Florida Senate - 2020                                     SB 810
       
       
        
       By Senator Simmons
       
       
       
       
       
       9-00500A-20                                            2020810__
    1                        A bill to be entitled                      
    2         An act relating to tobacco and nicotine products;
    3         providing a short title; amending s. 210.095, F.S.;
    4         deleting and redefining terms; defining the terms
    5         “distributor” and “electronic smoking device”;
    6         restricting delivery sales of tobacco products to
    7         certain entities; prohibiting delivery sales directly
    8         to unlicensed persons; prohibiting a person from
    9         aiding or assisting another person in certain
   10         violations; conforming provisions to changes made by
   11         the act; amending s. 386.212, F.S.; deleting age and
   12         time restrictions relating to the prohibition of
   13         smoking and vaping near school property; amending s.
   14         569.002, F.S.; defining the term “electronic smoking
   15         device”; revising the definition of the term “tobacco
   16         products” to include additional products; replacing
   17         the term “any person under the age of 18” with “any
   18         person under the age of 21”; revising exemptions;
   19         amending s. 569.003, F.S.; conforming provisions to
   20         changes made by the act; revising the conditions under
   21         which the Division of Alcoholic Beverages and Tobacco
   22         may refuse to issue retail tobacco products dealer
   23         permits; exempting certain entities from fees
   24         associated with such permits; amending s. 569.005,
   25         F.S.; revising the fines for certain noncriminal
   26         violations; amending s. 569.006, F.S.; requiring
   27         revenues from certain fines to be used for specified
   28         purposes; requiring the division to deposit such
   29         revenues in the Alcoholic Beverage and Tobacco Trust
   30         Fund rather than the General Revenue Fund; amending s.
   31         569.007, F.S.; revising the age limitation of persons
   32         to whom it is unlawful to sell or deliver tobacco
   33         products; revising the conditions under which sales of
   34         tobacco products from a vending machine are
   35         authorized; requiring a dealer or a dealer’s agent to
   36         require proof of age of tobacco product purchasers;
   37         amending s. 569.0075, F.S.; revising the age under
   38         which the gift of sample tobacco products to a person
   39         by certain entities is prohibited; amending s.
   40         569.008, F.S.; revising legislative intent to reflect
   41         that the Legislature intends to prevent the sale of
   42         tobacco products to persons under a specified age;
   43         conforming provisions to changes made by the act;
   44         deleting an authorization for the division to mitigate
   45         penalties imposed against a dealer for certain
   46         violations; revising what constitutes prima facie
   47         evidence of a lack of due diligence by a dealer under
   48         certain circumstances; amending s. 569.101, F.S.;
   49         revising the age limitation that applies to the sale,
   50         delivery, bartering, furnishing, or giving of tobacco
   51         products; conforming provisions to changes made by the
   52         act; revising civil penalties; deleting criminal
   53         penalties; revising the elements of a complete defense
   54         for violations relating to selling, delivering,
   55         bartering, furnishing, or giving tobacco products to
   56         persons under a specified age; amending s. 569.11,
   57         F.S.; deleting a provision that prohibits persons
   58         under a specified age from possessing a tobacco
   59         product; conforming provisions to changes made by the
   60         act; revising the age limitation that applies to
   61         unlawful misrepresentation of age for certain
   62         purposes; conforming provisions to changes made by the
   63         act; deleting provisions relating to requirements for
   64         persons cited for committing certain noncriminal
   65         violations; amending s. 569.12, F.S.; deleting
   66         provisions authorizing tobacco product enforcement
   67         officers and correctional probation officers to issue
   68         citations under certain circumstances; requiring that
   69         dealers be subject to certain compliance checks;
   70         amending ss. 569.14 and 569.19, F.S.; conforming
   71         provisions to changes made by the act; repealing s.
   72         877.112, F.S., relating to nicotine products and
   73         nicotine dispensing devices; providing an effective
   74         date.
   75          
   76  Be It Enacted by the Legislature of the State of Florida:
   77  
   78         Section 1. This act may be cited as the “Tobacco 21 Act.”
   79         Section 2. Section 210.095, Florida Statutes, is amended to
   80  read:
   81         210.095 Mail order, Internet, and remote sales of tobacco
   82  products; age verification.—
   83         (1) For purposes of this section, the term:
   84         (a)“Adult” means an individual who is at least of the
   85  legal minimum purchase age for tobacco products.
   86         (b) “Consumer” means a person in this state who comes into
   87  possession of any tobacco product subject to the tax imposed by
   88  this chapter and who, at the time of possession, is not a
   89  distributor intending to sell or distribute the tobacco product,
   90  a retailer, or a wholesaler.
   91         (a)(c) “Delivery sale” means any sale of tobacco products
   92  to a retailer, wholesale dealer, distributing agent,
   93  distributor, importer, or exporter consumer in this state for
   94  which:
   95         1. The retailer, wholesale dealer, distributing agent,
   96  distributor, importer, or exporter consumer submits the order
   97  for the sale by telephonic or other voice transmission, mail,
   98  delivery service, or the Internet or other online service; or
   99         2. The tobacco products are delivered by use of mail or a
  100  delivery service.
  101         (b)(d) “Delivery service” means any person engaged in the
  102  commercial delivery of letters, packages, or other containers.
  103         (c)“Distributor” has the same meaning as in s. 210.25.
  104         (d)“Electronic smoking device” has the same meaning as in
  105  s. 569.002.
  106         (e) “Legal minimum purchase age” means the minimum age at
  107  which an individual may legally purchase tobacco products in
  108  this state.
  109         (f) “Mail” or “mailing” means the shipment of tobacco
  110  products through the United States Postal Service.
  111         (e)(g) “Retailer” means any person engaged in the business
  112  of selling tobacco products to ultimate consumers who is not a
  113  licensed distributor but who is in possession of tobacco
  114  products subject to tax under this chapter for the purposes of
  115  selling the tobacco products to consumers.
  116         (h) “Shipping container” means a container in which tobacco
  117  products are shipped in connection with a delivery sale.
  118         (i) “Shipping document” means a bill of lading, airbill,
  119  United States Postal Service form, or any other document used to
  120  verify the undertaking by a delivery service to deliver letters,
  121  packages, or other containers.
  122         (f)(j) “Tobacco products” has the same meaning as in s.
  123  569.002 means all cigarettes, smoking tobacco, snuff, fine-cut
  124  chewing tobacco, cut and granulated tobacco, cavendish, and plug
  125  or twist tobacco.
  126         (2) Licensed retailers, licensed wholesale dealers,
  127  licensed distributing agents, licensed distributors, licensed
  128  importers, and licensed exporters may accept delivery sales of
  129  tobacco products in this state. Delivery sales directly to
  130  unlicensed persons are prohibited.
  131         (3)A person may not, with knowledge or reason to know of
  132  the violation, aid or assist another person in a violation of
  133  this section.
  134         (a) A sale of tobacco products constituting a delivery sale
  135  pursuant to paragraph (1)(c) is a delivery sale regardless of
  136  whether the person accepting the order for the delivery sale is
  137  located inside or outside this state.
  138         (b) A retailer must obtain a license from the division
  139  pursuant to the requirements of this chapter before accepting an
  140  order for a delivery sale.
  141         (c) A person may not make a delivery sale of tobacco
  142  products to any individual who is not an adult.
  143         (d) Each person accepting an order for a delivery sale must
  144  comply with each of the following:
  145         1. The age-verification requirements set forth in
  146  subsection (3).
  147         2. The disclosure requirements set forth in subsection (4).
  148         3. The shipping requirements set forth in subsection (5).
  149         4. The registration and reporting requirements set forth in
  150  subsection (6).
  151         5. The tax collection requirements set forth in subsection
  152  (7).
  153         6. The licensing and tax stamp requirements set forth in
  154  this chapter which apply to sales of tobacco products occurring
  155  entirely in this state.
  156         7. All laws of this state generally applicable to sales of
  157  tobacco products occurring entirely in this state which impose
  158  excise taxes and assessments.
  159         (3) A person may not mail, ship, or otherwise deliver
  160  tobacco products in connection with an order for a delivery sale
  161  unless, before the first delivery to the consumer, the person
  162  accepting the order for the delivery sale:
  163         (a) Obtains from the individual submitting the order a
  164  certification that includes:
  165         1. Reliable confirmation that the individual is an adult;
  166  and
  167         2. A statement signed by the individual in writing and
  168  under penalty of perjury which:
  169         a. Certifies the address and date of birth of the
  170  individual; and
  171         b. Confirms that the individual wants to receive delivery
  172  sales from a tobacco company and understands that, under the
  173  laws of this state, the following actions are illegal:
  174         (I) Signing another individual’s name to the certification;
  175         (II) Selling tobacco products to individuals under the
  176  legal minimum purchase age; and
  177         (III) Purchasing tobacco products, if the person making the
  178  purchase is under the legal minimum purchase age.
  179         (b) Makes a good faith effort to verify the information
  180  contained in the certification provided by the individual
  181  pursuant to paragraph (a) against a commercially available
  182  database that may be reasonably relied upon for accurate age
  183  information or obtains a photocopy or other image of a valid
  184  government-issued identification card stating the date of birth
  185  or age of the individual.
  186         (c) Provides to the individual, via electronic mail or
  187  other means, a notice meeting the requirements of subsection
  188  (4).
  189         (d) If an order for tobacco products is made pursuant to an
  190  advertisement on the Internet, receives payment for the delivery
  191  sale from the consumer by a credit or debit card issued in the
  192  name of the consumer, or by personal or company check of the
  193  consumer.
  194         (e) Imposes a two-carton minimum on each order of
  195  cigarettes, and requires payment for the purchase of any tobacco
  196  product to be made by personal or company check of the purchaser
  197  or the purchaser’s credit card or debit card. Payment by money
  198  order or cash may not be received or permitted. The person
  199  accepting the order for delivery sale shall submit, to each
  200  credit card acquiring company with which the person has credit
  201  card sales, identification information in an appropriate form
  202  and format so that the words “tobacco product” may be printed in
  203  the purchaser’s credit card statement when a purchase of a
  204  tobacco product is made by credit card payment.
  205         (f) Makes a telephone call after 5 p.m. to the purchaser
  206  confirming the order before shipping the tobacco products. The
  207  telephone call may be a person-to-person call or a recorded
  208  message. The person accepting the order for delivery sale is not
  209  required to speak directly with a person and may leave a message
  210  on an answering machine or through voice mail.
  211         In addition to the requirements of this subsection, a
  212  person accepting an order for a delivery sale may request that a
  213  consumer provide an electronic mail address.
  214         (4) The notice described in paragraph (3)(c) must include
  215  prominent and clearly legible statements that sales of tobacco
  216  products are:
  217         (a) Illegal if made to individuals who are not adults.
  218         (b) Restricted to those individuals who provide verifiable
  219  proof of age in accordance with subsection (3).
  220         (c) Taxable under this chapter.
  221  
  222  The notice must include an explanation of how each tax has been,
  223  or is to be, paid with respect to the delivery sale.
  224         (5) Each person who mails, ships, or otherwise delivers
  225  tobacco products in connection with an order for a delivery sale
  226  must:
  227         (a) Include as part of the shipping documents, in a clear
  228  and conspicuous manner, the following statement: “Tobacco
  229  Products: Florida law prohibits shipping to individuals under 18
  230  years of age and requires the payment of all applicable taxes.”
  231         (b) Use a method of mailing, shipping, or delivery which
  232  obligates the delivery service to require:
  233         1. The individual submitting the order for the delivery
  234  sale or another adult who resides at the individual’s address to
  235  sign his or her name to accept delivery of the shipping
  236  container. Proof of the legal minimum purchase age of the
  237  individual accepting delivery is required only if the individual
  238  appears to be under 27 years of age.
  239         2. Proof that the individual is either the addressee or the
  240  adult designated by the addressee, in the form of a valid,
  241  government-issued identification card bearing a photograph of
  242  the individual who signs to accept delivery of the shipping
  243  container.
  244         (c) Provide to the delivery service, if such service is
  245  used, evidence of full compliance with subsection (7).
  246  
  247  If the person accepting a purchase order for a delivery sale
  248  delivers the tobacco products without using a delivery service,
  249  the person must comply with all of the requirements of this
  250  section which apply to a delivery service. Any failure to comply
  251  with a requirement of this section constitutes a violation
  252  thereof.
  253         (6)(a) Before making sales or shipping tobacco products in
  254  connection with sales, a person shall file with the division a
  255  statement providing the person’s name, trade name, and the
  256  address of the person’s principal place of business, as well as
  257  any other place of business.
  258         (b) No later than the 10th day of each month, each person
  259  who has made a sale or mailed, shipped, or otherwise delivered
  260  tobacco products in connection with any sale during the previous
  261  calendar month shall file with the division a memorandum or a
  262  copy of the invoice, providing for each sale:
  263         1. The name and address of the individual who submitted the
  264  order for the sale.
  265         2. The name and address of the individual who accepted
  266  delivery of the tobacco products.
  267         3. The name and address of the person who accepted the
  268  order for the sale of the tobacco products.
  269         4. The name and address of the delivery service and the
  270  name of the individual making the delivery.
  271         5. The brand or brands of the tobacco products sold in the
  272  sale.
  273         6. The quantity of each brand of tobacco products sold in
  274  the sale.
  275         (c) A person may comply with the requirements of this
  276  subsection by complying with the requirements of 15 U.S.C. s.
  277  376.
  278         (d) This section does not apply to sales of tobacco
  279  products by a licensed distributor or to sales of tobacco
  280  products by a retailer purchased from a licensed distributor.
  281         (7) Each person accepting a purchase order for a delivery
  282  sale shall collect and remit to the division all taxes imposed
  283  on tobacco products by this state with respect to the delivery
  284  sale. With respect to cigarettes, the collection and remission
  285  are not required if the person has obtained proof in the form of
  286  the presence of applicable tax stamps or tax-exempt stamps, or
  287  other proof that the taxes have already been paid to this state.
  288         (4)(8)(a) Except as otherwise provided in this section, a
  289  violation of this section by a person other than an individual
  290  who is not an adult is a misdemeanor of the first degree,
  291  punishable as provided in s. 775.082 or s. 775.083, and:
  292         1. For a first violation of this section, a the person
  293  shall be fined $1,000 or five times the retail value of the
  294  tobacco products involved in the violation, whichever is
  295  greater.
  296         2. For a second or subsequent violation of this section,
  297  the person shall be fined $5,000 or five times the retail value
  298  of the tobacco products involved in the violation, whichever is
  299  greater.
  300         (b)A person who is an adult and knowingly submits a false
  301  certification under subsection (3) commits a misdemeanor of the
  302  first degree, punishable as provided in s. 775.082 or s.
  303  775.083. For each offense, the person shall be fined $10,000 or
  304  five times the retail value of the tobacco products involved in
  305  the violation, whichever is greater.
  306         (c) A person who fails to pay any tax required in
  307  connection with a delivery sale shall pay, in addition to any
  308  other penalty, a penalty of five times the retail value of the
  309  tobacco products involved.
  310         (b)(d) Any tobacco products sold or attempted to be sold in
  311  a delivery sale not meeting the requirements of this section
  312  shall be forfeited to the state pursuant to s. 210.185.
  313         (e) A person who, in connection with a delivery sale,
  314  delivers tobacco products on behalf of a delivery service to an
  315  individual who is not an adult commits a misdemeanor of the
  316  third degree, punishable as provided in s. 775.082 or s.
  317  775.083.
  318         (c)(f) Any fixture, equipment, or other material or
  319  personal property on the premises of any person who, with the
  320  intent to defraud this state, mails or ships tobacco products
  321  into this state and fails to satisfy any of the requirements of
  322  this section is a contraband article within the definition of s.
  323  932.701(2)(a)3.
  324         (g) An individual who is not an adult and who knowingly
  325  violates any provision of this section commits a misdemeanor of
  326  the third degree, punishable as provided in s. 775.082 or s.
  327  775.083.
  328         (5)(9) The Attorney General, the Attorney General’s
  329  designee, a state attorney, or any person who holds a permit
  330  under 26 U.S.C. s. 5713 may bring an action in the appropriate
  331  court in this state to prevent or restrain violations of this
  332  section by any person.
  333         Section 3. Subsection (1) of section 386.212, Florida
  334  Statutes, is amended to read:
  335         386.212 Smoking and vaping prohibited near school property;
  336  penalty.—
  337         (1) It is unlawful for any person under 18 years of age to
  338  smoke tobacco or vape in, on, or within 1,000 feet of the real
  339  property comprising a public or private elementary, middle, or
  340  secondary school between the hours of 6 a.m. and midnight. This
  341  section does not apply to any person occupying a moving vehicle
  342  or within a private residence.
  343         Section 4. Present subsections (1), (2), and (3) through
  344  (6) of section 569.002, Florida Statutes, are redesignated as
  345  subsections (2), (3), and (5) through (8), respectively, a new
  346  subsection (4) is added to that section, and present subsections
  347  (6) and (7) are amended, to read:
  348         569.002 Definitions.—As used in this chapter, the term:
  349         (4)“Electronic smoking device” means any device that may
  350  be used to deliver any aerosolized or vaporized substance to the
  351  person inhaling from the device, including, but not limited to,
  352  an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. The term
  353  includes any component, part, or accessory of the device and
  354  also includes any substance intended to be aerosolized or
  355  vaporized during the use of the device, whether or not the
  356  substance contains nicotine.
  357  
  358  The term does not include drugs, devices, or combination
  359  products authorized for sale by the U.S. Food and Drug
  360  Administration, as those terms are defined in the Federal Food,
  361  Drug, and Cosmetic Act.
  362         (8)(6) “Tobacco products” includes:
  363         (a)Any product containing, made of, or derived from
  364  tobacco or nicotine that is intended for human consumption or is
  365  likely to be consumed, whether inhaled, absorbed, or ingested by
  366  any other means, including, but not limited to, a cigarette, a
  367  cigar, pipe tobacco, chewing tobacco, snuff, or snus;
  368         (b)Any electronic smoking device and any substances that
  369  may be aerosolized or vaporized by such device, whether or not
  370  the substance contains nicotine; or
  371         (c)Any component, part, or accessory of a product
  372  described in paragraph (a) or paragraph (b), whether or not any
  373  of these contain tobacco or nicotine, including, but not limited
  374  to, filters, rolling papers, blunt or hemp wraps, and pipes.
  375  
  376  The term does not include drugs, devices, or combination
  377  products authorized for sale by the U.S. Food and Drug
  378  Administration, as those terms are defined in the Federal Food,
  379  Drug, and Cosmetic Act loose tobacco leaves, and products made
  380  from tobacco leaves, in whole or in part, and cigarette
  381  wrappers, which can be used for smoking, sniffing, or chewing.
  382         (1)(7) “Any person under the age of 21 18” does not include
  383  any person under the age of 21 18 who:
  384         (a)Has had his or her disability of nonage removed under
  385  chapter 743;
  386         (b)Is in the military reserve or on active duty in the
  387  Armed Forces of the United States;
  388         (c)Is otherwise emancipated by a court of competent
  389  jurisdiction and released from parental care and responsibility;
  390  or
  391         (a)(d) Is acting in his or her scope of lawful employment
  392  with an entity licensed under the provisions of chapter 210 or
  393  this chapter; or
  394         (b)Is participating in a compliance check as required by
  395  s. 569.12.
  396         Section 5. Subsection (2) of section 569.003, Florida
  397  Statutes, is amended, and subsection (5) is added to that
  398  section, to read:
  399         569.003 Retail tobacco products dealer permits;
  400  application; qualifications; fees; renewal; duplicates.—
  401         (2)(a) Permits may be issued only to persons who are 21 18
  402  years of age or older or to corporations the officers of which
  403  are 21 18 years of age or older.
  404         (b) The division may refuse to issue a permit to any
  405  person, firm, association, or corporation the permit of which
  406  has been revoked or suspended, to any corporation an officer of
  407  which has had his or her permit revoked or suspended, or to any
  408  person who is or has been an officer of a corporation the permit
  409  of which has been revoked or suspended. Any permit issued to a
  410  firm, association, or corporation prohibited from obtaining a
  411  permit under this section shall be revoked by the division.
  412         (5)An entity that deals only in tobacco products that are
  413  electronic smoking devices; components, parts, or accessories of
  414  such devices; or substances that may be aerosolized or vaporized
  415  by such devices and that holds or is applying for a retail
  416  tobacco product dealer permit is exempt from any fees relating
  417  to the permit.
  418         Section 6. Subsections (1) and (2) of section 569.005,
  419  Florida Statutes, are amended to read:
  420         569.005 Operating without a retail tobacco products dealer
  421  permit; penalty.—
  422         (1) It is unlawful for a person, firm, association, or
  423  corporation to deal, at retail, in tobacco products, in any
  424  manner, or to allow a tobacco products vending machine to be
  425  located on its premises, without having a retail tobacco
  426  products dealer permit as required by s. 569.003. A person who
  427  violates this section is guilty of a noncriminal violation,
  428  punishable by a fine of at least not more than $500.
  429         (2) Any person who violates this section shall be cited for
  430  such infraction and shall be cited to appear before the county
  431  court. The citation may indicate the time, date, and location of
  432  the scheduled hearing and must indicate that the penalty for a
  433  noncriminal violation is a fine of at least not more than $500.
  434         Section 7. Section 569.006, Florida Statutes, is amended to
  435  read:
  436         569.006 Retail tobacco products dealers; administrative
  437  penalties.—The division may suspend or revoke the permit of the
  438  dealer upon sufficient cause appearing of the violation of any
  439  of the provisions of this chapter, by a dealer or by a dealer’s
  440  agent or employee. The division may also assess and accept
  441  administrative fines of up to $1,000 against a dealer for each
  442  violation. The revenues generated from such fines shall be used
  443  to offset the costs of licensing administration, education and
  444  training, retail inspections, and unannounced compliance checks,
  445  and the division shall deposit all fines collected into the
  446  Alcoholic Beverage and Tobacco Trust Fund General Revenue Fund
  447  as collected. An order imposing an administrative fine becomes
  448  effective 15 days after the date of the order. The division may
  449  suspend the imposition of a penalty against a dealer,
  450  conditioned upon the dealer’s compliance with terms the division
  451  considers appropriate.
  452         Section 8. Subsections (1), (2), and (4) of section
  453  569.007, Florida Statutes, are amended to read:
  454         569.007 Sale or delivery of tobacco products;
  455  restrictions.—
  456         (1) In order to prevent persons under 21 18 years of age
  457  from purchasing or receiving tobacco products, the sale or
  458  delivery of tobacco products is prohibited, except:
  459         (a) When under the direct control or line of sight of the
  460  dealer or the dealer’s agent or employee; or
  461         (b) Sales from a vending machine are prohibited under the
  462  provisions of paragraph (1)(a) and are only permissible from a
  463  machine that is located in an establishment that prohibits
  464  persons under 21 years of age on the licensed premises at all
  465  times equipped with an operational lockout device which is under
  466  the control of the dealer or the dealer’s agent or employee who
  467  directly regulates the sale of items through the machine by
  468  triggering the lockout device to allow the dispensing of one
  469  tobacco product. The lockout device must include a mechanism to
  470  prevent the machine from functioning if the power source for the
  471  lockout device fails or if the lockout device is disabled, and a
  472  mechanism to ensure that only one tobacco product is dispensed
  473  at a time.
  474         (2)The provisions of subsection (1) shall not apply to an
  475  establishment that prohibits persons under 18 years of age on
  476  the licensed premises.
  477         (3)(4) A dealer or a dealer’s agent or employee shall may
  478  require proof of age of a purchaser of a tobacco product before
  479  selling the product to that person.
  480         Section 9. Section 569.0075, Florida Statutes, is amended
  481  to read:
  482         569.0075 Gift of sample tobacco products prohibited.—The
  483  gift of sample tobacco products to any person under the age of
  484  21 18 by an entity licensed or permitted under the provisions of
  485  chapter 210 or this chapter, or by an employee of such entity,
  486  is prohibited and is punishable as provided in s. 569.101.
  487         Section 10. Section 569.008, Florida Statutes, is amended
  488  to read:
  489         569.008 Responsible retail tobacco products dealers;
  490  qualifications; mitigation of disciplinary penalties; diligent
  491  management and supervision; presumption.—
  492         (1) The Legislature intends to prevent the sale of tobacco
  493  products to persons under 21 18 years of age and to encourage
  494  retail tobacco products dealers to comply with responsible
  495  practices in accordance with this section.
  496         (2) To qualify as a responsible retail tobacco products
  497  dealer, the dealer must establish and implement procedures
  498  designed to ensure that the dealer’s employees comply with the
  499  provisions of this chapter. The dealer must provide a training
  500  program for the dealer’s employees which addresses the use and
  501  sale of tobacco products and which includes at least the
  502  following topics:
  503         (a) Laws covering the sale of tobacco products.
  504         (b) Methods of recognizing and handling customers under 21
  505  18 years of age.
  506         (c) Procedures for proper examination of identification
  507  cards in order to verify that customers are not under 21 18
  508  years of age.
  509         (d) The use of the age audit identification function on
  510  electronic point-of-sale equipment, where available.
  511         (3) In determining penalties under s. 569.006, the division
  512  may mitigate penalties imposed against a dealer because of an
  513  employee’s illegal sale of a tobacco product to a person under
  514  18 years of age if the following conditions are met:
  515         (a) The dealer is qualified as a responsible dealer under
  516  this section.
  517         (b) The dealer provided the training program required under
  518  subsection (2) to that employee before the illegal sale
  519  occurred.
  520         (c) The dealer had no knowledge of that employee’s
  521  violation at the time of the violation and did not direct,
  522  approve, or participate in the violation.
  523         (d) If the sale was made through a vending machine, the
  524  machine was equipped with an operational lock-out device.
  525         (3)(4) The division shall develop and make available a
  526  model tobacco products training program designed to ensure
  527  adherence to this act by dealers and their employees which, if
  528  followed, will qualify dealers as responsible dealers.
  529         (4)(5) Dealers shall exercise diligence in the management
  530  and supervision of their premises and in the supervision and
  531  training of their employees, agents, or servants. In proceedings
  532  to impose penalties under s. 569.006, proof that employees,
  533  agents, or servants of the dealer, while in the scope of their
  534  employment, committed at least three violations of s. 569.101
  535  during a 36-month 180-day period shall be prima facie evidence
  536  of a lack of due diligence by the dealer in the management and
  537  supervision of his or her premises and in the supervision and
  538  training of employees, agents, officers, or servants.
  539         (5)(6) The division may consider qualification as a
  540  responsible retail tobacco products dealer under this section as
  541  evidence that the dealer properly exercised the diligence
  542  required under this section.
  543         Section 11. Section 569.101, Florida Statutes, is amended
  544  to read:
  545         569.101 Selling, delivering, bartering, furnishing, or
  546  giving tobacco products to persons under 21 18 years of age;
  547  criminal penalties; defense.—
  548         (1) It is unlawful to sell, deliver, barter, furnish, or
  549  give, directly or indirectly, to any person who is under the age
  550  of 21 18 years of age, any tobacco product.
  551         (2) Any dealer person who violates subsection (1):
  552         (a)For a first time shall pay a minimum fine of $500;
  553         (b)For a second time within a 36-month period shall pay a
  554  minimum fine of $750 and may not distribute tobacco products for
  555  a minimum of 7 days;
  556         (c)For a third time within a 36-month period shall pay a
  557  minimum fine of $1,000 and may not distribute tobacco products
  558  for a minimum of 30 days; and
  559         (d)For a fourth and any subsequent violations within a 36
  560  month period shall pay a minimum fine of $1,000 and may not
  561  distribute tobacco products for a period of 3 years.
  562         (3)Any person found to have violated subsection (1) while
  563  acting as a nonmanagement agent or employee of a dealer is
  564  subject to noncriminal and nonmonetary penalties, including, but
  565  not limited to, education classes, diversion programs, and
  566  community service.
  567         (4)Any person 21 years of age or older who is not a dealer
  568  or a dealer’s agent or employee and who violates subsection (1)
  569  shall pay an administrative fine of $50 commits a misdemeanor of
  570  the second degree, punishable as provided in s. 775.082 or s.
  571  775.083. However, any person who violates subsection (1) for a
  572  second or subsequent time within 1 year of the first violation,
  573  commits a misdemeanor of the first degree, punishable as
  574  provided in s. 775.082 or s. 775.083.
  575         (5)(3) A dealer or nonmanagement agent or employee of a
  576  dealer person charged with a violation of subsection (1) has a
  577  complete defense if, at the time the tobacco product was sold,
  578  delivered, bartered, furnished, or given:
  579         (a) The buyer or recipient falsely evidenced that she or he
  580  was 21 18 years of age or older;
  581         (b) The appearance of the buyer or recipient was such that
  582  a prudent person would believe the buyer or recipient to be 21
  583  18 years of age or older; and
  584         (c) Such person carefully checked a driver license or an
  585  identification card issued by this state or another state of the
  586  United States or, a passport, or a United States armed services
  587  identification card presented by the buyer or recipient and
  588  acted in good faith and in reliance upon the representation and
  589  appearance of the buyer or recipient in the belief that the
  590  buyer or recipient was 21 18 years of age or older.
  591         Section 12. Section 569.11, Florida Statutes, is amended to
  592  read:
  593         569.11 Possession, Misrepresenting age or military service
  594  to purchase, and purchase of tobacco products by persons under
  595  21 18 years of age prohibited; penalties; jurisdiction;
  596  disposition of fines.—
  597         (1) It is unlawful for any person under 18 years of age to
  598  knowingly possess any tobacco product. Any person under 18 years
  599  of age who violates this subsection commits a noncriminal
  600  violation as provided in s. 775.08(3), punishable by:
  601         (a) For a first violation, 16 hours of community service
  602  or, instead of community service, a $25 fine. In addition, the
  603  person must attend a school-approved anti-tobacco program, if
  604  locally available; or
  605         (b) For a second or subsequent violation within 12 weeks
  606  after the first violation, a $25 fine.
  607  
  608  Any second or subsequent violation not within the 12-week period
  609  after the first violation is punishable as provided for a first
  610  violation.
  611         (2) It is unlawful for any person under 21 18 years of age
  612  to misrepresent his or her age or military service for the
  613  purpose of inducing a dealer or an agent or employee of the
  614  dealer to sell, give, barter, furnish, or deliver any tobacco
  615  product, or to purchase, or attempt to purchase, any tobacco
  616  product from a person or a vending machine. Any person under 21
  617  18 years of age who violates this subsection commits a
  618  noncriminal violation as provided in s. 775.08(3), punishable
  619  by:
  620         (a) For a first violation, 16 hours of community service
  621  or, instead of community service, a $25 fine and, in addition,
  622  the person must attend a school-approved anti-tobacco program,
  623  if available; or
  624         (b) For a second or subsequent violation within 12 weeks
  625  after the first violation, a $25 fine.
  626  
  627  Any second or subsequent violation not within the 12-week period
  628  after the first violation is punishable as provided for a first
  629  violation.
  630         (3) Any person under 18 years of age cited for committing a
  631  noncriminal violation under this section must sign and accept a
  632  civil citation indicating a promise to appear before the county
  633  court or comply with the requirement for paying the fine and
  634  must attend a school-approved anti-tobacco program, if locally
  635  available. If a fine is assessed for a violation of this
  636  section, the fine must be paid within 30 days after the date of
  637  the citation or, if a court appearance is mandatory, within 30
  638  days after the date of the hearing.
  639         (4) A person charged with a noncriminal violation under
  640  this section must appear before the county court or comply with
  641  the requirement for paying the fine. The court, after a hearing,
  642  shall make a determination as to whether the noncriminal
  643  violation was committed. If the court finds the violation was
  644  committed, it shall impose an appropriate penalty as specified
  645  in subsection (1) or subsection (2). A person who participates
  646  in community service shall be considered an employee of the
  647  state for the purpose of chapter 440, for the duration of such
  648  service.
  649         (5)(a) If a person under 18 years of age is found by the
  650  court to have committed a noncriminal violation under this
  651  section and that person has failed to complete community
  652  service, pay the fine as required by paragraph (1)(a) or
  653  paragraph (2)(a), or attend a school-approved anti-tobacco
  654  program, if locally available, the court may direct the
  655  Department of Highway Safety and Motor Vehicles to withhold
  656  issuance of or suspend the driver license or driving privilege
  657  of that person for a period of 30 consecutive days.
  658         (b) If a person under 18 years of age is found by the court
  659  to have committed a noncriminal violation under this section and
  660  that person has failed to pay the applicable fine as required by
  661  paragraph (1)(b) or paragraph (2)(b), the court may direct the
  662  Department of Highway Safety and Motor Vehicles to withhold
  663  issuance of or suspend the driver license or driving privilege
  664  of that person for a period of 45 consecutive days.
  665         (2)(6) Eighty percent of all civil penalties received by a
  666  county court pursuant to this section shall be remitted by the
  667  clerk of the court to the Department of Revenue for transfer to
  668  the Department of Education to provide for teacher training and
  669  for research and evaluation to reduce and prevent the use of
  670  tobacco products by children. The remaining 20 percent of civil
  671  penalties received by a county court pursuant to this section
  672  shall remain with the clerk of the county court to cover
  673  administrative costs.
  674         Section 13. Section 569.12, Florida Statutes, is amended to
  675  read:
  676         569.12 Jurisdiction; tobacco product enforcement officers
  677  or agents; enforcement; compliance checks.—
  678         (1) In addition to the Division of Alcoholic Beverages and
  679  Tobacco of the Department of Business and Professional
  680  Regulation, any law enforcement officer certified under s.
  681  943.10(1), (6), or (8) shall enforce the provisions of this
  682  chapter.
  683         (2)(a) A county or municipality may designate certain of
  684  its employees or agents as tobacco product enforcement officers.
  685  The training and qualifications of the employees or agents for
  686  such designation shall be determined by the county or the
  687  municipality. Nothing in this section shall be construed to
  688  permit the carrying of firearms or other weapons by a tobacco
  689  product enforcement agent, nor does designation as a tobacco
  690  product enforcement officer provide the employee or agent with
  691  the power of arrest or subject the employee or agent to the
  692  provisions of ss. 943.085-943.255. Nothing in this section
  693  amends, alters, or contravenes the provisions of any state
  694  administered retirement system or any state-supported retirement
  695  system established by general law.
  696         (b)A tobacco product enforcement officer is authorized to
  697  issue a citation to a person under the age of 18 when, based
  698  upon personal investigation, the officer has reasonable cause to
  699  believe that the person has committed a civil infraction in
  700  violation of s. 386.212 or s. 569.11.
  701         (3) A correctional probation officer as defined in s.
  702  943.10(3) is authorized to issue a citation to a person under
  703  the age of 18 when, based upon personal investigation, the
  704  officer has reasonable cause to believe that the person has
  705  committed a civil infraction in violation of s. 569.11.
  706         (4) A citation issued to any person violating the
  707  provisions of s. 569.11 shall be in a form prescribed by the
  708  Division of Alcoholic Beverages and Tobacco of the Department of
  709  Business and Professional Regulation and shall contain:
  710         (a) The date and time of issuance.
  711         (b) The name and address of the person to whom the citation
  712  is issued.
  713         (c) The date and time the civil infraction was committed.
  714         (d) The facts constituting reasonable cause.
  715         (e) The number of the Florida statute violated.
  716         (f) The name and authority of the citing officer.
  717         (g) The procedure for the person to follow in order to
  718  contest the citation, perform the required community service,
  719  attend the required anti-tobacco program, or to pay the civil
  720  penalty.
  721         (4)Each dealer shall be subject to at least two
  722  unannounced compliance checks per year. The division or its
  723  authorized designee shall conduct compliance checks by engaging
  724  persons between the ages of 18 and 20 to enter the tobacco
  725  retail establishment to attempt to purchase tobacco products.
  726  Unannounced follow-up compliance checks of all noncompliant
  727  dealers are required within 3 months of any violation of this
  728  chapter.
  729         Section 14. Section 569.14, Florida Statutes, is amended to
  730  read:
  731         569.14 Posting of a sign stating that the sale of tobacco
  732  products to persons under 21 18 years of age is unlawful;
  733  enforcement; penalty.—
  734         (1) A dealer that sells tobacco products shall post a clear
  735  and conspicuous sign in each place of business where such
  736  products are sold which substantially states the following:
  737  
  738         THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
  739         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  740         REQUIRED FOR SALE PURCHASE.
  741  
  742         (2) A dealer that sells tobacco products and nicotine
  743  products or nicotine dispensing devices, as defined in s.
  744  877.112, may use a sign that substantially states the following:
  745  
  746         THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
  747         NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
  748         OF 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED
  749         FOR PURCHASE.
  750  
  751  A dealer that uses a sign as described in this subsection meets
  752  the signage requirements of subsection (1) and s. 877.112.
  753         (3) The division shall make available to dealers of tobacco
  754  products signs that meet the requirements of subsection (1) or
  755  subsection (2).
  756         (3)(4) Any dealer that sells tobacco products shall provide
  757  at the checkout counter in a location clearly visible to the
  758  dealer or the dealer’s agent or employee instructional material
  759  in a calendar format or similar format to assist in determining
  760  whether a person is of legal age to purchase tobacco products.
  761  This point of sale material must contain substantially the
  762  following language:
  763  
  764                IF YOU WERE NOT BORN BEFORE THIS DATE              
  765                  (insert date and applicable year)                
  766              YOU CANNOT BE SOLD BUY TOBACCO PRODUCTS.             
  767  
  768  Upon approval by the division, in lieu of a calendar a dealer
  769  may use card readers, scanners, or other electronic or automated
  770  systems that can verify whether a person is of legal age to
  771  purchase tobacco products. Failure to comply with the provisions
  772  contained in this subsection shall result in imposition of
  773  administrative penalties as provided in s. 569.006.
  774         (4)(5) The division, through its agents and inspectors,
  775  shall enforce this section.
  776         (5)(6) Any person who fails to comply with subsection (1)
  777  is guilty of a misdemeanor of the second degree, punishable as
  778  provided in s. 775.082 or s. 775.083.
  779         Section 15. Subsections (3) and (4) of section 569.19,
  780  Florida Statutes, are amended to read:
  781         569.19 Annual report.—The division shall report annually
  782  with written findings to the Legislature and the Governor by
  783  December 31, on the progress of implementing the enforcement
  784  provisions of this chapter. This must include, but is not
  785  limited to:
  786         (3) The number of violations for selling tobacco products
  787  to persons under age 21 18, and the results of administrative
  788  hearings on the above and related issues.
  789         (4) The number of persons under age 21 18 cited for
  790  violations of s. 569.11 and sanctions imposed as a result of
  791  citation.
  792         Section 16. Section 877.112, Florida Statutes, is repealed.
  793         Section 17. This act shall take effect October 1, 2020.