Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. SB 810
       
       
       
       
       
       
                                Ì1557164Î155716                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/21/2020           .                                
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       The Committee on Health Policy (Simmons) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (b) of subsection (1) of section
    6  210.15, Florida Statutes, is amended to read:
    7         210.15 Permits.—
    8         (1)
    9         (b) Permits shall be issued only to persons of good moral
   10  character, who are not less than 21 18 years of age. Permits to
   11  corporations shall be issued only to corporations whose officers
   12  are of good moral character and not less than 21 18 years of
   13  age. There shall be no exemptions from the permit fees herein
   14  provided to any persons, association of persons, or corporation,
   15  any law to the contrary notwithstanding.
   16         Section 2. Subsection (1) of section 386.212, Florida
   17  Statutes, is amended to read:
   18         386.212 Smoking and vaping prohibited near school property;
   19  penalty.—
   20         (1) It is unlawful for any person under 21 18 years of age
   21  to smoke tobacco or vape in, on, or within 1,000 feet of the
   22  real property comprising a public or private elementary, middle,
   23  or secondary school between the hours of 6 a.m. and midnight.
   24  This section does not apply to any person occupying a moving
   25  vehicle or within a private residence.
   26         Section 3. Subsections (6) and (7) of section 569.002,
   27  Florida Statutes, are amended to read:
   28         569.002 Definitions.—As used in this chapter, the term:
   29         (6) “Tobacco products” includes:
   30         (a)Any product containing, made of, or derived from
   31  tobacco or nicotine that is intended for human consumption or is
   32  likely to be consumed, whether inhaled, absorbed, or ingested by
   33  any other means, including, but not limited to, a cigarette, a
   34  cigar, pipe tobacco, chewing tobacco, snuff, or snus;
   35         (b)Any vapor-generating electronic device and any
   36  substances that may be aerosolized or vaporized by such device,
   37  whether or not the substance contains nicotine; or
   38         (c)Any component, part, or accessory of a product
   39  described in paragraph (a) or paragraph (b), whether or not any
   40  of these contain tobacco or nicotine, including, but not limited
   41  to, filters, rolling papers, blunt or hemp wraps, and pipes.
   42  
   43  The term does not include drugs, devices, or combination
   44  products authorized for sale by the United States Food and Drug
   45  Administration, as those terms are defined in the Federal Food,
   46  Drug, and Cosmetic Act loose tobacco leaves, and products made
   47  from tobacco leaves, in whole or in part, and cigarette
   48  wrappers, which can be used for smoking, sniffing, or chewing.
   49         (7) “Vapor-generating electronic device” means any product
   50  that employs an electronic, chemical, or mechanical means
   51  capable of producing vapor or aerosol from a nicotine product or
   52  any other substance, including, but not limited to, an
   53  electronic cigarette, electronic cigar, electronic cigarillo,
   54  electronic pipe, or other similar device or product; any
   55  replacement cartridge for such device; and any other container
   56  of nicotine in a solution or other substance form intended to be
   57  used with or within an electronic cigarette, an electronic
   58  cigar, an electronic cigarillo, an electronic pipe, a vape pen,
   59  an electronic hookah, or other similar device or product. The
   60  term includes any component, part, or accessory of the device
   61  and also includes any substance intended to be aerosolized or
   62  vaporized during the use of the device, whether or not the
   63  substance contains nicotine.
   64  
   65  The term does not include drugs, devices, or combination
   66  products authorized for sale by the United States Food and Drug
   67  Administration, as those terms are defined in the Federal Food,
   68  Drug, and Cosmetic Act “Any person under the age of 18” does not
   69  include any person under the age of 18 who:
   70         (a) Has had his or her disability of nonage removed under
   71  chapter 743;
   72         (b) Is in the military reserve or on active duty in the
   73  Armed Forces of the United States;
   74         (c) Is otherwise emancipated by a court of competent
   75  jurisdiction and released from parental care and responsibility;
   76  or
   77         (d) Is acting in his or her scope of lawful employment with
   78  an entity licensed under the provisions of chapter 210 or this
   79  chapter.
   80         Section 4. Paragraph (a) of subsection (2) of section
   81  569.003, Florida Statutes, is amended to read:
   82         569.003 Retail tobacco products dealer permits;
   83  application; qualifications; fees; renewal; duplicates.—
   84         (2)(a) Permits may be issued only to persons who are 21 18
   85  years of age or older or to corporations the officers of which
   86  are 21 18 years of age or older.
   87         Section 5. Subsections (1) and (2) of section 569.007,
   88  Florida Statutes, are amended to read:
   89         569.007 Sale or delivery of tobacco products;
   90  restrictions.—
   91         (1) In order to prevent persons under 21 18 years of age
   92  from purchasing or receiving tobacco products, the sale or
   93  delivery of tobacco products is prohibited, except:
   94         (a) When under the direct control or line of sight of the
   95  dealer or the dealer’s agent or employee; or
   96         (b) Sales from a vending machine are prohibited under the
   97  provisions of paragraph (1)(a) and are only permissible from a
   98  machine that is located in an establishment that prohibits
   99  persons under 21 years of age on the licensed premises at all
  100  times equipped with an operational lockout device which is under
  101  the control of the dealer or the dealer’s agent or employee who
  102  directly regulates the sale of items through the machine by
  103  triggering the lockout device to allow the dispensing of one
  104  tobacco product. The lockout device must include a mechanism to
  105  prevent the machine from functioning if the power source for the
  106  lockout device fails or if the lockout device is disabled, and a
  107  mechanism to ensure that only one tobacco product is dispensed
  108  at a time.
  109         (2)The provisions of subsection (1) shall not apply to an
  110  establishment that prohibits persons under 18 years of age on
  111  the licensed premises.
  112         Section 6. Section 569.101, Florida Statutes, is amended to
  113  read:
  114         569.101 Selling, delivering, bartering, furnishing, or
  115  giving tobacco products to persons under 21 18 years of age;
  116  criminal penalties; defense.—
  117         (1) It is unlawful to sell, deliver, barter, furnish, or
  118  give, directly or indirectly, to any person who is under 21 18
  119  years of age, any tobacco product.
  120         (2) Any person who violates subsection (1) commits a
  121  misdemeanor of the second degree, punishable as provided in s.
  122  775.082 or s. 775.083. However, any person who violates
  123  subsection (1) for a second or subsequent time within 1 year of
  124  the first violation, commits a misdemeanor of the first degree,
  125  punishable as provided in s. 775.082 or s. 775.083.
  126         (3) A person charged with a violation of subsection (1) has
  127  a complete defense if, at the time the tobacco product was sold,
  128  delivered, bartered, furnished, or given:
  129         (a) The buyer or recipient falsely evidenced that she or he
  130  was 21 18 years of age or older;
  131         (b) The appearance of the buyer or recipient was such that
  132  a prudent person would believe the buyer or recipient to be 21
  133  18 years of age or older; and
  134         (c) Such person carefully checked a driver license or an
  135  identification card issued by this state or another state of the
  136  United States, a passport, or a United States armed services
  137  identification card presented by the buyer or recipient and
  138  acted in good faith and in reliance upon the representation and
  139  appearance of the buyer or recipient in the belief that the
  140  buyer or recipient was 21 18 years of age or older.
  141         (4) A person must verify by means of identification
  142  specified in paragraph (3)(c) that a person purchasing a tobacco
  143  product is not under 21 years of age. Such verification is not
  144  required for any person over the age of 29.
  145         Section 7. Section 877.112, Florida Statutes, is repealed.
  146         Section 8. Paragraphs (a) and (b) of subsection (5) of
  147  section 210.095, Florida Statutes, are amended to read:
  148         210.095 Mail order, Internet, and remote sales of tobacco
  149  products; age verification.—
  150         (5) Each person who mails, ships, or otherwise delivers
  151  tobacco products in connection with an order for a delivery sale
  152  must:
  153         (a) Include as part of the shipping documents, in a clear
  154  and conspicuous manner, the following statement: “Tobacco
  155  Products: Florida law prohibits shipping to individuals under 21
  156  18 years of age and requires the payment of all applicable
  157  taxes.”
  158         (b) Use a method of mailing, shipping, or delivery which
  159  obligates the delivery service to require:
  160         1. The individual submitting the order for the delivery
  161  sale or another adult who resides at the individual’s address to
  162  sign his or her name to accept delivery of the shipping
  163  container. Proof of the legal minimum purchase age of the
  164  individual accepting delivery is required only if the individual
  165  appears to be under 30 27 years of age.
  166         2. Proof that the individual is either the addressee or the
  167  adult designated by the addressee, in the form of a valid,
  168  government-issued identification card bearing a photograph of
  169  the individual who signs to accept delivery of the shipping
  170  container.
  171  
  172  If the person accepting a purchase order for a delivery sale
  173  delivers the tobacco products without using a delivery service,
  174  the person must comply with all of the requirements of this
  175  section which apply to a delivery service. Any failure to comply
  176  with a requirement of this section constitutes a violation
  177  thereof.
  178         Section 9. Section 569.0075, Florida Statutes, is amended
  179  to read:
  180         569.0075 Gift of sample tobacco products prohibited.—The
  181  gift of sample tobacco products to any person under the age of
  182  21 18 by an entity licensed or permitted under the provisions of
  183  chapter 210 or this chapter, or by an employee of such entity,
  184  is prohibited and is punishable as provided in s. 569.101.
  185         Section 10. Subsection (1), paragraphs (b) and (c) of
  186  subsection (2), and subsection (3) of section 569.008, Florida
  187  Statutes, are amended to read:
  188         569.008 Responsible retail tobacco products dealers;
  189  qualifications; mitigation of disciplinary penalties; diligent
  190  management and supervision; presumption.—
  191         (1) The Legislature intends to prevent the sale of tobacco
  192  products to persons under 21 18 years of age and to encourage
  193  retail tobacco products dealers to comply with responsible
  194  practices in accordance with this section.
  195         (2) To qualify as a responsible retail tobacco products
  196  dealer, the dealer must establish and implement procedures
  197  designed to ensure that the dealer’s employees comply with the
  198  provisions of this chapter. The dealer must provide a training
  199  program for the dealer’s employees which addresses the use and
  200  sale of tobacco products and which includes at least the
  201  following topics:
  202         (b) Methods of recognizing and handling customers under 21
  203  18 years of age.
  204         (c) Procedures for proper examination of identification
  205  cards in order to verify that customers are not under 21 18
  206  years of age.
  207         (3) In determining penalties under s. 569.006, the division
  208  may mitigate penalties imposed against a dealer because of an
  209  employee’s illegal sale of a tobacco product to a person under
  210  21 18 years of age if the following conditions are met:
  211         (a) The dealer is qualified as a responsible dealer under
  212  this section.
  213         (b) The dealer provided the training program required under
  214  subsection (2) to that employee before the illegal sale
  215  occurred.
  216         (c) The dealer had no knowledge of that employee’s
  217  violation at the time of the violation and did not direct,
  218  approve, or participate in the violation.
  219         (d) If the sale was made through a vending machine, the
  220  machine was equipped with an operational lock-out device.
  221         Section 11. Section 569.11, Florida Statutes, is amended to
  222  read:
  223         569.11 Possession, misrepresenting age or military service
  224  to purchase, and purchase of tobacco products by persons under
  225  21 18 years of age prohibited; penalties; jurisdiction;
  226  disposition of fines.—
  227         (1) It is unlawful for any person under 21 18 years of age
  228  to knowingly possess any tobacco product. Any person under 21 18
  229  years of age who violates this subsection commits a noncriminal
  230  violation as provided in s. 775.08(3), punishable by:
  231         (a) For a first violation, 16 hours of community service
  232  or, instead of community service, a $25 fine. In addition, the
  233  person must attend a school-approved anti-tobacco program, if
  234  locally available; or
  235         (b) For a second or subsequent violation within 12 weeks
  236  after the first violation, a $25 fine.
  237  
  238  Any second or subsequent violation not within the 12-week period
  239  after the first violation is punishable as provided for a first
  240  violation.
  241         (2) It is unlawful for any person under 21 18 years of age
  242  to misrepresent his or her age or military service for the
  243  purpose of inducing a dealer or an agent or employee of the
  244  dealer to sell, give, barter, furnish, or deliver any tobacco
  245  product, or to purchase, or attempt to purchase, any tobacco
  246  product from a person or a vending machine. Any person under 21
  247  18 years of age who violates this subsection commits a
  248  noncriminal violation as provided in s. 775.08(3), punishable
  249  by:
  250         (a) For a first violation, 16 hours of community service
  251  or, instead of community service, a $25 fine and, in addition,
  252  the person must attend a school-approved anti-tobacco program,
  253  if available; or
  254         (b) For a second or subsequent violation within 12 weeks
  255  after the first violation, a $25 fine.
  256  
  257  Any second or subsequent violation not within the 12-week period
  258  after the first violation is punishable as provided for a first
  259  violation.
  260         (3) Any person under 21 18 years of age cited for
  261  committing a noncriminal violation under this section must sign
  262  and accept a civil citation indicating a promise to appear
  263  before the county court or comply with the requirement for
  264  paying the fine and must attend a school-approved anti-tobacco
  265  program, if locally available. If a fine is assessed for a
  266  violation of this section, the fine must be paid within 30 days
  267  after the date of the citation or, if a court appearance is
  268  mandatory, within 30 days after the date of the hearing.
  269         (4) A person charged with a noncriminal violation under
  270  this section must appear before the county court or comply with
  271  the requirement for paying the fine. The court, after a hearing,
  272  shall make a determination as to whether the noncriminal
  273  violation was committed. If the court finds the violation was
  274  committed, it shall impose an appropriate penalty as specified
  275  in subsection (1) or subsection (2). A person who participates
  276  in community service shall be considered an employee of the
  277  state for the purpose of chapter 440, for the duration of such
  278  service.
  279         (5)(a) If a person under 21 18 years of age is found by the
  280  court to have committed a noncriminal violation under this
  281  section and that person has failed to complete community
  282  service, pay the fine as required by paragraph (1)(a) or
  283  paragraph (2)(a), or attend a school-approved anti-tobacco
  284  program, if locally available, the court may direct the
  285  Department of Highway Safety and Motor Vehicles to withhold
  286  issuance of or suspend the driver license or driving privilege
  287  of that person for a period of 30 consecutive days.
  288         (b) If a person under 21 18 years of age is found by the
  289  court to have committed a noncriminal violation under this
  290  section and that person has failed to pay the applicable fine as
  291  required by paragraph (1)(b) or paragraph (2)(b), the court may
  292  direct the Department of Highway Safety and Motor Vehicles to
  293  withhold issuance of or suspend the driver license or driving
  294  privilege of that person for a period of 45 consecutive days.
  295         (6) Eighty percent of all civil penalties received by a
  296  county court pursuant to this section shall be remitted by the
  297  clerk of the court to the Department of Revenue for transfer to
  298  the Department of Education to provide for teacher training and
  299  for research and evaluation to reduce and prevent the use of
  300  tobacco products by children. The remaining 20 percent of civil
  301  penalties received by a county court pursuant to this section
  302  shall remain with the clerk of the county court to cover
  303  administrative costs.
  304         Section 12. Paragraph (b) of subsection (2) and subsection
  305  (3) of section 569.12, Florida Statutes, are amended to read:
  306         569.12 Jurisdiction; tobacco product enforcement officers
  307  or agents; enforcement.—
  308         (2)
  309         (b) A tobacco product enforcement officer is authorized to
  310  issue a citation to a person under the age of 21 18 when, based
  311  upon personal investigation, the officer has reasonable cause to
  312  believe that the person has committed a civil infraction in
  313  violation of s. 386.212 or s. 569.11.
  314         (3) A correctional probation officer as defined in s.
  315  943.10(3) is authorized to issue a citation to a person under
  316  the age of 21 18 when, based upon personal investigation, the
  317  officer has reasonable cause to believe that the person has
  318  committed a civil infraction in violation of s. 569.11.
  319         Section 13. Section 569.14, Florida Statutes, is amended to
  320  read:
  321         569.14 Posting of a sign stating that the sale of tobacco
  322  products to persons under 21 18 years of age is unlawful;
  323  enforcement; penalty.—
  324         (1) A dealer that sells tobacco products shall post a clear
  325  and conspicuous sign in each place of business where such
  326  products are sold which substantially states the following:
  327  
  328         THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
  329         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  330         REQUIRED FOR PURCHASE.
  331  
  332         (2) A dealer that sells tobacco products and nicotine
  333  products or nicotine dispensing devices, as defined in s.
  334  877.112, may use a sign that substantially states the following:
  335  
  336         THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
  337         NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
  338         OF 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED
  339         FOR PURCHASE.
  340  
  341  A dealer that uses a sign as described in this subsection meets
  342  the signage requirements of subsection (1) and s. 877.112.
  343         (3) The division shall make available to dealers of tobacco
  344  products signs that meet the requirements of subsection (1) or
  345  subsection (2).
  346         (3)(4) Any dealer that sells tobacco products shall provide
  347  at the checkout counter in a location clearly visible to the
  348  dealer or the dealer’s agent or employee instructional material
  349  in a calendar format or similar format to assist in determining
  350  whether a person is of legal age to purchase tobacco products.
  351  This point of sale material must contain substantially the
  352  following language:
  353  
  354                IF YOU WERE NOT BORN BEFORE THIS DATE              
  355                  (insert date and applicable year)                
  356                  YOU CANNOT BUY TOBACCO PRODUCTS.                 
  357  
  358  Upon approval by the division, in lieu of a calendar a dealer
  359  may use card readers, scanners, or other electronic or automated
  360  systems that can verify whether a person is of legal age to
  361  purchase tobacco products. Failure to comply with the provisions
  362  contained in this subsection shall result in imposition of
  363  administrative penalties as provided in s. 569.006.
  364         (4)(5) The division, through its agents and inspectors,
  365  shall enforce this section.
  366         (5)(6) Any person who fails to comply with subsection (1)
  367  is guilty of a misdemeanor of the second degree, punishable as
  368  provided in s. 775.082 or s. 775.083.
  369         Section 14. Subsections (3) and (4) of section 569.19,
  370  Florida Statutes, are amended to read:
  371         569.19 Annual report.—The division shall report annually
  372  with written findings to the Legislature and the Governor by
  373  December 31, on the progress of implementing the enforcement
  374  provisions of this chapter. This must include, but is not
  375  limited to:
  376         (3) The number of violations for selling tobacco products
  377  to persons under age 21 18, and the results of administrative
  378  hearings on the above and related issues.
  379         (4) The number of persons under age 21 18 cited for
  380  violations of s. 569.11 and sanctions imposed as a result of
  381  citation.
  382         Section 15.  This act shall take effect October 1, 2020, if
  383  SB ___ or similar legislation is adopted in the same legislative
  384  session or an extension thereof and becomes a law.
  385  
  386  ================= T I T L E  A M E N D M E N T ================
  387  And the title is amended as follows:
  388         Delete everything before the enacting clause
  389  and insert:
  390                        A bill to be entitled                      
  391         An act relating to tobacco and nicotine products;
  392         amending s. 210.15, F.S.; revising the age limits for
  393         permits relating to cigarettes; amending s. 386.212,
  394         F.S.; revising age and time restrictions relating to
  395         the prohibition of smoking and vaping near school
  396         property; amending s. 569.002, F.S.; revising the
  397         definition of the term “tobacco products”; defining
  398         the term “vapor-generating electronic device”;
  399         deleting the term “any person under the age of 18”;
  400         amending s. 569.003, F.S.; revising the age limits for
  401         retail tobacco products dealer permits; amending s.
  402         569.007, F.S.; revising prohibitions on the sale of
  403         tobacco products from vending machines; conforming
  404         provisions to federal law; amending s. 569.101, F.S.;
  405         requiring that the age of persons purchasing tobacco
  406         products be verified under certain circumstances;
  407         repealing s. 877.112, F.S., relating to nicotine
  408         products and nicotine dispensing devices; amending ss.
  409         210.095, 569.0075, 569.008, 569.11, 569.12, 569.14,
  410         and 569.19, F.S.; conforming provisions to federal
  411         law; conforming provisions to changes made by the act;
  412         providing a contingent effective date.