Florida Senate - 2009                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 1840
       
       
       
       
       
       
                                Barcode 332194                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 4/AD/2R         .                                
             04/16/2009 02:51 PM       .                                
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       Senator Deutch moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 219 and 220
    4  insert:
    5         Section 5. Section 210.095, Florida Statutes, is created to
    6  read:
    7         210.095Mail order, Internet, and remote sales of tobacco
    8  products; age verification.—
    9         (1)For purposes of this section, the term:
   10         (a)“Adult” means an individual who is at least the legal
   11  minimum purchase age for tobacco products.
   12         (b)“Consumer” means a person in this state who comes into
   13  possession of any tobacco product subject to the tax imposed by
   14  this chapter and who, at the time of possession, is not a
   15  distributor intending to sell or distribute the tobacco product,
   16  a retailer, or a wholesaler.
   17         (c)“Delivery sale” means any sale of tobacco products to a
   18  consumer in this state for which:
   19         1.The consumer submits the order for the sale by means of
   20  telephonic or other voice transmission, mail, a delivery
   21  service, or the Internet or other online service; or
   22         2.The tobacco products are delivered by use of mail or a
   23  delivery service.
   24         (d)“Delivery service” means any person engaged in the
   25  commercial delivery of letters, packages, or other containers.
   26         (e)“Legal minimum purchase age” means the minimum age at
   27  which an individual may legally purchase tobacco products in
   28  this state.
   29         (f)“Mail” or “mailing” means the shipment of tobacco
   30  products through the United States Postal Service.
   31         (g)“Retailer” means any person who is not a licensed
   32  distributor in possession of tobacco products subject to tax
   33  under this chapter for the purposes of selling the tobacco
   34  products to consumers.
   35         (h)“Shipping container” means a container in which tobacco
   36  products are shipped in connection with a delivery sale.
   37         (i)“Shipping document” means a bill of lading, airbill,
   38  United States Postal Service form, or any other document used to
   39  verify the undertaking by a delivery service to deliver letters,
   40  packages, or other containers.
   41         (j)“Tobacco products” means all cigarettes, smoking
   42  tobacco, snuff, fine-cut chewing tobacco, cut and granulated
   43  tobacco, cavendish, plug or twist tobacco, and cigars.
   44         (2)(a)A sale of tobacco products constituting a delivery
   45  sale pursuant to paragraph (1)(c) is a delivery sale regardless
   46  of whether the person accepting the order for the delivery sale
   47  is located inside or outside this state.
   48         (b)A cigarette retailer must obtain a license from the
   49  department pursuant to the requirements of this chapter before
   50  accepting an order for a delivery sale.
   51         (c)A person may not make a delivery sale of tobacco
   52  products to any individual who is not an adult.
   53         (d)Each person accepting an order for a delivery sale
   54  shall comply with each of the following:
   55         1.The age verification requirements set forth in
   56  subsection (3).
   57         2.The disclosure requirements set forth in subsection (4).
   58         3.The shipping requirements set forth in subsection (5).
   59         4.The registration and reporting requirements set forth in
   60  subsection (6).
   61         5.The tax collection requirements set forth in subsection
   62  (7).
   63         6.The licensing and tax stamp requirements set forth in
   64  this chapter that apply to sales of tobacco products occurring
   65  entirely in this state.
   66         7.All laws of this state generally applicable to sales of
   67  tobacco products occurring entirely in this state which impose
   68  excise taxes and assessments.
   69         (3)A person may not mail, ship, or otherwise deliver
   70  tobacco products in connection with an order for a delivery sale
   71  unless, before the first delivery to the consumer, the person
   72  accepting the order for the delivery sale:
   73         (a)Obtains from the individual submitting the order a
   74  certification that includes:
   75         1.Reliable confirmation that the individual is an adult;
   76  and
   77         2.A statement signed by the individual in writing and
   78  under penalty of perjury that:
   79         a.Certifies the address and date of birth of the
   80  individual; and
   81         b.Confirms that the individual wants to receive delivery
   82  sales from a tobacco company and understands that, under the
   83  laws of this state, the following actions are illegal:
   84         (I)Signing another individual’s name to the certification;
   85         (II)Selling tobacco products to individuals under the
   86  legal minimum purchase age; and
   87         (III)Purchasing tobacco products, if the person making the
   88  purchase is under the legal minimum purchase age.
   89         (b)Makes a good faith effort to verify the information
   90  contained in the certification provided by the individual
   91  pursuant to paragraph (a) against a commercially available
   92  database that may be reasonably relied upon for accurate age
   93  information or obtains a photocopy or other image of a valid
   94  government-issued identification card stating the date of birth
   95  or age of the individual.
   96         (c)Provides to the individual, via electronic mail or
   97  other means, a notice meeting the requirements of subsection
   98  (4).
   99         (d)If an order for tobacco products is made pursuant to an
  100  advertisement on the Internet, receives payment for the delivery
  101  sale from the consumer by a credit or debit card issued in the
  102  name of the consumer, or by personal or company check of the
  103  consumer.
  104         (e)Imposes a two-carton minimum on each order of
  105  cigarettes, and requires payment for the purchase of any tobacco
  106  product to be made by personal check of the purchaser or the
  107  purchaser’s credit card. Payment by money order or cash may not
  108  be received or permitted. The person accepting the order for
  109  delivery sale shall submit to each credit card acquiring company
  110  with which it has credit card sales identification information
  111  in an appropriate form and format so that the words “tobacco
  112  product” may be printed in the purchaser’s credit card statement
  113  when a purchase of a tobacco product is made by credit card
  114  payment.
  115         (f)Makes a telephone call after 5 p.m. to the purchaser
  116  confirming the order before shipping the tobacco products. The
  117  telephone call may be a person-to-person call or a recorded
  118  message. The person accepting the order for delivery sale is not
  119  required to speak directly with a person and may leave a message
  120  on an answering machine or by voice mail system.
  121  
  122  In addition to the requirements of this subsection, a person
  123  accepting an order for a delivery sale may request that a
  124  consumer provide an electronic mail address.
  125         (4)The notice described in paragraph (3)(c) shall include
  126  prominent and clearly legible statements that sales of tobacco
  127  products are:
  128         (a)Illegal if made to individuals who are not adults.
  129         (b)Restricted to those individuals who provide verifiable
  130  proof of age in accordance with subsection (3).
  131         (c)Taxable under this chapter.
  132  
  133  The notice shall include an explanation of how each tax has
  134  been, or is to be, paid with respect to the delivery sale.
  135         (5)Each person who mails, ships, or otherwise delivers
  136  tobacco products in connection with an order for a delivery sale
  137  shall:
  138         (a)Include as part of the shipping documents, in a clear
  139  and conspicuous manner, the following statement: “Tobacco
  140  Products: Florida law prohibits shipping to individuals under 18
  141  years of age and requires the payment of all applicable taxes.”
  142         (b)Use a method of mailing, shipping, or delivery that
  143  obligates the delivery service to require:
  144         1.The individual submitting the order for the delivery
  145  sale or another adult who resides at the individual’s address to
  146  sign his or her name to accept delivery of the shipping
  147  container. Proof of the legal minimum purchase age of the
  148  individual accepting delivery is required only if the individual
  149  appears to be under 27 years of age.
  150         2.Proof that the individual is either the addressee or the
  151  adult designated by the addressee, in the form of a valid,
  152  government-issued identification card bearing a photograph of
  153  the individual who signs to accept delivery of the shipping
  154  container.
  155         (c)Provide to the delivery service retained to deliver the
  156  delivery sale evidence of full compliance with subsection (7).
  157  
  158  If the person accepting a purchase order for a delivery sale
  159  delivers the tobacco products without using a delivery service,
  160  the person must comply with all of the requirements of this
  161  section which apply to a delivery service ,and any failure to
  162  comply with a requirement of this section constitutes a
  163  violation thereof.
  164         (6)(a)Before making sales or shipping tobacco products in
  165  connection with sales, a person shall file with the department a
  166  statement stating the person’s name, trade name, and the address
  167  of the person’s principal place of business, as well as any
  168  other place of business.
  169         (b)No later than the 10th day of each month, each person
  170  who has made a sale or mailed, shipped, or otherwise delivered
  171  tobacco products in connection with any sale during the previous
  172  calendar month shall file with the department a memorandum or a
  173  copy of the invoice, providing for each sale:
  174         1.The name and address of the individual who submitted the
  175  order for the sale.
  176         2.The name and address of the individual who accepted
  177  delivery of the tobacco products.
  178         3.The name and address of the person accepting the order
  179  for the sale of tobacco products.
  180         4. The name and address of the delivery service and the
  181  name of the individual making the delivery.
  182         5.The brand or brands of the tobacco products sold in the
  183  sale.
  184         6.The quantity of each brand of tobacco products sold in
  185  the sale.
  186         (c)A person may comply with the requirements of this
  187  subsection by complying with the requirements of 15 U.S.C. 376.
  188         (d)This section does not apply to sales of tobacco
  189  products by a licensed distributor or to sales of tobacco
  190  products by a retailer purchased from a licensed distributor.
  191         (7)Each person accepting a purchase order for a delivery
  192  sale shall collect and remit to the department all taxes imposed
  193  on tobacco products by this state with respect to the delivery
  194  sale. With respect to cigarettes, the collection and remission
  195  are not required if the person has obtained proof in the form of
  196  the presence of applicable tax stamps or tax exempt stamps, or
  197  other proof that the taxes have already been paid to this state.
  198         (8)(a)Except as otherwise provided in this section, a
  199  violation of this section by a person other than an individual
  200  who is not an adult is a misdemeanor of the first degree,
  201  punishable as provided in s. 775.082 or s. 775.083, and:
  202         1.For a first violation of this section, the person shall
  203  be fined $1,000 or five times the retail value of the tobacco
  204  products involved in the violation, whichever is greater.
  205         2.For a second or subsequent violation of this section,
  206  the person shall be fined $5,000 or five times the retail value
  207  of the tobacco products involved in the violation, whichever is
  208  greater.
  209         (b)A person who is an adult and who knowingly submits a
  210  false certification under subsection (3) commits a misdemeanor
  211  of the first degree, punishable as provided in s. 775.082 or s.
  212  775.083. For each offense, the person shall be fined $10,000 or
  213  five times the retail value of the tobacco products involved in
  214  the violation, whichever is greater.
  215         (c)A person who fails to pay any tax required in
  216  connection with a delivery sale shall pay, in addition to any
  217  other penalty, a penalty of five times the retail value of the
  218  tobacco products involved.
  219         (d)Any tobacco products sold or attempted to be sold in a
  220  delivery sale not meeting the requirements of this section shall
  221  be forfeited to the state pursuant to s. 210.185.
  222         (e)A person who, in connection with a delivery sale,
  223  delivers tobacco products on behalf of a delivery service to an
  224  individual who is not an adult commits a misdemeanor of the
  225  third degree, punishable as provided in s. 775.082 or s.
  226  775.083.
  227         (f)Any fixture, equipment, or other material or personal
  228  property on the premises of any person who, with the intent to
  229  defraud this state, mails or ships tobacco products into this
  230  state and fails to satisfy any of the requirements of this
  231  section is a contraband article within the definition of s.
  232  932.701(2)(a)3.
  233         (g)An individual who is not an adult and who knowingly
  234  violates any provision of this section commits a misdemeanor of
  235  the third degree, punishable as provided in s. 775.082 or s.
  236  775.083.
  237         (9)The Attorney General, the Attorney General’s designee,
  238  a state attorney, or any person who holds a permit under 26
  239  U.S.C. 5713 may bring an action in the appropriate court in this
  240  state to prevent or restrain violations of this section by any
  241  person.
  242  
  243  ================= T I T L E  A M E N D M E N T ================
  244         And the title is amended as follows:
  245         Delete line 18
  246  and insert:
  247         conform; creating s. 210.095, F.S.; providing
  248         definitions; providing that certain transactions
  249         constitute a delivery sale of tobacco products;
  250         requiring that a cigarette retailer obtain a license
  251         before accepting an order for a delivery sale;
  252         prohibiting the making of a delivery sale to a person
  253         who is not an adult; requiring that a person accepting
  254         an order for a delivery sale comply with certain
  255         requirements; prohibiting the mailing, shipping, or
  256         delivery of tobacco products in connection with an
  257         order for delivery sale unless, before the first
  258         delivery to a consumer, the person accepting such
  259         order takes certain actions; authorizing a person
  260         accepting an order for delivery sale to request that a
  261         consumer provide an e-mail address; requiring the
  262         delivery of a notice to consumers making orders for
  263         delivery sale; providing requirements for such notice;
  264         requiring that each person who mails, ships, or
  265         delivers tobacco products in connection with an order
  266         for delivery sale fulfill specified requirements;
  267         requiring that a person file a statement containing
  268         certain information with the Department of Business
  269         and Professional Regulation before selling or shipping
  270         tobacco products; requiring that certain individuals
  271         file certain information with the department at
  272         specified intervals; providing that a person may
  273         comply with certain provisions of state law by
  274         complying with certain provisions of federal law;
  275         providing for applicability of certain provisions of
  276         state law; requiring the collection and remittance of
  277         certain taxes; providing penalties for certain
  278         violations of state law; classifying certain property
  279         as contraband material; requiring the forfeiture of
  280         tobacco products under certain circumstances;
  281         authorizing the Attorney General, his or her designee,
  282         a state attorney, or any person holding a specified
  283         type of permit to bring certain actions in a court of
  284         this state; amending s. 210.18, F.S.; providing
  285         enhanced