Florida Senate - 2019 SB 1618
By Senator Simmons
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 under
10 which it is unlawful to smoke in, on, or near school
11 property; amending s. 569.002, F.S.; defining the term
12 “electronic smoking device”; redefining the term
13 “tobacco products”; deleting exemptions relating to
14 tobacco products for persons under a certain age who
15 meet specified requirements related to disability of
16 nonage, military service, emancipation by a court and
17 release from parental care and responsibility, and
18 acting within the scope of lawful employment with
19 certain entities; amending s. 569.007, F.S.;
20 conforming provisions relating to the sale of tobacco
21 products to federal law; providing an exception to
22 laws relating to the sale of tobacco products for
23 establishments that prohibit persons under 21 years of
24 age from being on the licensed premises; amending s.
25 569.0075, F.S.; revising the age under which the gift
26 of tobacco products to a person by certain entities is
27 prohibited; amending s. 569.008, F.S.; revising
28 legislative intent to reflect that the Legislature
29 intends to prevent the sale of tobacco products to
30 persons under 21 years of age; eliminating the
31 division’s authority to mitigate penalties imposed
32 against a dealer for certain violations; amending s.
33 569.101, F.S.; revising the age limitation that
34 applies to the sale, delivery, bartering, furnishing,
35 or giving of tobacco products; revising penalties for
36 violations; conforming the age specified in provisions
37 related to a complete defense for persons charged with
38 certain violations; amending s. 569.11, F.S.; deleting
39 provisions prohibiting persons under 18 years of age
40 from possessing tobacco products; conforming the age
41 specified for misrepresentation of age to unlawfully
42 acquire tobacco products; revising the penalties for
43 certain persons who misrepresent their age; deleting a
44 provision requiring a person participating in
45 community service to be considered an employee of the
46 state for certain purposes; conforming a provision to
47 changes made by the act; amending ss. 569.12, 569.14,
48 and 569.19, F.S.; conforming provisions to changes
49 made by the act; repealing s. 877.112, F.S., relating
50 to restrictions on the sale and delivery of nicotine
51 products and nicotine dispensing devices; providing an
52 effective date.
54 Be It Enacted by the Legislature of the State of Florida:
56 Section 1. This act may be cited as the “Tobacco 21 Act.”
57 Section 2. Subsection (5) and paragraphs (e) and (g) of
58 subsection (8) of section 210.095, Florida Statutes, are amended
59 to read:
60 210.095 Mail order, Internet, and remote sales of tobacco
61 products; age verification.—
62 (5) Each person who mails, ships, or otherwise delivers
63 tobacco products in connection with an order for a delivery sale
65 (a) Include as part of the shipping documents, in a clear
66 and conspicuous manner, the following statement: “Tobacco
67 Products: Florida law prohibits shipping to individuals under 21
18 years of age and requires the payment of all applicable
70 (b) Use a method of mailing, shipping, or delivery which
71 obligates the delivery service to require:
72 1. The individual submitting the order for the delivery
73 sale or another adult who resides at the individual’s address to
74 sign his or her name to accept delivery of the shipping
75 container. Proof of the legal minimum purchase age of the
76 individual accepting delivery is required only if the individual
77 appears to be under 27 years of age.
78 2. Proof that the individual is either the addressee or the
79 adult designated by the addressee, in the form of a valid,
80 government-issued identification card bearing a photograph of
81 the individual who signs to accept delivery of the shipping
83 (c) Provide to the delivery service, if such service is
84 used, evidence of full compliance with subsection (7).
86 Any person who violates paragraph (a) commits a noncriminal
87 violation and must serve at least 20 hours of community service.
88 Any person who violates paragraph (a) a second or subsequent
89 time within 1 year of the first violation commits a noncriminal
90 violation and must serve at least 40 hours of community service
91 If the person accepting a purchase order for a delivery sale
92 delivers the tobacco products without using a delivery service,
93 the person must comply with all of the requirements of this
94 section which apply to a delivery service. Any failure to comply
95 with a requirement of this section constitutes a violation
96 thereo f.
98 (e) A person who, in connection with a delivery sale,
99 delivers tobacco products on behalf of a delivery service to an
100 individual who is not an adult commits a misdemeanor of the
101 second third degree, punishable as provided in s. 775.082 or s.
103 (g) An individual who is not an adult and who knowingly
104 violates any provision of this section commits a misdemeanor of
105 the third degree, punishable as provided in s. 775.082 or s.
107 Section 3. Section 322.056, Florida Statutes, is amended to
109 322.056 Mandatory revocation or suspension of, or delay of
110 eligibility for, driver license for persons under age 18 found
111 guilty of certain alcohol or , drug , or tobacco offenses;
113 (1) Notwithstanding the provisions of s. 322.055, if a
114 person under 18 years of age is found guilty of or delinquent
115 for a violation of s. 562.11(2), s. 562.111, or chapter 893,
117 (a) The person is eligible by reason of age for a driver
118 license or driving privilege, the court shall direct the
119 department to revoke or to withhold issuance of his or her
120 driver license or driving privilege for a period of:
121 1. Not less than 6 months and not more than 1 year for the
122 first violation.
123 2. Two years, for a subsequent violation.
124 (b) The person’s driver license or driving privilege is
125 under suspension or revocation for any reason, the court shall
126 direct the department to extend the period of suspension or
127 revocation by an additional period of:
128 1. Not less than 6 months and not more than 1 year for the
129 first violation.
130 2. Two years, for a subsequent violation.
131 (c) The person is ineligible by reason of age for a driver
132 license or driving privilege, the court shall direct the
133 department to withhold issuance of his or her driver license or
134 driving privilege for a period of:
135 1. Not less than 6 months and not more than 1 year after
136 the date on which he or she would otherwise have become
137 eligible, for the first violation.
138 2. Two years after the date on which he or she would
139 otherwise have become eligible, for a subsequent violation.
141 However, the court may , in its sound discretion, direct the
142 department to issue a license for driving privileges restricted
143 to business or employment purposes only, as defined in s.
144 322.271, if the person is otherwise qualified for such a
146 (2) If a person under 18 years of age is found by the court
147 to have committed a noncriminal violation under s. 569.11 or s.
148 877.112(6) or (7) and that person has failed to comply with the
149 procedures established in that section by failing to fulfill
150 community service requirements, failing to pay the applicable
151 fine, or failing to attend a locally available school-approved
152 anti-tobacco program, and:
153 (a) The person is eligible by reason of age for a driver
154 license or driving privilege, the court shall direct the
155 department to revoke or to withhold issuance of his or her
156 driver license or driving privilege as follows:
157 1. For the first violation, for 30 days.
158 2. For the second violation within 12 weeks of the first
159 violation, for 45 days.
160 (b) The person’s driver license or driving privilege is
161 under suspension or revocation for any reason, the court shall
162 direct the department to extend the period of suspension or
163 revocation by an additional period as follows:
164 1. For the first violation, for 30 days.
165 2. For the second violation within 12 weeks of the first
166 violation, for 45 days.
167 (c) The person is ineligible by reason of age for a driver
168 license or driving privilege, the court shall direct the
169 department to withhold issuance of his or her driver license or
170 driving privilege as follows:
171 1. For the first violation, for 30 days.
172 2. For the second violation within 12 weeks of the first
173 violation, for 45 days.
175 Any second violation of s. 569.11 or s. 877.112(6) or (7) not
176 within the 12-week period after the first violation will be
177 treated as a first violation and in the same manner as provided
178 in this subsection.
179 (3) If a person under 18 years of age is found by the court
180 to have committed a third violation of s. 569.11 or s.
181 877.112(6) or (7) within 12 weeks of the first violation, the
182 court must direct the Department of Highway Safety and Motor
183 Vehicles to suspend or withhold issuance of his or her driver
184 license or driving privilege for 60 consecutive days. Any third
185 violation of s. 569.11 or s. 877.112(6) or (7) not within the
186 12-week period after the first violation will be treated as a
187 first violation and in the same manner as provided in subsection
189 (2) (4) A penalty imposed under this section shall be in
190 addition to any other penalty imposed by law.
191 (5) The suspension or revocation of a person’s driver
192 license imposed pursuant to subsection (2) or subsection (3),
193 shall not result in or be cause for an increase of the convicted
194 person’s, or his or her parent’s or legal guardian’s, automobile
195 insurance rate or premium or result in points assessed against
196 the person’s driving record.
197 Section 4. Subsection (1) of section 386.212, Florida
198 Statutes, is amended to read:
199 386.212 Smoking prohibited near school property; penalty.—
200 (1) It is unlawful for any person under 21 18 years of age
201 to smoke tobacco in, on, or within 1,000 feet of the real
202 property comprising a public or private elementary, middle, or
203 secondary school between the hours of 6 a.m. and midnight. This
204 section does not apply to any person occupying a moving vehicle
205 or within a private residence.
206 Section 5. Present subsections (3), (4), and (5) of section
207 569.002, Florida Statutes, are redesignated as subsections (4),
208 (5), and (6), respectively, present subsections (6) and (7) of
209 that section are amended, and a new subsection (3) is added to
210 that section, to read:
211 569.002 Definitions.—As used in this chapter, the term:
212 (3) “Electronic smoking device” means any device that can
213 be used to deliver aerosolized or vaporized nicotine to the
214 person inhaling from the device, including, but not limited to,
215 an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. The term
216 includes any component, part, or accessory of such a device,
217 sold separately or with the device, and includes any substance
218 intended to be aerosolized or vaporized during the use of the
219 device. The term does not include drugs, devices, or combination
220 products authorized for sale by the United States Food and Drug
221 Administration, as those terms are defined in the Federal Food,
222 Drug, and Cosmetic Act.
223 (7) (6) “Tobacco products” means any product that is made
224 from or derived from tobacco or that contains nicotine and is
225 intended for human consumption or is likely to be consumed,
226 whether smoked, heated, chewed, absorbed, dissolved, inhaled, or
227 ingested by any other means, including, but not limited to, a
228 cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or
229 snus. The term includes electronic smoking devices and any
230 component or accessory used in the consumption of a tobacco
231 product, such as filters, rolling papers, pipes, and liquids
232 used in electronic smoking devices, whether or not they contain
233 nicotine. The term does not include drugs, devices, or
234 combination products authorized for sale by the United States
235 Food and Drug Administration, as those terms are defined in the
236 Federal Food, Drug, and Cosmetic Act includes loose tobacco
237 leaves, and products made from tobacco leaves, in whole or in
238 part, and cigarette wrappers, which can be used for smoking,
239 sniffing, or chewing.
240 (7) “Any person under the age of 18” does not include any
241 person under the age of 18 who:
242 (a) Has had his or her disability of nonage removed under
243 chapter 743;
244 (b) Is in the military reserve or on active duty in the
245 Armed Forces of the United States;
246 (c) Is otherwise emancipated by a court of competent
247 jurisdiction and released from parental care and responsibility;
249 (d) Is acting in his or her scope of lawful employment with
250 an entity licensed under the provisions of chapter 210 or this
252 Section 6. Subsections (1) and (2) of section 569.007,
253 Florida Statutes, are amended to read:
254 569.007 Sale or delivery of tobacco products;
256 (1) In order to prevent persons under 21 18 years of age
257 from purchasing or receiving tobacco products, the sale or
258 delivery of tobacco products is prohibited, except when the
259 tobacco products are sold from behind a counter and are required
260 to be retrieved and hand delivered by an employee to the
261 consumer. Sales from a vending machine are prohibited. This
262 section does not apply to an establishment that prohibits
263 persons under 21 years of age on the licensed premises :
264 (a) When under the direct control or line of sight of the
265 dealer or the dealer’s agent or employee; or
266 (b) Sales from a vending machine are prohibited under the
267 provisions of paragraph (1)(a) and are only permissible from a
268 machine that is equipped with an operational lockout device
269 which is under the control of the dealer or the dealer’s agent
270 or employee who directly regulates the sale of items through the
271 machine by triggering the lockout device to allow the dispensing
272 of one tobacco product. The lockout device must include a
273 mechanism to prevent the machine from functioning if the power
274 source for the lockout device fails or if the lockout device is
275 disabled, and a mechanism to ensure that only one tobacco
276 product is dispensed at a time.
277 (2) The provisions of s ubsection (1) shall not apply to an
278 establishme nt that prohibits persons under 18 years of age on
279 the licensed premises.
280 Section 7. Section 569.0075, Florida Statutes, is amended
281 to read:
282 569.0075 Gift of sample tobacco products prohibited.—The
283 gift of sample tobacco products to any person under the age of
284 21 18 by an entity licensed or permitted under the provisions of
285 chapter 210 or this chapter, or by an employee of such entity,
286 is prohibited and is punishable as provided in s. 569.101.
287 Section 8. Subsections (1), (2), and (3) of section
288 569.008, Florida Statutes, are amended to read:
289 569.008 Responsible retail tobacco products dealers;
290 qualifications; mitigation of disciplinary penalties; diligent
291 management and supervision; presumption.—
292 (1) The Legislature intends to prevent the sale of tobacco
293 products to persons under 21 18 years of age and to encourage
294 retail tobacco products dealers to comply with responsible
295 practices in accordance with this section.
296 (2) To qualify as a responsible retail tobacco products
297 dealer, the dealer must establish and implement procedures
298 designed to ensure that the dealer’s employees comply with the
299 provisions of this chapter. The dealer must provide a training
300 program for the dealer’s employees which addresses the use and
301 sale of tobacco products and which includes at least the
302 following topics:
303 (a) Laws covering the sale of tobacco products.
304 (b) Methods of recognizing and handling customers under 21
305 18 years of age.
306 (c) Procedures for proper examination of identification
307 cards in order to verify that customers are not under 21 18
308 years of age.
309 (d) The use of the age audit identification function on
310 electronic point-of-sale equipment, where available.
311 (3) In determining penalties under s. 569.006, the division
312 may mitigate penalties imposed against a dealer because of an
313 employee’s illegal sale of a tobacco product to a person under
314 18 years of age if the following conditions are met:
315 (a) The dealer is qualified as a responsible dealer under
316 this section.
317 (b) The dealer provided the training program required under
318 subsection (2) to that employee before the illegal sale
320 (c) The dealer had no knowledge of that employee’s
321 violation at the time of the violation and did not direct,
322 approve, or participate in the violation.
323 (d) If the sale was made through a vending machine, the
324 machine was equipped with an operational lock-out device.
325 Section 9. Section 569.101, Florida Statutes, is amended to
327 569.101 Selling, delivering, bartering, furnishing, or
328 giving tobacco products to persons under 21 18 years of age;
329 criminal penalties; defense.—
330 (1) It is unlawful to sell, deliver, barter, furnish, or
331 give, directly or indirectly, to any person who is under 21 18
332 years of age, any tobacco product.
333 (2) Any person who violates subsection (1) commits a
334 noncriminal violation punishable by a fine of not more than $500
335 misdemeanor of the second degree, punishable as provided in s.
336 775.082 or s. 775.083. However, any person who violates
337 subsection (1) for a second or subsequent time within 1 year of
338 the first violation , commits a noncriminal violation punishable
339 by a fine of not more than $1,000 misdemeanor of the first
340 degree, punishable as provided in s. 775.082 or s. 775.083.
341 (3) A person charged with a violation of subsection (1) has
342 a complete defense if, at the time the tobacco product was sold,
343 delivered, bartered, furnished, or given:
344 (a) The buyer or recipient falsely evidenced that she or he
345 was 21 18 years of age or older;
346 (b) The appearance of the buyer or recipient was such that
347 a prudent person would believe the buyer or recipient to be 21
348 18 years of age or older; and
349 (c) Such person carefully checked a driver license or an
350 identification card issued by this state or another state of the
351 United States, a passport, or a United States armed services
352 identification card presented by the buyer or recipient and
353 acted in good faith and in reliance upon the representation and
354 appearance of the buyer or recipient in the belief that the
355 buyer or recipient was 21 18 years of age or older.
356 Section 10. Section 569.11, Florida Statutes, is amended to
358 569.11 Possession, Misrepresenting age or military service
359 to purchase , and purchasing purchase of tobacco products by
360 persons under 21 18 years of age prohibited; penalties;
361 jurisdiction ; disposition of fines.—
362 (1) It is unlawful for any person under 18 years of age to
363 knowingly possess any tobacco product. Any person under 18 years
364 of age who violates the provisions of this subsection commits a
365 noncriminal violation as provided in s. 775.08(3), punishable
367 (a) For a first violation, 16 hours of community service
368 or, instead of community service, a $25 fine. In addition, the
369 person must attend a school-approved anti-tobacco program, if
370 locally available;
371 (b) For a second violation within 12 weeks of the first
372 violation, a $25 fine; or
373 (c) For a third or subsequent violation within 12 weeks of
374 the first violation, the court must direct the Department of
375 Highway Safety and Motor Vehicles to withhold issuance of or
376 suspend or revoke the person’s driver license or driving
377 privilege, as provided in s. 322.056.
379 Any second or subsequent violation not within the 12-week time
380 period after the first violation is punishable as provided for a
381 first violation.
382 (1) (2) It is unlawful for any person under 21 18 years of
383 age to misrepresent his or her age or military service for the
384 purpose of inducing a dealer or an agent or employee of the
385 dealer to sell, give, barter, furnish, or deliver any tobacco
386 product, or to purchase, or attempt to purchase, any tobacco
387 product from a person or a vending machine. Any person under 18
388 years of age who violates a provision of this subsection commits
389 a noncriminal violation as provided in s. 775.08(3), punishable
391 (a) For a first violation, 16 hours of community service
392 or, instead of community service, a $25 fine and, in addition,
393 the person must attend a school-approved anti-tobacco program,
394 if available;
395 (b) For a second violation within 12 weeks of the first
396 violation, a $25 fine; or
397 (c) For a third or subsequent violation within 12 weeks of
398 the first violation, the court must direct the Department of
399 Highway Safety and Motor Vehicles to withhold issuance of or
400 suspend or revoke the person’s driver license or driving
401 privilege, as provided in s. 322.056.
403 Any second or subsequent violation not within the 12-week time
404 period after the first violation is punishable as provided for a
405 first violation.
406 (3) Any person under 18 years of age cited for committing a
407 noncriminal violation under this section must sign and accept a
408 civil citation indicating a promise to appear before the county
409 court or comply with the requirement for paying the fine and
410 must attend a school-approved anti-tobacco program, if locally
411 available. If a fine is assessed for a violation of this
412 section, the fine must be paid within 30 days after the date of
413 the citation or, if a court appearance is mandatory, within 30
414 days after the date of the hearing.
415 (2) (4) A person charged with a noncriminal violation under
416 this section must appear before the county court or comply with
417 the requirement for paying the fine. The court, after a hearing,
418 shall make a determination as to whether the noncriminal
419 violation was committed. If the court finds the violation was
420 committed, it shall impose an appropriate penalty as specified
421 in subsection (3).
422 (3) Any person who violates subsection (1) commits a
423 noncriminal violation and must serve at least 20 hours of
424 community service. Any person who violates subsection (1) a
425 second or subsequent time within 1 year of the first violation
426 commits a noncriminal violation and must serve at least 40 hours
427 of community service (1 ) or subsection (2 ). A person who
428 participates in community service shall be considered an
429 employee of the state for the purpose of chapter 440, for the
430 duration of such service.
431 (5)(a) If a person under 18 years of age is found by the
432 court to have committed a noncriminal violation under this
433 section and that person has failed to complete community
434 service, pay the fine as required by paragraph (1)(a) or
435 paragraph (2)(a), or attend a school-approved anti-tobacco
436 program, if locally available, the court must direct the
437 Department of Highway Safety and Motor Vehicles to withhold
438 issuance of or suspend the driver license or driving privilege
439 of that person for a period of 30 consecutive days.
440 (b) If a person under 18 years of age is found by the court
441 to have committed a noncriminal violation under this section and
442 that person has failed to pay the applicable fine as required by
443 paragraph (1)(b) or paragraph (2)(b), the court must direct the
444 Department of Highway Safety and Motor Vehicles to withhold
445 issuance of or suspend the driver license or driving privilege
446 of that person for a period of 45 consecutive days.
447 (6) Eighty percent of all civil penalties received by a
448 county court pursuant to this section shall be remitted by the
449 clerk of the court to the Department of Revenue for transfer to
450 the Department of Education to provide for teacher training and
451 for research and evaluation to reduce and prevent the use of
452 tobacco products by children. The remaining 20 percent of civil
453 penalties received by a county court pursuant to this section
454 shall remain with the clerk of the county court to cover
455 administrative costs.
456 Section 11. Paragraph (b) of subsection (2) and subsection
457 (3) of section 569.12, Florida Statutes, are amended to read:
458 569.12 Jurisdiction; tobacco product enforcement officers
459 or agents; enforcement.—
461 (b) A tobacco product enforcement officer is authorized to
462 issue a citation to a person under the age of 21 18 when, based
463 upon personal investigation, the officer has reasonable cause to
464 believe that the person has committed a civil infraction in
465 violation of s. 386.212 or s. 569.11.
466 (3) A correctional probation officer as defined in s.
467 943.10(3) is authorized to issue a citation to a person under
468 the age of 21 18 when, based upon personal investigation, the
469 officer has reasonable cause to believe that the person has
470 committed a civil infraction in violation of s. 569.11.
471 Section 12. Section 569.14, Florida Statutes, is amended to
473 569.14 Posting of a sign stating that the sale of tobacco
474 products to persons under 21 18 years of age is unlawful;
475 enforcement; penalty.—
476 (1) A dealer that sells tobacco products shall post a clear
477 and conspicuous sign in each place of business where such
478 products are sold which substantially states the following:
480 THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
481 OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
482 REQUIRED FOR PURCHASE.
484 (2) A dealer that sells tobacco products and nicotine
485 products or nicotine dispensing dev ices, as defined in s.
486 877.112, may use a sign that substantially states the following:
488 THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
489 NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
490 OF 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED
491 FOR PURCHASE.
493 A dealer that uses a sign as described in this subsection meets
494 the signage requirements of subsection (1) and s. 877.112.
495 (2) (3) The division shall make available to dealers of
496 tobacco products signs that meet the requirements of subsection
497 (1) or subsection (2).
498 (3) (4) Any dealer that sells tobacco products shall provide
499 at the checkout counter in a location clearly visible to the
500 dealer or the dealer’s agent or employee instructional material
501 in a calendar format or similar format to assist in determining
502 whether a person is of legal age to be sold purchase tobacco
503 products. This point of sale material must contain substantially
504 the following language:
506 IF YOU WERE NOT BORN BEFORE THIS DATE
507 (insert date and applicable year)
508 YOU CANNOT BE SOLD BUY TOBACCO PRODUCTS.
510 Upon approval by the division, in lieu of a calendar a dealer
511 may use card readers, scanners, or other electronic or automated
512 systems that can verify whether a person is of legal age to
513 purchase tobacco products. Failure to comply with the provisions
514 contained in this subsection shall result in imposition of
515 administrative penalties as provided in s. 569.006.
516 (4) (5) The division, through its agents and inspectors,
517 shall enforce this section.
518 (5) (6) Any person who fails to comply with subsection (1)
519 is guilty of a misdemeanor of the second degree, punishable as
520 provided in s. 775.082 or s. 775.083.
521 Section 13. Subsection (4) of section 569.19, Florida
522 Statutes, is amended to read:
523 569.19 Annual report.—The division shall report annually
524 with written findings to the Legislature and the Governor by
525 December 31, on the progress of implementing the enforcement
526 provisions of this chapter. This must include, but is not
527 limited to:
528 (4) The number of persons under age 21 18 cited for
529 violations of s. 569.11 and sanctions imposed as a result of
531 Section 14. Section 877.112, Florida Statutes, is repealed.
532 Section 15. This act shall take effect October 1, 2019.