Florida Senate - 2020                CS for CS for CS for SB 810
       
       
        
       By the Committees on Appropriations; Innovation, Industry, and
       Technology; and Health Policy; and Senators Simmons, Flores, and
       Mayfield
       
       
       
       576-03979-20                                           2020810c3
    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; revising civil penalties; amending s.
    8         569.002, F.S.; defining the term “liquid nicotine
    9         product”; revising the definition of the term “tobacco
   10         products”; deleting the term “any person under the age
   11         of 18”; amending s. 569.003, F.S.; revising the age
   12         limits for retail tobacco products dealer permits;
   13         amending s. 569.007, F.S.; revising prohibitions on
   14         the sale of tobacco products from vending machines;
   15         providing requirements for the delivery of vapor
   16         generating electronic devices and liquid nicotine
   17         products; conforming provisions to federal law;
   18         prohibiting a person from selling, delivering,
   19         bartering, furnishing, or giving flavored liquid
   20         nicotine products to any other person; defining the
   21         term “flavored liquid nicotine product”; providing
   22         applicability; amending s. 569.101, F.S.; requiring
   23         that the age of persons purchasing tobacco products be
   24         verified under certain circumstances; amending s.
   25         569.11, F.S.; revising civil penalties; conforming
   26         provisions to federal law; conforming provisions to
   27         changes made by the act; repealing s. 877.112, F.S.,
   28         relating to nicotine products and nicotine dispensing
   29         devices; amending s. 210.095, F.S.; conforming
   30         provisions to federal law; making technical changes;
   31         amending ss. 569.0075, 569.008, 569.12, 569.14, and
   32         569.19, F.S.; conforming provisions to federal law;
   33         conforming provisions to changes made by the act;
   34         providing a contingent effective date.
   35          
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Paragraph (b) of subsection (1) of section
   39  210.15, Florida Statutes, is amended to read:
   40         210.15 Permits.—
   41         (1)
   42         (b) Permits shall be issued only to persons of good moral
   43  character, who are not less than 21 18 years of age. Permits to
   44  corporations shall be issued only to corporations whose officers
   45  are of good moral character and not less than 21 18 years of
   46  age. There shall be no exemptions from the permit fees herein
   47  provided to any persons, association of persons, or corporation,
   48  any law to the contrary notwithstanding.
   49         Section 2. Subsections (1) and (3) of section 386.212,
   50  Florida Statutes, are amended to read:
   51         386.212 Smoking and vaping prohibited near school property;
   52  penalty.—
   53         (1) It is unlawful for any person under 21 18 years of age
   54  to smoke tobacco or vape in, on, or within 1,000 feet of the
   55  real property comprising a public or private elementary, middle,
   56  or secondary school between the hours of 6 a.m. and midnight.
   57  This section does not apply to any person occupying a moving
   58  vehicle or within a private residence.
   59         (3) Any person issued a citation pursuant to this section
   60  shall be deemed to be charged with a civil infraction punishable
   61  by a maximum civil penalty not to exceed $25, or 50 hours of
   62  community service and, for persons under 18 years of age or,
   63  where available, successful completion of a school-approved
   64  anti-tobacco or anti-vaping “alternative to suspension” program.
   65         Section 3. Present subsections (3) through (6) of section
   66  569.002, Florida Statutes, are redesignated as subsections (4)
   67  through (7), respectively, a new subsection (3) is added to that
   68  section, and present subsections (6) and (7) of section 569.002,
   69  Florida Statutes, are amended to read:
   70         569.002 Definitions.—As used in this chapter, the term:
   71         (3)“Liquid nicotine product” means a tobacco product in
   72  liquid form composed of nicotine and other chemicals or
   73  substances which is sold or offered for sale for use with a
   74  vapor-generating electronic device.
   75         (7)(6) “Tobacco products” includes:
   76         (a)Any product containing, made of, or derived from
   77  tobacco or nicotine that is intended for human consumption or is
   78  likely to be consumed, whether inhaled, absorbed, or ingested by
   79  any other means, including, but not limited to, a cigarette, a
   80  cigar, pipe tobacco, chewing tobacco, snuff, or snus; or
   81         (b)Any component, part, or accessory of a product
   82  described in paragraph (a), whether or not any of these contain
   83  tobacco or nicotine, including, but not limited to, filters,
   84  rolling papers, blunt or hemp wraps, and pipes.
   85  
   86  The term does not include drugs, devices, or combination
   87  products authorized for sale by the United States Food and Drug
   88  Administration, as those terms are defined in the Federal Food,
   89  Drug, and Cosmetic Act loose tobacco leaves, and products made
   90  from tobacco leaves, in whole or in part, and cigarette
   91  wrappers, which can be used for smoking, sniffing, or chewing.
   92         (7)“Any person under the age of 18” does not include any
   93  person under the age of 18 who:
   94         (a) Has had his or her disability of nonage removed under
   95  chapter 743;
   96         (b) Is in the military reserve or on active duty in the
   97  Armed Forces of the United States;
   98         (c) Is otherwise emancipated by a court of competent
   99  jurisdiction and released from parental care and responsibility;
  100  or
  101         (d) Is acting in his or her scope of lawful employment with
  102  an entity licensed under the provisions of chapter 210 or this
  103  chapter.
  104         Section 4. Paragraph (a) of subsection (2) of section
  105  569.003, Florida Statutes, is amended to read:
  106         569.003 Retail tobacco products dealer permits;
  107  application; qualifications; fees; renewal; duplicates.—
  108         (2)(a) Permits may be issued only to persons who are 21 18
  109  years of age or older or to corporations the officers of which
  110  are 21 18 years of age or older.
  111         Section 5. Subsections (1) and (2) of section 569.007,
  112  Florida Statutes, are amended, and a new subsection (5) is added
  113  to that section, to read:
  114         569.007 Sale or delivery of tobacco products;
  115  restrictions.—
  116         (1)(a) In order to prevent persons under 21 18 years of age
  117  from purchasing or receiving tobacco products, the sale or
  118  delivery of tobacco products is prohibited, except:
  119         1.(a) When under the direct control or line of sight of the
  120  dealer or the dealer’s agent or employee; or
  121         2.(b) Sales from a vending machine are prohibited under
  122  subparagraph 1. the provisions of paragraph (1)(a) and are only
  123  permissible from a machine that is located in an establishment
  124  that prohibits persons under 21 years of age on the licensed
  125  premises at all times.
  126         (b)Sales of vapor-generating electronic devices and liquid
  127  nicotine products, other than as authorized under subparagraph
  128  (a)1., are permissible only if a dealer implements an age
  129  verification procedure that:
  130         1.Before accepting an order for delivery, verifies that
  131  the purchaser is at least 21 years of age using a commercially
  132  available database, or an aggregate of databases, which is
  133  regularly used for the purpose of age and identity verification;
  134  and
  135         2.Employs a second-step age verification to secure
  136  delivery for every order by requiring the signature of the
  137  purchaser upon delivery and verifying that the credit card or
  138  debit card used for the purchase has been issued in the
  139  purchaser’s name and that the delivery address is associated
  140  with the purchaser’s credit card or debit card equipped with an
  141  operational lockout device which is under the control of the
  142  dealer or the dealer’s agent or employee who directly regulates
  143  the sale of items through the machine by triggering the lockout
  144  device to allow the dispensing of one tobacco product. The
  145  lockout device must include a mechanism to prevent the machine
  146  from functioning if the power source for the lockout device
  147  fails or if the lockout device is disabled, and a mechanism to
  148  ensure that only one tobacco product is dispensed at a time.
  149         (2)The provisions of subsection (1) shall not apply to an
  150  establishment that prohibits persons under 18 years of age on
  151  the licensed premises.
  152         (5)(a)A person may not sell, deliver, barter, furnish, or
  153  give, directly or indirectly, flavored liquid nicotine products
  154  to any other person. For the purposes of this subsection, the
  155  term “flavored liquid nicotine product” means a liquid nicotine
  156  product containing a natural or artificial constituent or
  157  additive that causes the liquid or its vapor to have a
  158  distinguishable taste or aroma other than tobacco or menthol,
  159  including, but not limited to, fruit, chocolate, vanilla, honey,
  160  candy, cocoa, a dessert, an alcoholic beverage, an herb or
  161  spice, or any combination thereof.
  162         (b)This subsection does not apply to the sale, shipment,
  163  or transport of any product that receives a marketing order
  164  issued by the United States Food and Drug Administration under
  165  21 U.S.C. s. 387j.
  166         Section 6. Section 569.101, Florida Statutes, is amended to
  167  read:
  168         569.101 Selling, delivering, bartering, furnishing, or
  169  giving tobacco products to persons under 21 18 years of age;
  170  criminal penalties; defense.—
  171         (1) It is unlawful to sell, deliver, barter, furnish, or
  172  give, directly or indirectly, to any person who is under 21 18
  173  years of age, any tobacco product.
  174         (2) Any person who violates subsection (1) commits a
  175  misdemeanor of the second degree, punishable as provided in s.
  176  775.082 or s. 775.083. However, any person who violates
  177  subsection (1) for a second or subsequent time within 1 year of
  178  the first violation, commits a misdemeanor of the first degree,
  179  punishable as provided in s. 775.082 or s. 775.083.
  180         (3) A person charged with a violation of subsection (1) has
  181  a complete defense if, at the time the tobacco product was sold,
  182  delivered, bartered, furnished, or given:
  183         (a) The buyer or recipient falsely evidenced that she or he
  184  was 21 18 years of age or older;
  185         (b) The appearance of the buyer or recipient was such that
  186  a prudent person would believe the buyer or recipient to be 21
  187  18 years of age or older; and
  188         (c) Such person carefully checked a driver license or an
  189  identification card issued by this state or another state of the
  190  United States, a passport, or a United States armed services
  191  identification card presented by the buyer or recipient and
  192  acted in good faith and in reliance upon the representation and
  193  appearance of the buyer or recipient in the belief that the
  194  buyer or recipient was 21 18 years of age or older.
  195         (4) A person must verify by means of identification
  196  specified in paragraph (3)(c) that a person purchasing a tobacco
  197  product is not under 21 years of age. Such verification is not
  198  required for any person over the age of 29.
  199         Section 7. Section 569.11, Florida Statutes, is amended to
  200  read:
  201         569.11 Possession, misrepresenting age or military service
  202  to purchase, and purchase of tobacco products by persons under
  203  21 18 years of age prohibited; penalties; jurisdiction;
  204  disposition of fines.—
  205         (1) It is unlawful for any person under 21 18 years of age
  206  to knowingly possess any tobacco product. Any person under 21 18
  207  years of age who violates this subsection commits a noncriminal
  208  violation as provided in s. 775.08(3), punishable by:
  209         (a) For a first violation, 16 hours of community service
  210  or, instead of community service, a $25 fine. In addition, if
  211  the person is under 18 years of age, the person must attend a
  212  school-approved anti-vaping or anti-tobacco program, if locally
  213  available; or
  214         (b) For a second or subsequent violation within 12 weeks
  215  after the first violation, a $25 fine.
  216  
  217  Any second or subsequent violation not within the 12-week period
  218  after the first violation is punishable as provided for a first
  219  violation.
  220         (2) It is unlawful for any person under 21 18 years of age
  221  to misrepresent his or her age or military service for the
  222  purpose of inducing a dealer or an agent or employee of the
  223  dealer to sell, give, barter, furnish, or deliver any tobacco
  224  product, or to purchase, or attempt to purchase, any tobacco
  225  product from a person or a vending machine. Any person under 21
  226  18 years of age who violates this subsection commits a
  227  noncriminal violation as provided in s. 775.08(3), punishable
  228  by:
  229         (a) For a first violation, 16 hours of community service
  230  or, instead of community service, a $25 fine and, in addition,
  231  if the person is under 18 years of age, the person must attend a
  232  school-approved anti-vaping or anti-tobacco program, if
  233  available; or
  234         (b) For a second or subsequent violation within 12 weeks
  235  after the first violation, a $25 fine.
  236  
  237  Any second or subsequent violation not within the 12-week period
  238  after the first violation is punishable as provided for a first
  239  violation.
  240         (3) Any person under 21 18 years of age cited for
  241  committing a noncriminal violation under this section must sign
  242  and accept a civil citation indicating a promise to appear
  243  before the county court or comply with the requirement for
  244  paying the fine and, if the person is under 18 years of age,
  245  must attend a school-approved anti-vaping or anti-tobacco
  246  program, if locally available. If a fine is assessed for a
  247  violation of this section, the fine must be paid within 30 days
  248  after the date of the citation or, if a court appearance is
  249  mandatory, within 30 days after the date of the hearing.
  250         (4) A person charged with a noncriminal violation under
  251  this section must appear before the county court or comply with
  252  the requirement for paying the fine. The court, after a hearing,
  253  shall make a determination as to whether the noncriminal
  254  violation was committed. If the court finds the violation was
  255  committed, it shall impose an appropriate penalty as specified
  256  in subsection (1) or subsection (2). A person who participates
  257  in community service shall be considered an employee of the
  258  state for the purpose of chapter 440, for the duration of such
  259  service.
  260         (5)(a) If a person under 21 18 years of age is found by the
  261  court to have committed a noncriminal violation under this
  262  section and that person has failed to complete community
  263  service, pay the fine as required by paragraph (1)(a) or
  264  paragraph (2)(a), or, if the person is under 18 years of age,
  265  attend a school-approved anti-vaping or anti-tobacco program, if
  266  locally available, the court may direct the Department of
  267  Highway Safety and Motor Vehicles to withhold issuance of or
  268  suspend the driver license or driving privilege of that person
  269  for a period of 30 consecutive days.
  270         (b) If a person under 21 18 years of age is found by the
  271  court to have committed a noncriminal violation under this
  272  section and that person has failed to pay the applicable fine as
  273  required by paragraph (1)(b) or paragraph (2)(b), the court may
  274  direct the Department of Highway Safety and Motor Vehicles to
  275  withhold issuance of or suspend the driver license or driving
  276  privilege of that person for a period of 45 consecutive days.
  277         (6) Eighty percent of all civil penalties received by a
  278  county court pursuant to this section shall be remitted by the
  279  clerk of the court to the Department of Revenue for transfer to
  280  the Department of Education to provide for teacher training and
  281  for research and evaluation to reduce and prevent the use of
  282  tobacco products by children. The remaining 20 percent of civil
  283  penalties received by a county court pursuant to this section
  284  shall remain with the clerk of the county court to cover
  285  administrative costs.
  286         Section 8. Section 877.112, Florida Statutes, is repealed.
  287         Section 9. Paragraphs (a) and (b) of subsection (5) and
  288  paragraphs (e) and (g) of subsection (8) of section 210.095,
  289  Florida Statutes, are amended to read:
  290         210.095 Mail order, Internet, and remote sales of tobacco
  291  products; age verification.—
  292         (5) Each person who mails, ships, or otherwise delivers
  293  tobacco products in connection with an order for a delivery sale
  294  must:
  295         (a) Include as part of the shipping documents, in a clear
  296  and conspicuous manner, the following statement: “Tobacco
  297  Products: Florida law prohibits shipping to individuals under 21
  298  18 years of age and requires the payment of all applicable
  299  taxes.”
  300         (b) Use a method of mailing, shipping, or delivery which
  301  obligates the delivery service to require:
  302         1. The individual submitting the order for the delivery
  303  sale or another adult who resides at the individual’s address to
  304  sign his or her name to accept delivery of the shipping
  305  container. Proof of the legal minimum purchase age of the
  306  individual accepting delivery is required only if the individual
  307  appears to be under 30 27 years of age.
  308         2. Proof that the individual is either the addressee or the
  309  adult designated by the addressee, in the form of a valid,
  310  government-issued identification card bearing a photograph of
  311  the individual who signs to accept delivery of the shipping
  312  container.
  313  
  314  If the person accepting a purchase order for a delivery sale
  315  delivers the tobacco products without using a delivery service,
  316  the person must comply with all of the requirements of this
  317  section which apply to a delivery service. Any failure to comply
  318  with a requirement of this section constitutes a violation
  319  thereof.
  320         (8)
  321         (e) A person who, in connection with a delivery sale,
  322  delivers tobacco products on behalf of a delivery service to an
  323  individual who is not an adult commits a misdemeanor of the
  324  second third degree, punishable as provided in s. 775.082 or s.
  325  775.083.
  326         (g) An individual who is not an adult and who knowingly
  327  violates any provision of this section commits a misdemeanor of
  328  the second third degree, punishable as provided in s. 775.082 or
  329  s. 775.083.
  330         Section 10. Section 569.0075, Florida Statutes, is amended
  331  to read:
  332         569.0075 Gift of sample tobacco products prohibited.—The
  333  gift of sample tobacco products to any person under the age of
  334  21 18 by an entity licensed or permitted under the provisions of
  335  chapter 210 or this chapter, or by an employee of such entity,
  336  is prohibited and is punishable as provided in s. 569.101.
  337         Section 11. Subsection (1), paragraphs (b) and (c) of
  338  subsection (2), and subsection (3) of section 569.008, Florida
  339  Statutes, are amended to read:
  340         569.008 Responsible retail tobacco products dealers;
  341  qualifications; mitigation of disciplinary penalties; diligent
  342  management and supervision; presumption.—
  343         (1) The Legislature intends to prevent the sale of tobacco
  344  products to persons under 21 18 years of age and to encourage
  345  retail tobacco products dealers to comply with responsible
  346  practices in accordance with this section.
  347         (2) To qualify as a responsible retail tobacco products
  348  dealer, the dealer must establish and implement procedures
  349  designed to ensure that the dealer’s employees comply with the
  350  provisions of this chapter. The dealer must provide a training
  351  program for the dealer’s employees which addresses the use and
  352  sale of tobacco products and which includes at least the
  353  following topics:
  354         (b) Methods of recognizing and handling customers under 21
  355  18 years of age.
  356         (c) Procedures for proper examination of identification
  357  cards in order to verify that customers are not under 21 18
  358  years of age.
  359         (3) In determining penalties under s. 569.006, the division
  360  may mitigate penalties imposed against a dealer because of an
  361  employee’s illegal sale of a tobacco product to a person under
  362  21 18 years of age if the following conditions are met:
  363         (a) The dealer is qualified as a responsible dealer under
  364  this section.
  365         (b) The dealer provided the training program required under
  366  subsection (2) to that employee before the illegal sale
  367  occurred.
  368         (c) The dealer had no knowledge of that employee’s
  369  violation at the time of the violation and did not direct,
  370  approve, or participate in the violation.
  371         (d) If the sale was made through a vending machine, the
  372  machine was equipped with an operational lock-out device.
  373         Section 12. Paragraph (b) of subsection (2), subsection
  374  (3), and paragraph (g) of subsection (4) of section 569.12,
  375  Florida Statutes, are amended to read:
  376         569.12 Jurisdiction; tobacco product enforcement officers
  377  or agents; enforcement.—
  378         (2)
  379         (b) A tobacco product enforcement officer is authorized to
  380  issue a citation to a person under the age of 21 18 when, based
  381  upon personal investigation, the officer has reasonable cause to
  382  believe that the person has committed a civil infraction in
  383  violation of s. 386.212 or s. 569.11.
  384         (3) A correctional probation officer as defined in s.
  385  943.10(3) is authorized to issue a citation to a person under
  386  the age of 21 18 when, based upon personal investigation, the
  387  officer has reasonable cause to believe that the person has
  388  committed a civil infraction in violation of s. 569.11.
  389         (4) A citation issued to any person violating the
  390  provisions of s. 569.11 shall be in a form prescribed by the
  391  Division of Alcoholic Beverages and Tobacco of the Department of
  392  Business and Professional Regulation and shall contain:
  393         (g) The procedure for the person to follow in order to
  394  contest the citation, perform the required community service,
  395  attend the required anti-vaping or anti-tobacco program, or to
  396  pay the civil penalty.
  397         Section 13. Section 569.14, Florida Statutes, is amended to
  398  read:
  399         569.14 Posting of a sign stating that the sale of tobacco
  400  products to persons under 21 18 years of age is unlawful;
  401  enforcement; penalty.—
  402         (1) A dealer that sells tobacco products shall post a clear
  403  and conspicuous sign in each place of business where such
  404  products are sold which substantially states the following:
  405  
  406         THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
  407         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  408         REQUIRED FOR PURCHASE.
  409  
  410         (2) A dealer that sells tobacco products and nicotine
  411  products or nicotine dispensing devices, as defined in s.
  412  877.112, may use a sign that substantially states the following:
  413  
  414         THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
  415         NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
  416         OF 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED
  417         FOR PURCHASE.
  418  
  419  A dealer that uses a sign as described in this subsection meets
  420  the signage requirements of subsection (1) and s. 877.112.
  421         (3) The division shall make available to dealers of tobacco
  422  products signs that meet the requirements of subsection (1) or
  423  subsection (2).
  424         (3)(4) Any dealer that sells tobacco products shall provide
  425  at the checkout counter in a location clearly visible to the
  426  dealer or the dealer’s agent or employee instructional material
  427  in a calendar format or similar format to assist in determining
  428  whether a person is of legal age to purchase tobacco products.
  429  This point of sale material must contain substantially the
  430  following language:
  431  
  432                IF YOU WERE NOT BORN BEFORE THIS DATE              
  433                  (insert date and applicable year)                
  434                  YOU CANNOT BUY TOBACCO PRODUCTS.                 
  435  
  436  Upon approval by the division, in lieu of a calendar a dealer
  437  may use card readers, scanners, or other electronic or automated
  438  systems that can verify whether a person is of legal age to
  439  purchase tobacco products. Failure to comply with the provisions
  440  contained in this subsection shall result in imposition of
  441  administrative penalties as provided in s. 569.006.
  442         (4)(5) The division, through its agents and inspectors,
  443  shall enforce this section.
  444         (5)(6) Any person who fails to comply with subsection (1)
  445  is guilty of a misdemeanor of the second degree, punishable as
  446  provided in s. 775.082 or s. 775.083.
  447         Section 14. Subsections (3) and (4) of section 569.19,
  448  Florida Statutes, are amended to read:
  449         569.19 Annual report.—The division shall report annually
  450  with written findings to the Legislature and the Governor by
  451  December 31, on the progress of implementing the enforcement
  452  provisions of this chapter. This must include, but is not
  453  limited to:
  454         (3) The number of violations for selling tobacco products
  455  to persons under age 21 18, and the results of administrative
  456  hearings on the above and related issues.
  457         (4) The number of persons under age 21 18 cited for
  458  violations of s. 569.11 and sanctions imposed as a result of
  459  citation.
  460         Section 15. This act shall take effect October 1, 2020, if
  461  SB 1394 or similar legislation is adopted in the same
  462  legislative session or an extension thereof and becomes a law.