Florida Senate - 2018 SB 1288
By Senator Simmons
9-01280-18 20181288__
1 A bill to be entitled
2 An act relating to tobacco products; providing a short
3 title; amending s. 210.095, F.S.; revising shipping
4 documentation requirements for specified sales of
5 tobacco products; providing criminal and noncriminal
6 penalties; amending s. 322.056, F.S.; deleting
7 provisions requiring driver license penalties for
8 certain persons who commit tobacco-related offenses;
9 amending s. 386.212, F.S.; revising the age limit for
10 smoking near school property; amending s. 569.002,
11 F.S.; defining the term “electronic smoking device”;
12 redefining the term “tobacco products”; deleting the
13 term “any person under the age of 18”; amending s.
14 569.007, F.S.; prohibiting the sale of tobacco
15 products except under certain circumstances; providing
16 an exception for certain establishments; amending s.
17 569.0075, F.S.; prohibiting certain entities from
18 gifting sample tobacco products to persons under 21
19 years of age; amending s. 569.008, F.S.; providing
20 legislative intent; deleting a provision relating to
21 the mitigation of penalties imposed against a dealer
22 for certain violations; amending s. 569.101, F.S.;
23 providing that it is unlawful to sell, deliver,
24 barter, furnish, or give tobacco products to persons
25 under 21 years of age; revising penalties for
26 violations; revising the requirements for a complete
27 defense for persons charged with certain violations;
28 amending s. 569.11, F.S.; deleting provisions relating
29 to persons under 18 years of age possessing tobacco
30 products; providing that it is unlawful for persons
31 under 21 years of age to misrepresent their age to
32 acquire tobacco products; revising the penalties for
33 certain persons who misrepresent their age; deleting a
34 provision requiring a person participating in
35 community service to be considered an employee of the
36 state for certain purposes; conforming a provision to
37 changes made by the act; amending ss. 569.12, 569.14,
38 and 569.19, F.S.; conforming provisions to changes
39 made by the act; repealing s. 877.112, F.S., relating
40 to restrictions on the sale and delivery of nicotine
41 products and nicotine dispensing devices; providing an
42 effective date.
43
44 Be It Enacted by the Legislature of the State of Florida:
45
46 Section 1. This act may be cited as the “Tobacco 21 Act.”
47 Section 2. Subsection (5) and paragraphs (e) and (g) of
48 subsection (8) of section 210.095, Florida Statutes, are amended
49 to read:
50 210.095 Mail order, Internet, and remote sales of tobacco
51 products; age verification.—
52 (5) Each person who mails, ships, or otherwise delivers
53 tobacco products in connection with an order for a delivery sale
54 must:
55 (a) Include as part of the shipping documents, in a clear
56 and conspicuous manner, the following statement: “Tobacco
57 Products: Florida law prohibits shipping to individuals under 21
58 18 years of age and requires the payment of all applicable
59 taxes.”
60 (b) Use a method of mailing, shipping, or delivery which
61 obligates the delivery service to require:
62 1. The individual submitting the order for the delivery
63 sale or another adult who resides at the individual’s address to
64 sign his or her name to accept delivery of the shipping
65 container. Proof of the legal minimum purchase age of the
66 individual accepting delivery is required only if the individual
67 appears to be under 27 years of age.
68 2. Proof that the individual is either the addressee or the
69 adult designated by the addressee, in the form of a valid,
70 government-issued identification card bearing a photograph of
71 the individual who signs to accept delivery of the shipping
72 container.
73 (c) Provide to the delivery service, if such service is
74 used, evidence of full compliance with subsection (7).
75
76 Any person who violates paragraph (a) commits a noncriminal
77 violation and must serve at least 20 hours of community service.
78 Any person who violates paragraph (a) a second or subsequent
79 time within 1 year of the first violation commits a noncriminal
80 violation and must serve at least 40 hours of community service
81 If the person accepting a purchase order for a delivery sale
82 delivers the tobacco products without using a delivery service,
83 the person must comply with all of the requirements of this
84 section which apply to a delivery service. Any failure to comply
85 with a requirement of this section constitutes a violation
86 thereof.
87 (8)
88 (e) A person who, in connection with a delivery sale,
89 delivers tobacco products on behalf of a delivery service to an
90 individual who is not an adult commits a misdemeanor of the
91 second degree of the third degree, punishable as provided in s.
92 775.082 or s. 775.083.
93 (g) An individual who is not an adult and who knowingly
94 violates any provision of this section commits a misdemeanor of
95 the third degree, punishable as provided in s. 775.082 or s.
96 775.083.
97 Section 3. Section 322.056, Florida Statutes, is amended to
98 read:
99 322.056 Mandatory revocation or suspension of, or delay of
100 eligibility for, driver license for persons under age 18 found
101 guilty of certain alcohol or, drug, or tobacco offenses;
102 prohibition.—
103 (1) Notwithstanding the provisions of s. 322.055, if a
104 person under 18 years of age is found guilty of or delinquent
105 for a violation of s. 562.11(2), s. 562.111, or chapter 893,
106 and:
107 (a) The person is eligible by reason of age for a driver
108 license or driving privilege, the court shall direct the
109 department to revoke or to withhold issuance of his or her
110 driver license or driving privilege for a period of:
111 1. Not less than 6 months and not more than 1 year for the
112 first violation.
113 2. Two years, for a subsequent violation.
114 (b) The person’s driver license or driving privilege is
115 under suspension or revocation for any reason, the court shall
116 direct the department to extend the period of suspension or
117 revocation by an additional period of:
118 1. Not less than 6 months and not more than 1 year for the
119 first violation.
120 2. Two years, for a subsequent violation.
121 (c) The person is ineligible by reason of age for a driver
122 license or driving privilege, the court shall direct the
123 department to withhold issuance of his or her driver license or
124 driving privilege for a period of:
125 1. Not less than 6 months and not more than 1 year after
126 the date on which he or she would otherwise have become
127 eligible, for the first violation.
128 2. Two years after the date on which he or she would
129 otherwise have become eligible, for a subsequent violation.
130
131 However, the court may, in its sound discretion, direct the
132 department to issue a license for driving privileges restricted
133 to business or employment purposes only, as defined in s.
134 322.271, if the person is otherwise qualified for such a
135 license.
136 (2) If a person under 18 years of age is found by the court
137 to have committed a noncriminal violation under s. 569.11 or s.
138 877.112(6) or (7) and that person has failed to comply with the
139 procedures established in that section by failing to fulfill
140 community service requirements, failing to pay the applicable
141 fine, or failing to attend a locally available school-approved
142 anti-tobacco program, and:
143 (a) The person is eligible by reason of age for a driver
144 license or driving privilege, the court shall direct the
145 department to revoke or to withhold issuance of his or her
146 driver license or driving privilege as follows:
147 1. For the first violation, for 30 days.
148 2. For the second violation within 12 weeks of the first
149 violation, for 45 days.
150 (b) The person’s driver license or driving privilege is
151 under suspension or revocation for any reason, the court shall
152 direct the department to extend the period of suspension or
153 revocation by an additional period as follows:
154 1. For the first violation, for 30 days.
155 2. For the second violation within 12 weeks of the first
156 violation, for 45 days.
157 (c) The person is ineligible by reason of age for a driver
158 license or driving privilege, the court shall direct the
159 department to withhold issuance of his or her driver license or
160 driving privilege as follows:
161 1. For the first violation, for 30 days.
162 2. For the second violation within 12 weeks of the first
163 violation, for 45 days.
164
165 Any second violation of s. 569.11 or s. 877.112(6) or (7) not
166 within the 12-week period after the first violation will be
167 treated as a first violation and in the same manner as provided
168 in this subsection.
169 (3) If a person under 18 years of age is found by the court
170 to have committed a third violation of s. 569.11 or s.
171 877.112(6) or (7) within 12 weeks of the first violation, the
172 court must direct the Department of Highway Safety and Motor
173 Vehicles to suspend or withhold issuance of his or her driver
174 license or driving privilege for 60 consecutive days. Any third
175 violation of s. 569.11 or s. 877.112(6) or (7) not within the
176 12-week period after the first violation will be treated as a
177 first violation and in the same manner as provided in subsection
178 (2).
179 (2)(4) A penalty imposed under this section shall be in
180 addition to any other penalty imposed by law.
181 (5) The suspension or revocation of a person’s driver
182 license imposed pursuant to subsection (2) or subsection (3),
183 shall not result in or be cause for an increase of the convicted
184 person’s, or his or her parent’s or legal guardian’s, automobile
185 insurance rate or premium or result in points assessed against
186 the person’s driving record.
187 Section 4. Subsection (1) of section 386.212, Florida
188 Statutes, is amended to read:
189 386.212 Smoking prohibited near school property; penalty.—
190 (1) It is unlawful for any person under 21 18 years of age
191 to smoke tobacco in, on, or within 1,000 feet of the real
192 property comprising a public or private elementary, middle, or
193 secondary school between the hours of 6 a.m. and midnight. This
194 section does not apply to any person occupying a moving vehicle
195 or within a private residence.
196 Section 5. Present subsections (3), (4), and (5) of section
197 569.002, Florida Statutes, are redesignated as subsections (4),
198 (5), and (6), respectively, present subsections (6) and (7) of
199 that section are amended, and a new subsection (3) is added to
200 that section, to read:
201 569.002 Definitions.—As used in this chapter, the term:
202 (3) “Electronic smoking device” means any device that can
203 be used to deliver aerosolized or vaporized nicotine to the
204 person inhaling from the device, including, but not limited to,
205 an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. The term
206 includes any component, part, or accessory of such a device,
207 sold separately or with the device, and includes any substance
208 intended to be aerosolized or vaporized during the use of the
209 device. The term does not include drugs, devices, or combination
210 products authorized for sale by the United States Food and Drug
211 Administration, as those terms are defined in the Federal Food,
212 Drug, and Cosmetic Act.
213 (7)(6) “Tobacco products” means any product that is made
214 from or derived from tobacco or that contains nicotine and is
215 intended for human consumption or is likely to be consumed,
216 whether smoked, heated, chewed, absorbed, dissolved, inhaled, or
217 ingested by any other means, including, but not limited to, a
218 cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or
219 snus. The term includes electronic smoking devices and any
220 component or accessory used in the consumption of a tobacco
221 product, such as filters, rolling papers, pipes, and liquids
222 used in electronic smoking devices, whether or not they contain
223 nicotine. The term does not include drugs, devices, or
224 combination products authorized for sale by the United States
225 Food and Drug Administration, as those terms are defined in the
226 Federal Food, Drug, and Cosmetic Act includes loose tobacco
227 leaves, and products made from tobacco leaves, in whole or in
228 part, and cigarette wrappers, which can be used for smoking,
229 sniffing, or chewing.
230 (7) “Any person under the age of 18” does not include any
231 person under the age of 18 who:
232 (a) Has had his or her disability of nonage removed under
233 chapter 743;
234 (b) Is in the military reserve or on active duty in the
235 Armed Forces of the United States;
236 (c) Is otherwise emancipated by a court of competent
237 jurisdiction and released from parental care and responsibility;
238 or
239 (d) Is acting in his or her scope of lawful employment with
240 an entity licensed under the provisions of chapter 210 or this
241 chapter.
242 Section 6. Subsections (1) and (2) of section 569.007,
243 Florida Statutes, are amended to read:
244 569.007 Sale or delivery of tobacco products;
245 restrictions.—
246 (1) In order to prevent persons under 21 18 years of age
247 from purchasing or receiving tobacco products, the sale or
248 delivery of tobacco products is prohibited, except when the
249 tobacco products are sold from behind a counter and are required
250 to be retrieved and hand delivered by an employee to the
251 consumer. Sales from a vending machine are prohibited. This
252 section does not apply to an establishment that prohibits
253 persons under 21 years of age on the licensed premises:
254 (a) When under the direct control or line of sight of the
255 dealer or the dealer’s agent or employee; or
256 (b) Sales from a vending machine are prohibited under the
257 provisions of paragraph (1)(a) and are only permissible from a
258 machine that is equipped with an operational lockout device
259 which is under the control of the dealer or the dealer’s agent
260 or employee who directly regulates the sale of items through the
261 machine by triggering the lockout device to allow the dispensing
262 of one tobacco product. The lockout device must include a
263 mechanism to prevent the machine from functioning if the power
264 source for the lockout device fails or if the lockout device is
265 disabled, and a mechanism to ensure that only one tobacco
266 product is dispensed at a time.
267 (2) The provisions of Subsection (1) shall not apply to an
268 establishment that prohibits persons under 18 years of age on
269 the licensed premises.
270 Section 7. Section 569.0075, Florida Statutes, is amended
271 to read:
272 569.0075 Gift of sample tobacco products prohibited.—The
273 gift of sample tobacco products to any person under the age of
274 21 18 by an entity licensed or permitted under the provisions of
275 chapter 210 or this chapter, or by an employee of such entity,
276 is prohibited and is punishable as provided in s. 569.101.
277 Section 8. Subsections (1), (2), and (3) of section
278 569.008, Florida Statutes, are amended to read:
279 569.008 Responsible retail tobacco products dealers;
280 qualifications; mitigation of disciplinary penalties; diligent
281 management and supervision; presumption.—
282 (1) The Legislature intends to prevent the sale of tobacco
283 products to persons under 21 18 years of age and to encourage
284 retail tobacco products dealers to comply with responsible
285 practices in accordance with this section.
286 (2) To qualify as a responsible retail tobacco products
287 dealer, the dealer must establish and implement procedures
288 designed to ensure that the dealer’s employees comply with the
289 provisions of this chapter. The dealer must provide a training
290 program for the dealer’s employees which addresses the use and
291 sale of tobacco products and which includes at least the
292 following topics:
293 (a) Laws covering the sale of tobacco products.
294 (b) Methods of recognizing and handling customers under 21
295 18 years of age.
296 (c) Procedures for proper examination of identification
297 cards in order to verify that customers are not under 21 18
298 years of age.
299 (d) The use of the age audit identification function on
300 electronic point-of-sale equipment, where available.
301 (3) In determining penalties under s. 569.006, the division
302 may mitigate penalties imposed against a dealer because of an
303 employee’s illegal sale of a tobacco product to a person under
304 18 years of age if the following conditions are met:
305 (a) The dealer is qualified as a responsible dealer under
306 this section.
307 (b) The dealer provided the training program required under
308 subsection (2) to that employee before the illegal sale
309 occurred.
310 (c) The dealer had no knowledge of that employee’s
311 violation at the time of the violation and did not direct,
312 approve, or participate in the violation.
313 (d) If the sale was made through a vending machine, the
314 machine was equipped with an operational lock-out device.
315 Section 9. Section 569.101, Florida Statutes, is amended to
316 read:
317 569.101 Selling, delivering, bartering, furnishing, or
318 giving tobacco products to persons under 21 18 years of age;
319 criminal penalties; defense.—
320 (1) It is unlawful to sell, deliver, barter, furnish, or
321 give, directly or indirectly, to any person who is under 21 18
322 years of age, any tobacco product.
323 (2) Any person who violates subsection (1) commits a
324 noncriminal violation punishable by a fine of no more than $500
325 misdemeanor of the second degree, punishable as provided in s.
326 775.082 or s. 775.083. However, any person who violates
327 subsection (1) for a second or subsequent time within 1 year of
328 the first violation, commits a noncriminal violation punishable
329 by a fine of no more than $1,000 misdemeanor of the first
330 degree, punishable as provided in s. 775.082 or s. 775.083.
331 (3) A person charged with a violation of subsection (1) has
332 a complete defense if, at the time the tobacco product was sold,
333 delivered, bartered, furnished, or given:
334 (a) The buyer or recipient falsely evidenced that she or he
335 was 21 18 years of age or older;
336 (b) The appearance of the buyer or recipient was such that
337 a prudent person would believe the buyer or recipient to be 21
338 18 years of age or older; and
339 (c) Such person carefully checked a driver license or an
340 identification card issued by this state or another state of the
341 United States, a passport, or a United States armed services
342 identification card presented by the buyer or recipient and
343 acted in good faith and in reliance upon the representation and
344 appearance of the buyer or recipient in the belief that the
345 buyer or recipient was 21 18 years of age or older.
346 Section 10. Section 569.11, Florida Statutes, is amended to
347 read:
348 569.11 Possession, Misrepresenting age or military service
349 to purchase, and purchase of tobacco products by persons under
350 21 18 years of age prohibited; penalties; jurisdiction;
351 disposition of fines.—
352 (1) It is unlawful for any person under 18 years of age to
353 knowingly possess any tobacco product. Any person under 18 years
354 of age who violates the provisions of this subsection commits a
355 noncriminal violation as provided in s. 775.08(3), punishable
356 by:
357 (a) For a first violation, 16 hours of community service
358 or, instead of community service, a $25 fine. In addition, the
359 person must attend a school-approved anti-tobacco program, if
360 locally available;
361 (b) For a second violation within 12 weeks of the first
362 violation, a $25 fine; or
363 (c) For a third or subsequent violation within 12 weeks of
364 the first violation, the court must direct the Department of
365 Highway Safety and Motor Vehicles to withhold issuance of or
366 suspend or revoke the person’s driver license or driving
367 privilege, as provided in s. 322.056.
368
369 Any second or subsequent violation not within the 12-week time
370 period after the first violation is punishable as provided for a
371 first violation.
372 (1)(2) It is unlawful for any person under 21 18 years of
373 age to misrepresent his or her age or military service for the
374 purpose of inducing a dealer or an agent or employee of the
375 dealer to sell, give, barter, furnish, or deliver any tobacco
376 product, or to purchase, or attempt to purchase, any tobacco
377 product from a person or a vending machine. Any person under 18
378 years of age who violates a provision of this subsection commits
379 a noncriminal violation as provided in s. 775.08(3), punishable
380 by:
381 (a) For a first violation, 16 hours of community service
382 or, instead of community service, a $25 fine and, in addition,
383 the person must attend a school-approved anti-tobacco program,
384 if available;
385 (b) For a second violation within 12 weeks of the first
386 violation, a $25 fine; or
387 (c) For a third or subsequent violation within 12 weeks of
388 the first violation, the court must direct the Department of
389 Highway Safety and Motor Vehicles to withhold issuance of or
390 suspend or revoke the person’s driver license or driving
391 privilege, as provided in s. 322.056.
392
393 Any second or subsequent violation not within the 12-week time
394 period after the first violation is punishable as provided for a
395 first violation.
396 (3) Any person under 18 years of age cited for committing a
397 noncriminal violation under this section must sign and accept a
398 civil citation indicating a promise to appear before the county
399 court or comply with the requirement for paying the fine and
400 must attend a school-approved anti-tobacco program, if locally
401 available. If a fine is assessed for a violation of this
402 section, the fine must be paid within 30 days after the date of
403 the citation or, if a court appearance is mandatory, within 30
404 days after the date of the hearing.
405 (2)(4) A person charged with a noncriminal violation under
406 this section must appear before the county court or comply with
407 the requirement for paying the fine. The court, after a hearing,
408 shall make a determination as to whether the noncriminal
409 violation was committed. If the court finds the violation was
410 committed, it shall impose an appropriate penalty as specified
411 in subsection (3).
412 (3) Any person who violates subsection (1) commits a
413 noncriminal violation and must serve at least 20 hours of
414 community service. Any person who violates subsection (1) a
415 second or subsequent time within 1 year of the first violation
416 commits a noncriminal violation and must serve at least 40 hours
417 of community service (1) or subsection (2). A person who
418 participates in community service shall be considered an
419 employee of the state for the purpose of chapter 440, for the
420 duration of such service.
421 (5)(a) If a person under 18 years of age is found by the
422 court to have committed a noncriminal violation under this
423 section and that person has failed to complete community
424 service, pay the fine as required by paragraph (1)(a) or
425 paragraph (2)(a), or attend a school-approved anti-tobacco
426 program, if locally available, the court must direct the
427 Department of Highway Safety and Motor Vehicles to withhold
428 issuance of or suspend the driver license or driving privilege
429 of that person for a period of 30 consecutive days.
430 (b) If a person under 18 years of age is found by the court
431 to have committed a noncriminal violation under this section and
432 that person has failed to pay the applicable fine as required by
433 paragraph (1)(b) or paragraph (2)(b), the court must direct the
434 Department of Highway Safety and Motor Vehicles to withhold
435 issuance of or suspend the driver license or driving privilege
436 of that person for a period of 45 consecutive days.
437 (6) Eighty percent of all civil penalties received by a
438 county court pursuant to this section shall be remitted by the
439 clerk of the court to the Department of Revenue for transfer to
440 the Department of Education to provide for teacher training and
441 for research and evaluation to reduce and prevent the use of
442 tobacco products by children. The remaining 20 percent of civil
443 penalties received by a county court pursuant to this section
444 shall remain with the clerk of the county court to cover
445 administrative costs.
446 Section 11. Paragraph (b) of subsection (2) and subsection
447 (3) of section 569.12, Florida Statutes, are amended to read:
448 569.12 Jurisdiction; tobacco product enforcement officers
449 or agents; enforcement.—
450 (2)
451 (b) A tobacco product enforcement officer is authorized to
452 issue a citation to a person under the age of 21 18 when, based
453 upon personal investigation, the officer has reasonable cause to
454 believe that the person has committed a civil infraction in
455 violation of s. 386.212 or s. 569.11.
456 (3) A correctional probation officer as defined in s.
457 943.10(3) is authorized to issue a citation to a person under
458 the age of 21 18 when, based upon personal investigation, the
459 officer has reasonable cause to believe that the person has
460 committed a civil infraction in violation of s. 569.11.
461 Section 12. Section 569.14, Florida Statutes, is amended to
462 read:
463 569.14 Posting of a sign stating that the sale of tobacco
464 products to persons under 21 18 years of age is unlawful;
465 enforcement; penalty.—
466 (1) A dealer that sells tobacco products shall post a clear
467 and conspicuous sign in each place of business where such
468 products are sold which substantially states the following:
469 THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF 21 18
470 IS AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
471 (2) A dealer that sells tobacco products and nicotine
472 products or nicotine dispensing devices, as defined in s.
473 877.112, may use a sign that substantially states the following:
474 THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR NICOTINE
475 DISPENSING DEVICES TO PERSONS UNDER THE AGE OF 18 IS AGAINST
476 FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
477 A dealer that uses a sign as described in this subsection meets
478 the signage requirements of subsection (1) and s. 877.112.
479 (2)(3) The division shall make available to dealers of
480 tobacco products signs that meet the requirements of subsection
481 (1) or subsection (2).
482 (3)(4) Any dealer that sells tobacco products shall provide
483 at the checkout counter in a location clearly visible to the
484 dealer or the dealer’s agent or employee instructional material
485 in a calendar format or similar format to assist in determining
486 whether a person is of legal age to be sold purchase tobacco
487 products. This point of sale material must contain substantially
488 the following language:
489 IF YOU WERE NOT BORN BEFORE THIS DATE
490 (insert date and applicable year)
491 YOU CANNOT BE SOLD BUY TOBACCO PRODUCTS.
492 Upon approval by the division, in lieu of a calendar a dealer
493 may use card readers, scanners, or other electronic or automated
494 systems that can verify whether a person is of legal age to
495 purchase tobacco products. Failure to comply with the provisions
496 contained in this subsection shall result in imposition of
497 administrative penalties as provided in s. 569.006.
498 (4)(5) The division, through its agents and inspectors,
499 shall enforce this section.
500 (5)(6) Any person who fails to comply with subsection (1)
501 is guilty of a misdemeanor of the second degree, punishable as
502 provided in s. 775.082 or s. 775.083.
503 Section 13. Subsection (4) of section 569.19, Florida
504 Statutes, is amended to read:
505 569.19 Annual report.—The division shall report annually
506 with written findings to the Legislature and the Governor by
507 December 31, on the progress of implementing the enforcement
508 provisions of this chapter. This must include, but is not
509 limited to:
510 (4) The number of persons under age 21 18 cited for
511 violations of s. 569.11 and sanctions imposed as a result of
512 citation.
513 Section 14. Section 877.112, Florida Statutes, is repealed.
514 Section 15. This act shall take effect October 1, 2018.