Florida Senate - 2020                       CS for CS for SB 810
       
       
        
       By the Committees on Innovation, Industry, and Technology; and
       Health Policy; and Senators Simmons and Flores
       
       
       
       
       580-03009-20                                           2020810c2
    1                        A bill to be entitled                      
    2         An act relating to tobacco and nicotine products;
    3         amending s. 210.15, F.S.; revising the age limits for
    4         permits relating to cigarettes; amending s. 386.212,
    5         F.S.; revising age and time restrictions relating to
    6         the prohibition of smoking and vaping near school
    7         property; amending s. 569.002, F.S.; revising the
    8         definition of the term “tobacco products”; deleting
    9         the term “any person under the age of 18”; amending s.
   10         569.003, F.S.; revising the age limits for retail
   11         tobacco products dealer permits; amending s. 569.007,
   12         F.S.; revising prohibitions on the sale of tobacco
   13         products from vending machines; conforming provisions
   14         to federal law; amending s. 569.101, F.S.; requiring
   15         that the age of persons purchasing tobacco products be
   16         verified under certain circumstances; repealing s.
   17         877.112, F.S., relating to nicotine products and
   18         nicotine dispensing devices; amending s. 210.095,
   19         F.S.; conforming provisions to federal law; making
   20         technical changes; amending ss. 569.0075, 569.008,
   21         569.11, 569.12, 569.14, and 569.19, F.S.; conforming
   22         provisions to federal law; conforming provisions to
   23         changes made by the act; providing a contingent
   24         effective date.
   25          
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Paragraph (b) of subsection (1) of section
   29  210.15, Florida Statutes, is amended to read:
   30         210.15 Permits.—
   31         (1)
   32         (b) Permits shall be issued only to persons of good moral
   33  character, who are not less than 21 18 years of age. Permits to
   34  corporations shall be issued only to corporations whose officers
   35  are of good moral character and not less than 21 18 years of
   36  age. There shall be no exemptions from the permit fees herein
   37  provided to any persons, association of persons, or corporation,
   38  any law to the contrary notwithstanding.
   39         Section 2. Subsection (1) of section 386.212, Florida
   40  Statutes, is amended to read:
   41         386.212 Smoking and vaping prohibited near school property;
   42  penalty.—
   43         (1) It is unlawful for any person under 21 18 years of age
   44  to smoke tobacco or vape in, on, or within 1,000 feet of the
   45  real property comprising a public or private elementary, middle,
   46  or secondary school between the hours of 6 a.m. and midnight.
   47  This section does not apply to any person occupying a moving
   48  vehicle or within a private residence.
   49         Section 3. Subsections (6) and (7) of section 569.002,
   50  Florida Statutes, are amended to read:
   51         569.002 Definitions.—As used in this chapter, the term:
   52         (6) “Tobacco products” includes:
   53         (a)Any product containing, made of, or derived from
   54  tobacco or nicotine that is intended for human consumption or is
   55  likely to be consumed, whether inhaled, absorbed, or ingested by
   56  any other means, including, but not limited to, a cigarette, a
   57  cigar, pipe tobacco, chewing tobacco, snuff, or snus; or
   58         (b)Any component, part, or accessory of a product
   59  described in paragraph (a), whether or not any of these contain
   60  tobacco or nicotine, including, but not limited to, filters,
   61  rolling papers, blunt or hemp wraps, and pipes.
   62  
   63  The term does not include drugs, devices, or combination
   64  products authorized for sale by the United States Food and Drug
   65  Administration, as those terms are defined in the Federal Food,
   66  Drug, and Cosmetic Act loose tobacco leaves, and products made
   67  from tobacco leaves, in whole or in part, and cigarette
   68  wrappers, which can be used for smoking, sniffing, or chewing.
   69         (7)“Any person under the age of 18” does not include any
   70  person under the age of 18 who:
   71         (a) Has had his or her disability of nonage removed under
   72  chapter 743;
   73         (b) Is in the military reserve or on active duty in the
   74  Armed Forces of the United States;
   75         (c) Is otherwise emancipated by a court of competent
   76  jurisdiction and released from parental care and responsibility;
   77  or
   78         (d) Is acting in his or her scope of lawful employment with
   79  an entity licensed under the provisions of chapter 210 or this
   80  chapter.
   81         Section 4. Paragraph (a) of subsection (2) of section
   82  569.003, Florida Statutes, is amended to read:
   83         569.003 Retail tobacco products dealer permits;
   84  application; qualifications; fees; renewal; duplicates.—
   85         (2)(a) Permits may be issued only to persons who are 21 18
   86  years of age or older or to corporations the officers of which
   87  are 21 18 years of age or older.
   88         Section 5. Subsections (1) and (2) of section 569.007,
   89  Florida Statutes, are amended to read:
   90         569.007 Sale or delivery of tobacco products;
   91  restrictions.—
   92         (1) In order to prevent persons under 21 18 years of age
   93  from purchasing or receiving tobacco products, the sale or
   94  delivery of tobacco products is prohibited, except:
   95         (a) When under the direct control or line of sight of the
   96  dealer or the dealer’s agent or employee; or
   97         (b) Sales from a vending machine are prohibited under the
   98  provisions of paragraph (1)(a) and are only permissible from a
   99  machine that is located in an establishment that prohibits
  100  persons under 21 years of age on the licensed premises at all
  101  times equipped with an operational lockout device which is under
  102  the control of the dealer or the dealer’s agent or employee who
  103  directly regulates the sale of items through the machine by
  104  triggering the lockout device to allow the dispensing of one
  105  tobacco product. The lockout device must include a mechanism to
  106  prevent the machine from functioning if the power source for the
  107  lockout device fails or if the lockout device is disabled, and a
  108  mechanism to ensure that only one tobacco product is dispensed
  109  at a time.
  110         (2)The provisions of subsection (1) shall not apply to an
  111  establishment that prohibits persons under 18 years of age on
  112  the licensed premises.
  113         Section 6. Section 569.101, Florida Statutes, is amended to
  114  read:
  115         569.101 Selling, delivering, bartering, furnishing, or
  116  giving tobacco products to persons under 21 18 years of age;
  117  criminal penalties; defense.—
  118         (1) It is unlawful to sell, deliver, barter, furnish, or
  119  give, directly or indirectly, to any person who is under 21 18
  120  years of age, any tobacco product.
  121         (2) Any person who violates subsection (1) commits a
  122  misdemeanor of the second degree, punishable as provided in s.
  123  775.082 or s. 775.083. However, any person who violates
  124  subsection (1) for a second or subsequent time within 1 year of
  125  the first violation, commits a misdemeanor of the first degree,
  126  punishable as provided in s. 775.082 or s. 775.083.
  127         (3) A person charged with a violation of subsection (1) has
  128  a complete defense if, at the time the tobacco product was sold,
  129  delivered, bartered, furnished, or given:
  130         (a) The buyer or recipient falsely evidenced that she or he
  131  was 21 18 years of age or older;
  132         (b) The appearance of the buyer or recipient was such that
  133  a prudent person would believe the buyer or recipient to be 21
  134  18 years of age or older; and
  135         (c) Such person carefully checked a driver license or an
  136  identification card issued by this state or another state of the
  137  United States, a passport, or a United States armed services
  138  identification card presented by the buyer or recipient and
  139  acted in good faith and in reliance upon the representation and
  140  appearance of the buyer or recipient in the belief that the
  141  buyer or recipient was 21 18 years of age or older.
  142         (4) A person must verify by means of identification
  143  specified in paragraph (3)(c) that a person purchasing a tobacco
  144  product is not under 21 years of age. Such verification is not
  145  required for any person over the age of 29.
  146         Section 7. Section 877.112, Florida Statutes, is repealed.
  147         Section 8. Paragraphs (a) and (b) of subsection (5) and
  148  paragraphs (e) and (g) of subsection (8) of section 210.095,
  149  Florida Statutes, are amended to read:
  150         210.095 Mail order, Internet, and remote sales of tobacco
  151  products; age verification.—
  152         (5) Each person who mails, ships, or otherwise delivers
  153  tobacco products in connection with an order for a delivery sale
  154  must:
  155         (a) Include as part of the shipping documents, in a clear
  156  and conspicuous manner, the following statement: “Tobacco
  157  Products: Florida law prohibits shipping to individuals under 21
  158  18 years of age and requires the payment of all applicable
  159  taxes.”
  160         (b) Use a method of mailing, shipping, or delivery which
  161  obligates the delivery service to require:
  162         1. The individual submitting the order for the delivery
  163  sale or another adult who resides at the individual’s address to
  164  sign his or her name to accept delivery of the shipping
  165  container. Proof of the legal minimum purchase age of the
  166  individual accepting delivery is required only if the individual
  167  appears to be under 30 27 years of age.
  168         2. Proof that the individual is either the addressee or the
  169  adult designated by the addressee, in the form of a valid,
  170  government-issued identification card bearing a photograph of
  171  the individual who signs to accept delivery of the shipping
  172  container.
  173  
  174  If the person accepting a purchase order for a delivery sale
  175  delivers the tobacco products without using a delivery service,
  176  the person must comply with all of the requirements of this
  177  section which apply to a delivery service. Any failure to comply
  178  with a requirement of this section constitutes a violation
  179  thereof.
  180         (8)
  181         (e) A person who, in connection with a delivery sale,
  182  delivers tobacco products on behalf of a delivery service to an
  183  individual who is not an adult commits a misdemeanor of the
  184  second third degree, punishable as provided in s. 775.082 or s.
  185  775.083.
  186         (g) An individual who is not an adult and who knowingly
  187  violates any provision of this section commits a misdemeanor of
  188  the second third degree, punishable as provided in s. 775.082 or
  189  s. 775.083.
  190         Section 9. Section 569.0075, Florida Statutes, is amended
  191  to read:
  192         569.0075 Gift of sample tobacco products prohibited.—The
  193  gift of sample tobacco products to any person under the age of
  194  21 18 by an entity licensed or permitted under the provisions of
  195  chapter 210 or this chapter, or by an employee of such entity,
  196  is prohibited and is punishable as provided in s. 569.101.
  197         Section 10. Subsection (1), paragraphs (b) and (c) of
  198  subsection (2), and subsection (3) of section 569.008, Florida
  199  Statutes, are amended to read:
  200         569.008 Responsible retail tobacco products dealers;
  201  qualifications; mitigation of disciplinary penalties; diligent
  202  management and supervision; presumption.—
  203         (1) The Legislature intends to prevent the sale of tobacco
  204  products to persons under 21 18 years of age and to encourage
  205  retail tobacco products dealers to comply with responsible
  206  practices in accordance with this section.
  207         (2) To qualify as a responsible retail tobacco products
  208  dealer, the dealer must establish and implement procedures
  209  designed to ensure that the dealer’s employees comply with the
  210  provisions of this chapter. The dealer must provide a training
  211  program for the dealer’s employees which addresses the use and
  212  sale of tobacco products and which includes at least the
  213  following topics:
  214         (b) Methods of recognizing and handling customers under 21
  215  18 years of age.
  216         (c) Procedures for proper examination of identification
  217  cards in order to verify that customers are not under 21 18
  218  years of age.
  219         (3) In determining penalties under s. 569.006, the division
  220  may mitigate penalties imposed against a dealer because of an
  221  employee’s illegal sale of a tobacco product to a person under
  222  21 18 years of age if the following conditions are met:
  223         (a) The dealer is qualified as a responsible dealer under
  224  this section.
  225         (b) The dealer provided the training program required under
  226  subsection (2) to that employee before the illegal sale
  227  occurred.
  228         (c) The dealer had no knowledge of that employee’s
  229  violation at the time of the violation and did not direct,
  230  approve, or participate in the violation.
  231         (d) If the sale was made through a vending machine, the
  232  machine was equipped with an operational lock-out device.
  233         Section 11. Section 569.11, Florida Statutes, is amended to
  234  read:
  235         569.11 Possession, misrepresenting age or military service
  236  to purchase, and purchase of tobacco products by persons under
  237  21 18 years of age prohibited; penalties; jurisdiction;
  238  disposition of fines.—
  239         (1) It is unlawful for any person under 21 18 years of age
  240  to knowingly possess any tobacco product. Any person under 21 18
  241  years of age who violates this subsection commits a noncriminal
  242  violation as provided in s. 775.08(3), punishable by:
  243         (a) For a first violation, 16 hours of community service
  244  or, instead of community service, a $25 fine. In addition, the
  245  person must attend a school-approved anti-tobacco program, if
  246  locally available; or
  247         (b) For a second or subsequent violation within 12 weeks
  248  after the first violation, a $25 fine.
  249  
  250  Any second or subsequent violation not within the 12-week period
  251  after the first violation is punishable as provided for a first
  252  violation.
  253         (2) It is unlawful for any person under 21 18 years of age
  254  to misrepresent his or her age or military service for the
  255  purpose of inducing a dealer or an agent or employee of the
  256  dealer to sell, give, barter, furnish, or deliver any tobacco
  257  product, or to purchase, or attempt to purchase, any tobacco
  258  product from a person or a vending machine. Any person under 21
  259  18 years of age who violates this subsection commits a
  260  noncriminal violation as provided in s. 775.08(3), punishable
  261  by:
  262         (a) For a first violation, 16 hours of community service
  263  or, instead of community service, a $25 fine and, in addition,
  264  the person must attend a school-approved anti-tobacco program,
  265  if available; or
  266         (b) For a second or subsequent violation within 12 weeks
  267  after the first violation, a $25 fine.
  268  
  269  Any second or subsequent violation not within the 12-week period
  270  after the first violation is punishable as provided for a first
  271  violation.
  272         (3) Any person under 21 18 years of age cited for
  273  committing a noncriminal violation under this section must sign
  274  and accept a civil citation indicating a promise to appear
  275  before the county court or comply with the requirement for
  276  paying the fine and must attend a school-approved anti-tobacco
  277  program, if locally available. If a fine is assessed for a
  278  violation of this section, the fine must be paid within 30 days
  279  after the date of the citation or, if a court appearance is
  280  mandatory, within 30 days after the date of the hearing.
  281         (4) A person charged with a noncriminal violation under
  282  this section must appear before the county court or comply with
  283  the requirement for paying the fine. The court, after a hearing,
  284  shall make a determination as to whether the noncriminal
  285  violation was committed. If the court finds the violation was
  286  committed, it shall impose an appropriate penalty as specified
  287  in subsection (1) or subsection (2). A person who participates
  288  in community service shall be considered an employee of the
  289  state for the purpose of chapter 440, for the duration of such
  290  service.
  291         (5)(a) If a person under 21 18 years of age is found by the
  292  court to have committed a noncriminal violation under this
  293  section and that person has failed to complete community
  294  service, pay the fine as required by paragraph (1)(a) or
  295  paragraph (2)(a), or attend a school-approved anti-tobacco
  296  program, if locally available, the court may direct the
  297  Department of Highway Safety and Motor Vehicles to withhold
  298  issuance of or suspend the driver license or driving privilege
  299  of that person for a period of 30 consecutive days.
  300         (b) If a person under 21 18 years of age is found by the
  301  court to have committed a noncriminal violation under this
  302  section and that person has failed to pay the applicable fine as
  303  required by paragraph (1)(b) or paragraph (2)(b), the court may
  304  direct the Department of Highway Safety and Motor Vehicles to
  305  withhold issuance of or suspend the driver license or driving
  306  privilege of that person for a period of 45 consecutive days.
  307         (6) Eighty percent of all civil penalties received by a
  308  county court pursuant to this section shall be remitted by the
  309  clerk of the court to the Department of Revenue for transfer to
  310  the Department of Education to provide for teacher training and
  311  for research and evaluation to reduce and prevent the use of
  312  tobacco products by children. The remaining 20 percent of civil
  313  penalties received by a county court pursuant to this section
  314  shall remain with the clerk of the county court to cover
  315  administrative costs.
  316         Section 12. Paragraph (b) of subsection (2) and subsection
  317  (3) of section 569.12, Florida Statutes, are amended to read:
  318         569.12 Jurisdiction; tobacco product enforcement officers
  319  or agents; enforcement.—
  320         (2)
  321         (b) A tobacco product enforcement officer is authorized to
  322  issue a citation to a person under the age of 21 18 when, based
  323  upon personal investigation, the officer has reasonable cause to
  324  believe that the person has committed a civil infraction in
  325  violation of s. 386.212 or s. 569.11.
  326         (3) A correctional probation officer as defined in s.
  327  943.10(3) is authorized to issue a citation to a person under
  328  the age of 21 18 when, based upon personal investigation, the
  329  officer has reasonable cause to believe that the person has
  330  committed a civil infraction in violation of s. 569.11.
  331         Section 13. Section 569.14, Florida Statutes, is amended to
  332  read:
  333         569.14 Posting of a sign stating that the sale of tobacco
  334  products to persons under 21 18 years of age is unlawful;
  335  enforcement; penalty.—
  336         (1) A dealer that sells tobacco products shall post a clear
  337  and conspicuous sign in each place of business where such
  338  products are sold which substantially states the following:
  339  
  340         THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE
  341         OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
  342         REQUIRED FOR PURCHASE.
  343  
  344         (2) A dealer that sells tobacco products and nicotine
  345  products or nicotine dispensing devices, as defined in s.
  346  877.112, may use a sign that substantially states the following:
  347  
  348         THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
  349         NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
  350         OF 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED
  351         FOR PURCHASE.
  352  
  353  A dealer that uses a sign as described in this subsection meets
  354  the signage requirements of subsection (1) and s. 877.112.
  355         (3) The division shall make available to dealers of tobacco
  356  products signs that meet the requirements of subsection (1) or
  357  subsection (2).
  358         (3)(4) Any dealer that sells tobacco products shall provide
  359  at the checkout counter in a location clearly visible to the
  360  dealer or the dealer’s agent or employee instructional material
  361  in a calendar format or similar format to assist in determining
  362  whether a person is of legal age to purchase tobacco products.
  363  This point of sale material must contain substantially the
  364  following language:
  365  
  366                IF YOU WERE NOT BORN BEFORE THIS DATE              
  367                  (insert date and applicable year)                
  368                  YOU CANNOT BUY TOBACCO PRODUCTS.                 
  369  
  370  Upon approval by the division, in lieu of a calendar a dealer
  371  may use card readers, scanners, or other electronic or automated
  372  systems that can verify whether a person is of legal age to
  373  purchase tobacco products. Failure to comply with the provisions
  374  contained in this subsection shall result in imposition of
  375  administrative penalties as provided in s. 569.006.
  376         (4)(5) The division, through its agents and inspectors,
  377  shall enforce this section.
  378         (5)(6) Any person who fails to comply with subsection (1)
  379  is guilty of a misdemeanor of the second degree, punishable as
  380  provided in s. 775.082 or s. 775.083.
  381         Section 14. Subsections (3) and (4) of section 569.19,
  382  Florida Statutes, are amended to read:
  383         569.19 Annual report.—The division shall report annually
  384  with written findings to the Legislature and the Governor by
  385  December 31, on the progress of implementing the enforcement
  386  provisions of this chapter. This must include, but is not
  387  limited to:
  388         (3) The number of violations for selling tobacco products
  389  to persons under age 21 18, and the results of administrative
  390  hearings on the above and related issues.
  391         (4) The number of persons under age 21 18 cited for
  392  violations of s. 569.11 and sanctions imposed as a result of
  393  citation.
  394         Section 15. This act shall take effect October 1, 2020, if
  395  SB 1394 or similar legislation is adopted in the same
  396  legislative session or an extension thereof and becomes a law.