Florida Senate - 2020                              CS for SB 810
       
       
        
       By the Committee on Health Policy; and Senator Simmons
       
       
       
       
       
       588-02402-20                                           2020810c1
    1                        A bill to be entitled                      
    2         An act relating to tobacco and nicotine products;
    3         amending s. 210.15, F.S.; revising the age limits for
    4         permits relating to cigarettes; amending s. 386.212,
    5         F.S.; revising age and time restrictions relating to
    6         the prohibition of smoking and vaping near school
    7         property; amending s. 569.002, F.S.; revising the
    8         definition of the term “tobacco products”; defining
    9         the term “vapor-generating electronic device”;
   10         deleting the term “any person under the age of 18”;
   11         amending s. 569.003, F.S.; revising the age limits for
   12         retail tobacco products dealer permits; amending s.
   13         569.007, F.S.; revising prohibitions on the sale of
   14         tobacco products from vending machines; conforming
   15         provisions to federal law; amending s. 569.101, F.S.;
   16         requiring that the age of persons purchasing tobacco
   17         products be verified under certain circumstances;
   18         repealing s. 877.112, F.S., relating to nicotine
   19         products and nicotine dispensing devices; amending ss.
   20         210.095, 569.0075, 569.008, 569.11, 569.12, 569.14,
   21         and 569.19, F.S.; conforming provisions to federal
   22         law; conforming provisions to changes made by the act;
   23         providing a contingent effective date.
   24          
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Paragraph (b) of subsection (1) of section
   28  210.15, Florida Statutes, is amended to read:
   29         210.15 Permits.—
   30         (1)
   31         (b) Permits shall be issued only to persons of good moral
   32  character, who are not less than 21 18 years of age. Permits to
   33  corporations shall be issued only to corporations whose officers
   34  are of good moral character and not less than 21 18 years of
   35  age. There shall be no exemptions from the permit fees herein
   36  provided to any persons, association of persons, or corporation,
   37  any law to the contrary notwithstanding.
   38         Section 2. Subsection (1) of section 386.212, Florida
   39  Statutes, is amended to read:
   40         386.212 Smoking and vaping prohibited near school property;
   41  penalty.—
   42         (1) It is unlawful for any person under 21 18 years of age
   43  to smoke tobacco or vape in, on, or within 1,000 feet of the
   44  real property comprising a public or private elementary, middle,
   45  or secondary school between the hours of 6 a.m. and midnight.
   46  This section does not apply to any person occupying a moving
   47  vehicle or within a private residence.
   48         Section 3. Subsections (6) and (7) of section 569.002,
   49  Florida Statutes, are amended to read:
   50         569.002 Definitions.—As used in this chapter, the term:
   51         (6) “Tobacco products” includes:
   52         (a)Any product containing, made of, or derived from
   53  tobacco or nicotine that is intended for human consumption or is
   54  likely to be consumed, whether inhaled, absorbed, or ingested by
   55  any other means, including, but not limited to, a cigarette, a
   56  cigar, pipe tobacco, chewing tobacco, snuff, or snus;
   57         (b)Any vapor-generating electronic device and any
   58  substances that may be aerosolized or vaporized by such device,
   59  whether or not the substance contains nicotine; or
   60         (c)Any component, part, or accessory of a product
   61  described in paragraph (a) or paragraph (b), whether or not any
   62  of these contain tobacco or nicotine, including, but not limited
   63  to, filters, rolling papers, blunt or hemp wraps, and pipes.
   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 loose tobacco leaves, and products made
   69  from tobacco leaves, in whole or in part, and cigarette
   70  wrappers, which can be used for smoking, sniffing, or chewing.
   71         (7) “Vapor-generating electronic device” means any product
   72  that employs an electronic, chemical, or mechanical means
   73  capable of producing vapor or aerosol from a nicotine product or
   74  any other substance, including, but not limited to, an
   75  electronic cigarette, electronic cigar, electronic cigarillo,
   76  electronic pipe, or other similar device or product; any
   77  replacement cartridge for such device; and any other container
   78  of nicotine in a solution or other substance form intended to be
   79  used with or within an electronic cigarette, an electronic
   80  cigar, an electronic cigarillo, an electronic pipe, a vape pen,
   81  an electronic hookah, or other similar device or product. The
   82  term includes any component, part, or accessory of the device
   83  and also includes any substance intended to be aerosolized or
   84  vaporized during the use of the device, whether or not the
   85  substance contains nicotine.
   86  
   87  The term does not include drugs, devices, or combination
   88  products authorized for sale by the United States Food and Drug
   89  Administration, as those terms are defined in the Federal Food,
   90  Drug, and Cosmetic Act “Any person under the age of 18” does not
   91  include any person under the age of 18 who:
   92         (a) Has had his or her disability of nonage removed under
   93  chapter 743;
   94         (b) Is in the military reserve or on active duty in the
   95  Armed Forces of the United States;
   96         (c) Is otherwise emancipated by a court of competent
   97  jurisdiction and released from parental care and responsibility;
   98  or
   99         (d) Is acting in his or her scope of lawful employment with
  100  an entity licensed under the provisions of chapter 210 or this
  101  chapter.
  102         Section 4. Paragraph (a) of subsection (2) of section
  103  569.003, Florida Statutes, is amended to read:
  104         569.003 Retail tobacco products dealer permits;
  105  application; qualifications; fees; renewal; duplicates.—
  106         (2)(a) Permits may be issued only to persons who are 21 18
  107  years of age or older or to corporations the officers of which
  108  are 21 18 years of age or older.
  109         Section 5. Subsections (1) and (2) of section 569.007,
  110  Florida Statutes, are amended to read:
  111         569.007 Sale or delivery of tobacco products;
  112  restrictions.—
  113         (1) In order to prevent persons under 21 18 years of age
  114  from purchasing or receiving tobacco products, the sale or
  115  delivery of tobacco products is prohibited, except:
  116         (a) When under the direct control or line of sight of the
  117  dealer or the dealer’s agent or employee; or
  118         (b) Sales from a vending machine are prohibited under the
  119  provisions of paragraph (1)(a) and are only permissible from a
  120  machine that is located in an establishment that prohibits
  121  persons under 21 years of age on the licensed premises at all
  122  times equipped with an operational lockout device which is under
  123  the control of the dealer or the dealer’s agent or employee who
  124  directly regulates the sale of items through the machine by
  125  triggering the lockout device to allow the dispensing of one
  126  tobacco product. The lockout device must include a mechanism to
  127  prevent the machine from functioning if the power source for the
  128  lockout device fails or if the lockout device is disabled, and a
  129  mechanism to ensure that only one tobacco product is dispensed
  130  at a time.
  131         (2)The provisions of subsection (1) shall not apply to an
  132  establishment that prohibits persons under 18 years of age on
  133  the licensed premises.
  134         Section 6. Section 569.101, Florida Statutes, is amended to
  135  read:
  136         569.101 Selling, delivering, bartering, furnishing, or
  137  giving tobacco products to persons under 21 18 years of age;
  138  criminal penalties; defense.—
  139         (1) It is unlawful to sell, deliver, barter, furnish, or
  140  give, directly or indirectly, to any person who is under 21 18
  141  years of age, any tobacco product.
  142         (2) Any person who violates subsection (1) commits a
  143  misdemeanor of the second degree, punishable as provided in s.
  144  775.082 or s. 775.083. However, any person who violates
  145  subsection (1) for a second or subsequent time within 1 year of
  146  the first violation, commits a misdemeanor of the first degree,
  147  punishable as provided in s. 775.082 or s. 775.083.
  148         (3) A person charged with a violation of subsection (1) has
  149  a complete defense if, at the time the tobacco product was sold,
  150  delivered, bartered, furnished, or given:
  151         (a) The buyer or recipient falsely evidenced that she or he
  152  was 21 18 years of age or older;
  153         (b) The appearance of the buyer or recipient was such that
  154  a prudent person would believe the buyer or recipient to be 21
  155  18 years of age or older; and
  156         (c) Such person carefully checked a driver license or an
  157  identification card issued by this state or another state of the
  158  United States, a passport, or a United States armed services
  159  identification card presented by the buyer or recipient and
  160  acted in good faith and in reliance upon the representation and
  161  appearance of the buyer or recipient in the belief that the
  162  buyer or recipient was 21 18 years of age or older.
  163         (4) A person must verify by means of identification
  164  specified in paragraph (3)(c) that a person purchasing a tobacco
  165  product is not under 21 years of age. Such verification is not
  166  required for any person over the age of 29.
  167         Section 7. Section 877.112, Florida Statutes, is repealed.
  168         Section 8. Paragraphs (a) and (b) of subsection (5) of
  169  section 210.095, Florida Statutes, are amended to read:
  170         210.095 Mail order, Internet, and remote sales of tobacco
  171  products; age verification.—
  172         (5) Each person who mails, ships, or otherwise delivers
  173  tobacco products in connection with an order for a delivery sale
  174  must:
  175         (a) Include as part of the shipping documents, in a clear
  176  and conspicuous manner, the following statement: “Tobacco
  177  Products: Florida law prohibits shipping to individuals under 21
  178  18 years of age and requires the payment of all applicable
  179  taxes.”
  180         (b) Use a method of mailing, shipping, or delivery which
  181  obligates the delivery service to require:
  182         1. The individual submitting the order for the delivery
  183  sale or another adult who resides at the individual’s address to
  184  sign his or her name to accept delivery of the shipping
  185  container. Proof of the legal minimum purchase age of the
  186  individual accepting delivery is required only if the individual
  187  appears to be under 30 27 years of age.
  188         2. Proof that the individual is either the addressee or the
  189  adult designated by the addressee, in the form of a valid,
  190  government-issued identification card bearing a photograph of
  191  the individual who signs to accept delivery of the shipping
  192  container.
  193  
  194  If the person accepting a purchase order for a delivery sale
  195  delivers the tobacco products without using a delivery service,
  196  the person must comply with all of the requirements of this
  197  section which apply to a delivery service. Any failure to comply
  198  with a requirement of this section constitutes a violation
  199  thereof.
  200         Section 9. Section 569.0075, Florida Statutes, is amended
  201  to read:
  202         569.0075 Gift of sample tobacco products prohibited.—The
  203  gift of sample tobacco products to any person under the age of
  204  21 18 by an entity licensed or permitted under the provisions of
  205  chapter 210 or this chapter, or by an employee of such entity,
  206  is prohibited and is punishable as provided in s. 569.101.
  207         Section 10. Subsection (1), paragraphs (b) and (c) of
  208  subsection (2), and subsection (3) of section 569.008, Florida
  209  Statutes, are amended to read:
  210         569.008 Responsible retail tobacco products dealers;
  211  qualifications; mitigation of disciplinary penalties; diligent
  212  management and supervision; presumption.—
  213         (1) The Legislature intends to prevent the sale of tobacco
  214  products to persons under 21 18 years of age and to encourage
  215  retail tobacco products dealers to comply with responsible
  216  practices in accordance with this section.
  217         (2) To qualify as a responsible retail tobacco products
  218  dealer, the dealer must establish and implement procedures
  219  designed to ensure that the dealer’s employees comply with the
  220  provisions of this chapter. The dealer must provide a training
  221  program for the dealer’s employees which addresses the use and
  222  sale of tobacco products and which includes at least the
  223  following topics:
  224         (b) Methods of recognizing and handling customers under 21
  225  18 years of age.
  226         (c) Procedures for proper examination of identification
  227  cards in order to verify that customers are not under 21 18
  228  years of age.
  229         (3) In determining penalties under s. 569.006, the division
  230  may mitigate penalties imposed against a dealer because of an
  231  employee’s illegal sale of a tobacco product to a person under
  232  21 18 years of age if the following conditions are met:
  233         (a) The dealer is qualified as a responsible dealer under
  234  this section.
  235         (b) The dealer provided the training program required under
  236  subsection (2) to that employee before the illegal sale
  237  occurred.
  238         (c) The dealer had no knowledge of that employee’s
  239  violation at the time of the violation and did not direct,
  240  approve, or participate in the violation.
  241         (d) If the sale was made through a vending machine, the
  242  machine was equipped with an operational lock-out device.
  243         Section 11. Section 569.11, Florida Statutes, is amended to
  244  read:
  245         569.11 Possession, misrepresenting age or military service
  246  to purchase, and purchase of tobacco products by persons under
  247  21 18 years of age prohibited; penalties; jurisdiction;
  248  disposition of fines.—
  249         (1) It is unlawful for any person under 21 18 years of age
  250  to knowingly possess any tobacco product. Any person under 21 18
  251  years of age who violates this subsection commits a noncriminal
  252  violation as provided in s. 775.08(3), punishable by:
  253         (a) For a first violation, 16 hours of community service
  254  or, instead of community service, a $25 fine. In addition, the
  255  person must attend a school-approved anti-tobacco program, if
  256  locally available; or
  257         (b) For a second or subsequent violation within 12 weeks
  258  after the first violation, a $25 fine.
  259  
  260  Any second or subsequent violation not within the 12-week period
  261  after the first violation is punishable as provided for a first
  262  violation.
  263         (2) It is unlawful for any person under 21 18 years of age
  264  to misrepresent his or her age or military service for the
  265  purpose of inducing a dealer or an agent or employee of the
  266  dealer to sell, give, barter, furnish, or deliver any tobacco
  267  product, or to purchase, or attempt to purchase, any tobacco
  268  product from a person or a vending machine. Any person under 21
  269  18 years of age who violates this subsection commits a
  270  noncriminal violation as provided in s. 775.08(3), punishable
  271  by:
  272         (a) For a first violation, 16 hours of community service
  273  or, instead of community service, a $25 fine and, in addition,
  274  the person must attend a school-approved anti-tobacco program,
  275  if available; or
  276         (b) For a second or subsequent violation within 12 weeks
  277  after the first violation, a $25 fine.
  278  
  279  Any second or subsequent violation not within the 12-week period
  280  after the first violation is punishable as provided for a first
  281  violation.
  282         (3) Any person under 21 18 years of age cited for
  283  committing a noncriminal violation under this section must sign
  284  and accept a civil citation indicating a promise to appear
  285  before the county court or comply with the requirement for
  286  paying the fine and must attend a school-approved anti-tobacco
  287  program, if locally available. If a fine is assessed for a
  288  violation of this section, the fine must be paid within 30 days
  289  after the date of the citation or, if a court appearance is
  290  mandatory, within 30 days after the date of the hearing.
  291         (4) A person charged with a noncriminal violation under
  292  this section must appear before the county court or comply with
  293  the requirement for paying the fine. The court, after a hearing,
  294  shall make a determination as to whether the noncriminal
  295  violation was committed. If the court finds the violation was
  296  committed, it shall impose an appropriate penalty as specified
  297  in subsection (1) or subsection (2). A person who participates
  298  in community service shall be considered an employee of the
  299  state for the purpose of chapter 440, for the duration of such
  300  service.
  301         (5)(a) If a person under 21 18 years of age is found by the
  302  court to have committed a noncriminal violation under this
  303  section and that person has failed to complete community
  304  service, pay the fine as required by paragraph (1)(a) or
  305  paragraph (2)(a), or attend a school-approved anti-tobacco
  306  program, if locally available, the court may direct the
  307  Department of Highway Safety and Motor Vehicles to withhold
  308  issuance of or suspend the driver license or driving privilege
  309  of that person for a period of 30 consecutive days.
  310         (b) If a person under 21 18 years of age is found by the
  311  court to have committed a noncriminal violation under this
  312  section and that person has failed to pay the applicable fine as
  313  required by paragraph (1)(b) or paragraph (2)(b), the court may
  314  direct the Department of Highway Safety and Motor Vehicles to
  315  withhold issuance of or suspend the driver license or driving
  316  privilege of that person for a period of 45 consecutive days.
  317         (6) Eighty percent of all civil penalties received by a
  318  county court pursuant to this section shall be remitted by the
  319  clerk of the court to the Department of Revenue for transfer to
  320  the Department of Education to provide for teacher training and
  321  for research and evaluation to reduce and prevent the use of
  322  tobacco products by children. The remaining 20 percent of civil
  323  penalties received by a county court pursuant to this section
  324  shall remain with the clerk of the county court to cover
  325  administrative costs.
  326         Section 12. Paragraph (b) of subsection (2) and subsection
  327  (3) of section 569.12, Florida Statutes, are amended to read:
  328         569.12 Jurisdiction; tobacco product enforcement officers
  329  or agents; enforcement.—
  330         (2)
  331         (b) A tobacco product enforcement officer is authorized to
  332  issue a citation to a person under the age of 21 18 when, based
  333  upon personal investigation, the officer has reasonable cause to
  334  believe that the person has committed a civil infraction in
  335  violation of s. 386.212 or s. 569.11.
  336         (3) A correctional probation officer as defined in s.
  337  943.10(3) is authorized to issue a citation to a person under
  338  the age of 21 18 when, based upon personal investigation, the
  339  officer has reasonable cause to believe that the person has
  340  committed a civil infraction in violation of s. 569.11.
  341         Section 13. Section 569.14, Florida Statutes, is amended to
  342  read:
  343         569.14 Posting of a sign stating that the sale of tobacco
  344  products to persons under 21 18 years of age is unlawful;
  345  enforcement; penalty.—
  346         (1) A dealer that sells tobacco products shall post a clear
  347  and conspicuous sign in each place of business where such
  348  products are sold which substantially states the following:
  349  
  350         THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
  351         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  352         REQUIRED FOR PURCHASE.
  353  
  354         (2) A dealer that sells tobacco products and nicotine
  355  products or nicotine dispensing devices, as defined in s.
  356  877.112, may use a sign that substantially states the following:
  357  
  358         THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
  359         NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
  360         OF 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED
  361         FOR PURCHASE.
  362  
  363  A dealer that uses a sign as described in this subsection meets
  364  the signage requirements of subsection (1) and s. 877.112.
  365         (3) The division shall make available to dealers of tobacco
  366  products signs that meet the requirements of subsection (1) or
  367  subsection (2).
  368         (3)(4) Any dealer that sells tobacco products shall provide
  369  at the checkout counter in a location clearly visible to the
  370  dealer or the dealer’s agent or employee instructional material
  371  in a calendar format or similar format to assist in determining
  372  whether a person is of legal age to purchase tobacco products.
  373  This point of sale material must contain substantially the
  374  following language:
  375  
  376                IF YOU WERE NOT BORN BEFORE THIS DATE              
  377                  (insert date and applicable year)                
  378                  YOU CANNOT BUY TOBACCO PRODUCTS.                 
  379  
  380  Upon approval by the division, in lieu of a calendar a dealer
  381  may use card readers, scanners, or other electronic or automated
  382  systems that can verify whether a person is of legal age to
  383  purchase tobacco products. Failure to comply with the provisions
  384  contained in this subsection shall result in imposition of
  385  administrative penalties as provided in s. 569.006.
  386         (4)(5) The division, through its agents and inspectors,
  387  shall enforce this section.
  388         (5)(6) Any person who fails to comply with subsection (1)
  389  is guilty of a misdemeanor of the second degree, punishable as
  390  provided in s. 775.082 or s. 775.083.
  391         Section 14. Subsections (3) and (4) of section 569.19,
  392  Florida Statutes, are amended to read:
  393         569.19 Annual report.—The division shall report annually
  394  with written findings to the Legislature and the Governor by
  395  December 31, on the progress of implementing the enforcement
  396  provisions of this chapter. This must include, but is not
  397  limited to:
  398         (3) The number of violations for selling tobacco products
  399  to persons under age 21 18, and the results of administrative
  400  hearings on the above and related issues.
  401         (4) The number of persons under age 21 18 cited for
  402  violations of s. 569.11 and sanctions imposed as a result of
  403  citation.
  404         Section 15. This act shall take effect October 1, 2020, if
  405  SB ___ or similar legislation is adopted in the same legislative
  406  session or an extension thereof and becomes a law.