCO PRODUCTS.             
  466  
  467  Upon approval by the division, in lieu of a calendar a dealer
  468  may use card readers, scanners, or other electronic or automated
  469  systems that can verify whether a person is of legal age to
  470  purchase tobacco products. Failure to comply with the provisions
  471  contained in this subsection shall result in imposition of
  472  administrative penalties as provided in s. 569.006.
  473         (5) The division, through its agents and inspectors, shall
  474  enforce this section.
  475         (6) Any person who fails to comply with subsection (1) is
  476  guilty of a misdemeanor of the second degree, punishable as
  477  provided in s. 775.082 or s. 775.083.
  478         Section 13. Subsections (3) and (4) of section 569.19,
  479  Florida Statutes, are amended to read:
  480         569.19 Annual report.—The division shall report annually
  481  with written findings to the Legislature and the Governor by
  482  December 31, on the progress of implementing the enforcement
  483  provisions of this chapter. This must include, but is not
  484  limited to:
  485         (3) The number of violations for selling tobacco products
  486  to persons under the minimum age for purchase 18, and the
  487  results of administrative hearings on the above and related
  488  issues.
  489         (4) The number of persons under the minimum age for
  490  purchase 18 cited for violations of s. 569.11 and sanctions
  491  imposed as a result of citation.
  492         Section 14. Section 877.112, Florida Statutes, is amended
  493  to read:
  494         877.112 Nicotine products and nicotine dispensing devices;
  495  prohibitions for persons under 21 years of age minors;
  496  penalties; civil fines; signage requirements; preemption.—
  497         (1) DEFINITIONS.—As used in this section, the term:
  498         (a)“Any person under 21 years of age” does not include any
  499  person under the age of 21 who:
  500         1.Is in the military reserve or on active duty in the
  501  Armed Forces of the United States; or
  502         2.Is acting in his or her scope of lawful employment with
  503  an entity that sells, manufactures, or distributes nicotine
  504  products or nicotine dispensing devices.
  505         (b)(a) “Nicotine dispensing device” means any product that
  506  employs an electronic, chemical, or mechanical means to produce
  507  vapor from a nicotine product, including, but not limited to, an
  508  electronic cigarette, electronic cigar, electronic cigarillo,
  509  electronic pipe, or other similar device or product, any
  510  replacement cartridge for such device, and any other container
  511  of nicotine in a solution or other form intended to be used with
  512  or within an electronic cigarette, electronic cigar, electronic
  513  cigarillo, electronic pipe, or other similar device or product.
  514         (c)(b) “Nicotine product” means any product that contains
  515  nicotine, including liquid nicotine, that is intended for human
  516  consumption, whether inhaled, chewed, absorbed, dissolved, or
  517  ingested by any means, but does not include a:
  518         1. Tobacco product, as defined in s. 569.002;
  519         2. Product regulated as a drug or device by the United
  520  States Food and Drug Administration under Chapter V of the
  521  federal Food, Drug, and Cosmetic Act; or
  522         3. Product that contains incidental nicotine.
  523         (d)(c) “Self-service merchandising” means the open display
  524  of nicotine products or nicotine dispensing devices, whether
  525  packaged or otherwise, for direct retail customer access and
  526  handling before purchase without the intervention or assistance
  527  of the retailer or the retailer’s owner, employee, or agent. An
  528  open display of such products and devices includes the use of an
  529  open display unit.
  530         (2) PROHIBITIONS ON SALE TO PERSONS UNDER 21 YEARS OF AGE
  531  MINORS.—It is unlawful to sell, deliver, barter, furnish, or
  532  give, directly or indirectly, to any person who is under 21 18
  533  years of age, any nicotine product or a nicotine dispensing
  534  device.
  535         (3) PROHIBITIONS ON GIFTING SAMPLES TO PERSONS UNDER 21
  536  YEARS OF AGE MINORS.—The gift of a sample nicotine product or
  537  nicotine dispensing device to any person under the age of 21 18
  538  by a retailer of nicotine products or nicotine dispensing
  539  devices, or by an employee of such retailer, is prohibited.
  540         (4) PENALTIES.—Any person who violates subsection (2) or
  541  subsection (3) commits a misdemeanor of the second degree,
  542  punishable as provided in s. 775.082 or s. 775.083. However, any
  543  person who violates subsection (2) or subsection (3) for a
  544  second or subsequent time within 1 year of the first violation
  545  commits a misdemeanor of the first degree, punishable as
  546  provided in s. 775.082 or s. 775.083.
  547         (5) AFFIRMATIVE DEFENSES.—A person charged with a violation
  548  of subsection (2) or subsection (3) has a complete defense if,
  549  at the time the nicotine product or nicotine dispensing device
  550  was sold, delivered, bartered, furnished, or given:
  551         (a) The buyer or recipient falsely evidenced that she or he
  552  was 21 18 years of age or older;
  553         (b) The appearance of the buyer or recipient was such that
  554  a prudent person would believe the buyer or recipient to be 21
  555  18 years of age or older; and
  556         (c) Such person carefully checked a driver license or an
  557  identification card issued by this state or another state of the
  558  United States, a passport, or a United States Armed Services
  559  identification card presented by the buyer or recipient and
  560  acted in good faith and in reliance upon the representation and
  561  appearance of the buyer or recipient in the belief that the
  562  buyer or recipient was 21 18 years of age or older.
  563         (6) PROHIBITIONS ON POSSESSION OF NICOTINE PRODUCTS OR
  564  NICOTINE DISPENSING DEVICES BY PERSONS UNDER 21 YEARS OF AGE
  565  MINORS.—It is unlawful for any person under 21 18 years of age
  566  to knowingly possess any nicotine product or a nicotine
  567  dispensing device. Any person under 21 18 years of age who
  568  violates this subsection commits a noncriminal violation as
  569  defined in s. 775.08(3), punishable by:
  570         (a) For a first violation, 16 hours of community service
  571  or, instead of community service, a $25 fine. In addition, the
  572  person must attend a school-approved anti-tobacco and nicotine
  573  program, if locally available;
  574         (b) For a second violation within 12 weeks of the first
  575  violation, a $25 fine; or
  576         (c) For a third or subsequent violation within 12 weeks of
  577  the first violation, the court must direct the Department of
  578  Highway Safety and Motor Vehicles to withhold issuance of or
  579  suspend or revoke the person’s driver license or driving
  580  privilege, as provided in s. 322.056.
  581  
  582  Any second or subsequent violation not within the 12-week time
  583  period after the first violation is punishable as provided for a
  584  first violation.
  585         (7) PROHIBITION ON MISREPRESENTING AGE.—It is unlawful for
  586  any person under 21 18 years of age to misrepresent his or her
  587  age or military service for the purpose of inducing a retailer
  588  of nicotine products or nicotine dispensing devices or an agent
  589  or employee of such retailer to sell, give, barter, furnish, or
  590  deliver any nicotine product or nicotine dispensing device, or
  591  to purchase, or attempt to purchase, any nicotine product or
  592  nicotine dispensing device from a person or a vending machine.
  593  Any person under 21 18 years of age who violates this subsection
  594  commits a noncriminal violation as defined in s. 775.08(3),
  595  punishable by:
  596         (a) For a first violation, 16 hours of community service
  597  or, instead of community service, a $25 fine and, in addition,
  598  the person must attend a school-approved anti-tobacco and
  599  nicotine program, if available;
  600         (b) For a second violation within 12 weeks of the first
  601  violation, a $25 fine; or
  602         (c) For a third or subsequent violation within 12 weeks of
  603  the first violation, the court must direct the Department of
  604  Highway Safety and Motor Vehicles to withhold issuance of or
  605  suspend or revoke the person’s driver license or driving
  606  privilege, as provided in s. 322.056.
  607  
  608  Any second or subsequent violation not within the 12-week time
  609  period after the first violation is punishable as provided for a
  610  first violation.
  611         (8) PENALTIES FOR PERSONS UNDER 21 YEARS OF AGE MINORS.—
  612         (a) A person under 21 18 years of age cited for committing
  613  a noncriminal violation under this section must sign and accept
  614  a civil citation indicating a promise to appear before the
  615  county court or comply with the requirement for paying the fine
  616  and must attend a school-approved anti-tobacco and nicotine
  617  program, if locally available. If a fine is assessed for a
  618  violation of this section, the fine must be paid within 30 days
  619  after the date of the citation or, if a court appearance is
  620  mandatory, within 30 days after the date of the hearing.
  621         (b) A person charged with a noncriminal violation under
  622  this section must appear before the county court or comply with
  623  the requirement for paying the fine. The court, after a hearing,
  624  shall make a determination as to whether the noncriminal
  625  violation was committed. If the court finds the violation was
  626  committed, it shall impose an appropriate penalty as specified
  627  in subsection (6) or subsection (7). A person who participates
  628  in community service shall be considered an employee of the
  629  state for the purpose of chapter 440, for the duration of such
  630  service.
  631         (c) If a person under 21 18 years of age is found by the
  632  court to have committed a noncriminal violation under this
  633  section and that person has failed to complete community
  634  service, pay the fine as required by paragraph (6)(a) or
  635  paragraph (7)(a), or attend a school-approved anti-tobacco and
  636  nicotine program, if locally available, the court must direct
  637  the Department of Highway Safety and Motor Vehicles to withhold
  638  issuance of or suspend the driver license or driving privilege
  639  of that person for 30 consecutive days.
  640         (d) If a person under 21 18 years of age is found by the
  641  court to have committed a noncriminal violation under this
  642  section and that person has failed to pay the applicable fine as
  643  required by paragraph (6)(b) or paragraph (7)(b), the court must
  644  direct the Department of Highway Safety and Motor Vehicles to
  645  withhold issuance of or suspend the driver license or driving
  646  privilege of that person for 45 consecutive days.
  647         (9) DISTRIBUTION OF CIVIL FINES.—Eighty percent of all
  648  civil penalties received by a county court pursuant to
  649  subsections (6) and (7) shall be remitted by the clerk of the
  650  court to the Department of Revenue for transfer to the
  651  Department of Education to provide for teacher training and for
  652  research and evaluation to reduce and prevent the use of tobacco
  653  products, nicotine products, or nicotine dispensing devices by
  654  children. The remaining 20 percent of civil penalties received
  655  by a county court pursuant to this section shall remain with the
  656  clerk of the county court to cover administrative costs.
  657         (10) SIGNAGE REQUIREMENTS FOR RETAILERS OF NICOTINE
  658  PRODUCTS AND NICOTINE DISPENSING DEVICES.—
  659         (a) Any retailer that sells nicotine products or nicotine
  660  dispensing devices shall post a clear and conspicuous sign in
  661  each place of business where such products are sold which
  662  substantially states the following:
  663  
  664         THE SALE OF NICOTINE PRODUCTS OR NICOTINE DISPENSING
  665         DEVICES TO PERSONS UNDER THE AGE OF 21 18 IS AGAINST
  666         FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
  667  
  668         (b) A retailer that sells nicotine products or nicotine
  669  dispensing devices shall provide at the checkout counter in a
  670  location clearly visible to the retailer or the retailer’s agent
  671  or employee instructional material in a calendar format or
  672  similar format to assist in determining whether a person is of
  673  legal age to purchase nicotine products or nicotine dispensing
  674  devices. This point of sale material must contain substantially
  675  the following language:
  676  
  677                IF YOU WERE NOT BORN BEFORE THIS DATE              
  678                  (insert date and applicable year)                
  679                 YOU CANNOT BUY NICOTINE PRODUCTS OR               
  680                    NICOTINE DISPENSING DEVICES.                   
  681  
  682  In lieu of a calendar a retailer may use card readers, scanners,
  683  or other electronic or automated systems that can verify whether
  684  a person is of legal age to purchase nicotine products or
  685  nicotine dispensing devices.
  686         (11) SELF-SERVICE MERCHANDISING PROHIBITED.—
  687         (a) A retailer that sells nicotine products or nicotine
  688  dispensing devices may not sell, permit to be sold, offer for
  689  sale, or display for sale such products or devices by means of
  690  self-service merchandising.
  691         (b) A retailer that sells nicotine products or nicotine
  692  dispensing devices may not place such products or devices in an
  693  open display unit unless the unit is located in an area that is
  694  inaccessible to customers.
  695         (c) Paragraphs (a) and (b) do not apply to an establishment
  696  that prohibits persons under 21 18 years of age on the premises.
  697         (12) RESTRICTIONS ON SALE OR DELIVERY OF NICOTINE PRODUCTS
  698  OR NICOTINE DISPENSING DEVICES.—
  699         (a) In order to prevent persons under 21 18 years of age
  700  from purchasing or receiving nicotine products or nicotine
  701  dispensing devices, the sale or delivery of such products or
  702  devices is prohibited, except:
  703         1. When under the direct control, or line of sight where
  704  effective control may be reasonably maintained, of the retailer
  705  of nicotine products or nicotine dispensing devices or such
  706  retailer’s agent or employee; or
  707         2. Sales from a vending machine are prohibited under
  708  subparagraph 1. and are only permissible from a machine that is
  709  equipped with an operational lockout device which is under the
  710  control of the retailer of nicotine products or nicotine
  711  dispensing devices or such retailer’s agent or employee who
  712  directly regulates the sale of items through the machine by
  713  triggering the lockout device to allow the dispensing of one
  714  nicotine product or nicotine dispensing device. The lockout
  715  device must include a mechanism to prevent the machine from
  716  functioning, if the power source for the lockout device fails or
  717  if the lockout device is disabled, and a mechanism to ensure
  718  that only one nicotine product or nicotine dispensing device is
  719  dispensed at a time.
  720         (b) Paragraph (a) does not apply to an establishment that
  721  prohibits persons under 21 18 years of age on the premises.
  722         (c) A retailer of nicotine products or nicotine dispensing
  723  devices or such retailer’s agent or employee may require proof
  724  of age of a purchaser of such products or devices before selling
  725  the product or device to that person.
  726         Section 15. This act shall take effect October 1, 2019.