Bill Text: FL S0810 | 2020 | Regular Session | Engrossed
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Use of Tobacco Products and Nicotine Products
Spectrum: Bipartisan Bill
Status: (Vetoed) 2020-09-08 - Vetoed by Governor [S0810 Detail]
Download: Florida-2020-S0810-Engrossed.html
Bill Title: Use of Tobacco Products and Nicotine Products
Spectrum: Bipartisan Bill
Status: (Vetoed) 2020-09-08 - Vetoed by Governor [S0810 Detail]
Download: Florida-2020-S0810-Engrossed.html
CS for CS for CS for SB 810 First Engrossed 2020810e1 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; revising civil penalties; amending s. 8 569.002, F.S.; defining the term “liquid nicotine 9 product”; revising the definition of the term “tobacco 10 products”; defining the terms “vapor-generating 11 electronic device” and “nicotine product”; deleting 12 the term “any person under the age of 18”; amending s. 13 569.003, F.S.; specifying that fees for a retail 14 tobacco products dealer permit only apply to retailers 15 dealing in certain tobacco products; revising the age 16 limits for retail tobacco products dealer permits; 17 amending s. 569.007, F.S.; revising prohibitions on 18 the sale of tobacco products from vending machines; 19 providing requirements for the delivery of vapor 20 generating electronic devices and liquid nicotine 21 products; conforming provisions to federal law; 22 prohibiting a person from selling, delivering, 23 bartering, furnishing, or giving flavored liquid 24 nicotine products to any other person; defining the 25 term “flavored liquid nicotine product”; providing 26 applicability; amending s. 569.101, F.S.; requiring 27 that the age of persons purchasing tobacco products be 28 verified under certain circumstances; amending s. 29 569.11, F.S.; revising civil penalties; conforming 30 provisions to federal law; conforming provisions to 31 changes made by the act; repealing s. 877.112, F.S., 32 relating to nicotine products and nicotine dispensing 33 devices; amending s. 210.095, F.S.; conforming 34 provisions to federal law; making technical changes; 35 amending ss. 569.0075, 569.008, 569.12, 569.14, and 36 569.19, F.S.; conforming provisions to federal law; 37 conforming provisions to changes made by the act; 38 providing an effective date. 39 40 Be It Enacted by the Legislature of the State of Florida: 41 42 Section 1. Paragraph (b) of subsection (1) of section 43 210.15, Florida Statutes, is amended to read: 44 210.15 Permits.— 45 (1) 46 (b) Permits shall be issued only to persons of good moral 47 character, who are not less than 2118years of age. Permits to 48 corporations shall be issued only to corporations whose officers 49 are of good moral character and not less than 2118years of 50 age. There shall be no exemptions from the permit fees herein 51 provided to any persons, association of persons, or corporation, 52 any law to the contrary notwithstanding. 53 Section 2. Subsections (1) and (3) of section 386.212, 54 Florida Statutes, are amended to read: 55 386.212 Smoking and vaping prohibited near school property; 56 penalty.— 57 (1) It is unlawful for any person under 2118years of age 58 to smoke tobacco or vape in, on, or within 1,000 feet of the 59 real property comprising a public or private elementary, middle, 60 or secondary schoolbetween the hours of 6 a.m. and midnight. 61 This section does not apply to any person occupying a moving 62 vehicle or within a private residence. 63 (3) Any person issued a citation pursuant to this section 64 shall be deemed to be charged with a civil infraction punishable 65 by a maximum civil penalty not to exceed $25, or 50 hours of 66 community service and, for persons under 18 years of ageor,67where available, successful completion of a school-approved 68 anti-tobacco or anti-vaping “alternative to suspension” program. 69 Section 3. Present subsections (3) through (6) of section 70 569.002, Florida Statutes, are redesignated as subsections (4) 71 through (7), respectively, a new subsection (3) is added to that 72 section, and present subsections (6) and (7) of section 569.002, 73 Florida Statutes, are amended to read: 74 569.002 Definitions.—As used in this chapter, the term: 75 (3) “Liquid nicotine product” means a tobacco product in 76 liquid form composed of nicotine and other chemicals or 77 substances which is sold or offered for sale for use with a 78 vapor-generating electronic device. 79 (7)(6)“Tobacco products” includes: 80 (a) Loose tobacco leaves, and products made from tobacco 81 leaves, in whole or in part, and cigarette wrappers, which can 82 be used for smoking, sniffing, or chewing; and 83 (b) Any nicotine product or vapor-generating electronic 84 device. 85 1. For the purposes of this paragraph, the term: 86 a. “Vapor-generating electronic device” means any product 87 that employs an electronic, chemical, or mechanical means 88 capable of producing vapor or aerosol from a nicotine product or 89 any other substance, including, but not limited to, an 90 electronic cigarette, electronic cigar, electronic cigarillo, 91 electronic pipe, or other similar device or product; any 92 replacement cartridge for such device; and any other container 93 of nicotine in a solution or other substance form intended to be 94 used with or within an electronic cigarette, an electronic 95 cigar, an electronic cigarillo, an electronic pipe, a vape pen, 96 an electronic hookah, or other similar device or product. The 97 term includes any component, part, or accessory of the device 98 and also includes any substance intended to be aerosolized or 99 vaporized during the use of the device, whether or not the 100 substance contains nicotine. 101 b. “Nicotine product” means any product that contains 102 nicotine, including liquid nicotine, which is intended for human 103 consumption, whether inhaled, chewed, absorbed, dissolved, or 104 ingested by any means. The term includes vapor-generating 105 electronic devices. 106 2. The terms “vapor-generating electronic device” and 107 “nicotine product” do not include: 108 a. Tobacco products described in paragraph (a); or 109 b. Products regulated as a drug or device by the United 110 States Food and Drug Administration under Chapter V of the 111 Federal Food, Drug, and Cosmetic Act. 112(7) “Any person under the age of 18” does not include any113person under the age of 18 who:114(a) Has had his or her disability of nonage removed under115chapter 743;116(b) Is in the military reserve or on active duty in the117Armed Forces of the United States;118(c) Is otherwise emancipated by a court of competent119jurisdiction and released from parental care and responsibility;120or121(d) Is acting in his or her scope of lawful employment with122an entity licensed under the provisions of chapter 210 or this123chapter.124 Section 4. Paragraphs (b) and (c) of subsection (1) and 125 paragraph (a) of subsection (2) of section 569.003, Florida 126 Statutes, are amended to read: 127 569.003 Retail tobacco products dealer permits; 128 application; qualifications; fees; renewal; duplicates.— 129 (1) 130 (b) Application for a permit must be made on a form 131 furnished by the division and must set forth the name under 132 which the applicant transacts or intends to transact business, 133 the address of the location of the applicant’s place of business 134 within the state, and any other information the division 135 requires. If the applicant has or intends to have more than one 136 place of business dealing in tobacco products within this state, 137 a separate application must be made for each place of business. 138 If the applicant is a firm or an association, the application 139 must set forth the names and addresses of the persons 140 constituting the firm or association; if the applicant is a 141 corporation, the application must set forth the names and 142 addresses of the principal officers of the corporation. The 143 application must also set forth any other information prescribed 144 by the division for the purpose of identifying the applicant 145 firm, association, or corporation. The application must be 146 signed and verified by oath or affirmation by the owner, if a 147 sole proprietor, or, if the owner is a firm, association, or 148 partnership, by the members or partners thereof, or, if the 149 owner is a corporation, by an executive officer of the 150 corporation or by any person authorized by the corporation to 151 sign the application, together with the written evidence of this 152 authority. The application for a permit to deal, at retail, in 153 tobacco products described in s. 569.002(7)(a) must be 154 accompanied by the annual permit fee prescribed by the division. 155 (c) Permits shall be issued annually, upon payment of the156annual permit fee prescribed by the division. The division shall 157 fix the fee for a permit to deal, at retail, in tobacco products 158 described in s. 569.002(7)(a), in an amount sufficient to meet 159 the costs incurred by it in carrying out its permitting, 160 enforcement, and administrative responsibilities under this 161 chapter, but the fee may not exceed $50. The proceeds of the fee 162 shall be deposited into the Alcoholic Beverage and Tobacco Trust 163 Fund. 164 (2)(a) Permits may be issued only to persons who are 2118165 years of age or older or to corporations the officers of which 166 are 2118years of age or older. 167 Section 5. Subsections (1) and (2) of section 569.007, 168 Florida Statutes, are amended, and a new subsection (5) is added 169 to that section, to read: 170 569.007 Sale or delivery of tobacco products; 171 restrictions.— 172 (1)(a) In order to prevent persons under 2118years of age 173 from purchasing or receiving tobacco products, the sale or 174 delivery of tobacco products is prohibited, except: 175 1.(a)When under the direct control or line of sight of the 176 dealer or the dealer’s agent or employee; or 177 2.(b)Sales from a vending machine are prohibited under 178 subparagraph 1.the provisions of paragraph (1)(a)and are only 179 permissible from a machine that is located in an establishment 180 that prohibits persons under 21 years of age on the licensed 181 premises at all times. 182 (b) Sales of vapor-generating electronic devices and liquid 183 nicotine products, other than as authorized under subparagraph 184 (a)1., are permissible only if a dealer implements an age 185 verification procedure that: 186 1. Before accepting an order for delivery, verifies that 187 the purchaser is at least 21 years of age using a commercially 188 available database, or an aggregate of databases, which is 189 regularly used for the purpose of age and identity verification; 190 and 191 2. Employs a second-step age verification to secure 192 delivery for every order by requiring the signature of the 193 purchaser upon delivery and verifying that the credit card or 194 debit card used for the purchase has been issued in the 195 purchaser’s name and that the delivery address is associated 196 with the purchaser’s credit card or debit cardequipped with an197operational lockout device which is under the control of the198dealer or the dealer’s agent or employee who directly regulates199the sale of items through the machine by triggering the lockout200device to allow the dispensing of one tobacco product. The201lockout device must include a mechanism to prevent the machine202from functioning if the power source for the lockout device203fails or if the lockout device is disabled, and a mechanism to204ensure that only one tobacco product is dispensed at a time.205(2)The provisions of subsection (1) shall not apply to an206establishment that prohibits persons under 18 years of age on207the licensed premises. 208 (5)(a) A person may not sell, deliver, barter, furnish, or 209 give, directly or indirectly, flavored liquid nicotine products 210 to any other person. For the purposes of this subsection, the 211 term “flavored liquid nicotine product” means a liquid nicotine 212 product containing a natural or artificial constituent or 213 additive that causes the liquid or its vapor to have a 214 distinguishable taste or aroma other than tobacco or menthol, 215 including, but not limited to, fruit, chocolate, vanilla, honey, 216 candy, cocoa, a dessert, an alcoholic beverage, an herb or 217 spice, or any combination thereof. 218 (b) This subsection does not apply to the sale, shipment, 219 or transport of any product that receives a marketing order 220 issued by the United States Food and Drug Administration under 221 21 U.S.C. s. 387j. 222 Section 6. Section 569.101, Florida Statutes, is amended to 223 read: 224 569.101 Selling, delivering, bartering, furnishing, or 225 giving tobacco products to persons under 2118years of age; 226 criminal penalties; defense.— 227 (1) It is unlawful to sell, deliver, barter, furnish, or 228 give, directly or indirectly, to any person who is under 2118229 years of age, any tobacco product. 230 (2) Any person who violates subsection (1) commits a 231 misdemeanor of the second degree, punishable as provided in s. 232 775.082 or s. 775.083. However, any person who violates 233 subsection (1) for a second or subsequent time within 1 year of 234 the first violation, commits a misdemeanor of the first degree, 235 punishable as provided in s. 775.082 or s. 775.083. 236 (3) A person charged with a violation of subsection (1) has 237 a complete defense if, at the time the tobacco product was sold, 238 delivered, bartered, furnished, or given: 239 (a) The buyer or recipient falsely evidenced that she or he 240 was 2118years of age or older; 241 (b) The appearance of the buyer or recipient was such that 242 a prudent person would believe the buyer or recipient to be 21 24318years of age or older; and 244 (c) Such person carefully checked a driver license or an 245 identification card issued by this state or another state of the 246 United States, a passport, or a United States armed services 247 identification card presented by the buyer or recipient and 248 acted in good faith and in reliance upon the representation and 249 appearance of the buyer or recipient in the belief that the 250 buyer or recipient was 2118years of age or older. 251 (4) A person must verify by means of identification 252 specified in paragraph (3)(c) that a person purchasing a tobacco 253 product is not under 21 years of age. Such verification is not 254 required for any person over the age of 29. 255 Section 7. Section 569.11, Florida Statutes, is amended to 256 read: 257 569.11 Possession, misrepresenting ageor military service258 to purchase, and purchase of tobacco products by persons under 259 2118years of age prohibited; penalties; jurisdiction; 260 disposition of fines.— 261 (1) It is unlawful for any person under 2118years of age 262 to knowingly possess any tobacco product. Any person under 2118263 years of age who violates this subsection commits a noncriminal 264 violation as provided in s. 775.08(3), punishable by: 265 (a) For a first violation, 16 hours of community service 266 or, instead of community service, a $25 fine. In addition, if 267 the person is under 18 years of age, the person must attend a 268 school-approved anti-vaping or anti-tobacco program, if locally269available; or 270 (b) For a second or subsequent violation within 12 weeks 271 after the first violation, a $25 fine. 272 273 Any second or subsequent violation not within the 12-week period 274 after the first violation is punishable as provided for a first 275 violation. 276 (2) It is unlawful for any person under 2118years of age 277 to misrepresent his or her ageor military servicefor the 278 purpose of inducing a dealer or an agent or employee of the 279 dealer to sell, give, barter, furnish, or deliver any tobacco 280 product, or to purchase, or attempt to purchase, any tobacco 281 product from a person or a vending machine. Any person under 21 28218years of age who violates this subsection commits a 283 noncriminal violation as provided in s. 775.08(3), punishable 284 by: 285 (a) For a first violation, 16 hours of community service 286 or, instead of community service, a $25 fine and, in addition, 287 if the person is under 18 years of age, the person must attend a 288 school-approved anti-vaping or anti-tobacco program, if289available; or 290 (b) For a second or subsequent violation within 12 weeks 291 after the first violation, a $25 fine. 292 293 Any second or subsequent violation not within the 12-week period 294 after the first violation is punishable as provided for a first 295 violation. 296 (3) Any person under 2118years of age cited for 297 committing a noncriminal violation under this section must sign 298 and accept a civil citation indicating a promise to appear 299 before the county court or comply with the requirement for 300 paying the fine and, if the person is under 18 years of age, 301 must attend a school-approved anti-vaping or anti-tobacco 302 program, if locally available. If a fine is assessed for a 303 violation of this section, the fine must be paid within 30 days 304 after the date of the citation or, if a court appearance is 305 mandatory, within 30 days after the date of the hearing. 306 (4) A person charged with a noncriminal violation under 307 this section must appear before the county court or comply with 308 the requirement for paying the fine. The court, after a hearing, 309 shall make a determination as to whether the noncriminal 310 violation was committed. If the court finds the violation was 311 committed, it shall impose an appropriate penalty as specified 312 in subsection (1) or subsection (2). A person who participates 313 in community service shall be considered an employee of the 314 state for the purpose of chapter 440, for the duration of such 315 service. 316 (5)(a) If a person under 2118years of age is found by the 317 court to have committed a noncriminal violation under this 318 section and that person has failed to complete community 319 service, pay the fine as required by paragraph (1)(a) or 320 paragraph (2)(a), or, if the person is under 18 years of age, 321 attend a school-approved anti-vaping or anti-tobacco program, if322locally available, the court may direct the Department of 323 Highway Safety and Motor Vehicles to withhold issuance of or 324 suspend the driver license or driving privilege of that person 325 for a period of 30 consecutive days. 326 (b) If a person under 2118years of age is found by the 327 court to have committed a noncriminal violation under this 328 section and that person has failed to pay the applicable fine as 329 required by paragraph (1)(b) or paragraph (2)(b), the court may 330 direct the Department of Highway Safety and Motor Vehicles to 331 withhold issuance of or suspend the driver license or driving 332 privilege of that person for a period of 45 consecutive days. 333 (6) Eighty percent of all civil penalties received by a 334 county court pursuant to this section shall be remitted by the 335 clerk of the court to the Department of Revenue for transfer to 336 the Department of Education to provide for teacher training and 337 for research and evaluation to reduce and prevent the use of 338 tobacco products by children. The remaining 20 percent of civil 339 penalties received by a county court pursuant to this section 340 shall remain with the clerk of the county court to cover 341 administrative costs. 342 Section 8. Section 877.112, Florida Statutes, is repealed. 343 Section 9. Paragraphs (a) and (b) of subsection (5) and 344 paragraphs (e) and (g) of subsection (8) of section 210.095, 345 Florida Statutes, are amended to read: 346 210.095 Mail order, Internet, and remote sales of tobacco 347 products; age verification.— 348 (5) Each person who mails, ships, or otherwise delivers 349 tobacco products in connection with an order for a delivery sale 350 must: 351 (a) Include as part of the shipping documents, in a clear 352 and conspicuous manner, the following statement: “Tobacco 353 Products: Florida law prohibits shipping to individuals under 21 35418years of age and requires the payment of all applicable 355 taxes.” 356 (b) Use a method of mailing, shipping, or delivery which 357 obligates the delivery service to require: 358 1. The individual submitting the order for the delivery 359 sale or another adult who resides at the individual’s address to 360 sign his or her name to accept delivery of the shipping 361 container. Proof of the legal minimum purchase age of the 362 individual accepting delivery is required only if the individual 363 appears to be under 3027years of age. 364 2. Proof that the individual is either the addressee or the 365 adult designated by the addressee, in the form of a valid, 366 government-issued identification card bearing a photograph of 367 the individual who signs to accept delivery of the shipping 368 container. 369 370 If the person accepting a purchase order for a delivery sale 371 delivers the tobacco products without using a delivery service, 372 the person must comply with all of the requirements of this 373 section which apply to a delivery service. Any failure to comply 374 with a requirement of this section constitutes a violation 375 thereof. 376 (8) 377 (e) A person who, in connection with a delivery sale, 378 delivers tobacco products on behalf of a delivery service to an 379 individual who is not an adult commits a misdemeanor of the 380 secondthirddegree, punishable as provided in s. 775.082 or s. 381 775.083. 382 (g) An individual who is not an adult and who knowingly 383 violates any provision of this section commits a misdemeanor of 384 the secondthirddegree, punishable as provided in s. 775.082 or 385 s. 775.083. 386 Section 10. Section 569.0075, Florida Statutes, is amended 387 to read: 388 569.0075 Gift of sample tobacco products prohibited.—The 389 gift of sample tobacco products to any person under the age of 390 2118by an entity licensed or permitted under the provisions of 391 chapter 210 or this chapter, or by an employee of such entity, 392 is prohibited and is punishable as provided in s. 569.101. 393 Section 11. Subsection (1), paragraphs (b) and (c) of 394 subsection (2), and subsection (3) of section 569.008, Florida 395 Statutes, are amended to read: 396 569.008 Responsible retail tobacco products dealers; 397 qualifications; mitigation of disciplinary penalties; diligent 398 management and supervision; presumption.— 399 (1) The Legislature intends to prevent the sale of tobacco 400 products to persons under 2118years of age and to encourage 401 retail tobacco products dealers to comply with responsible 402 practices in accordance with this section. 403 (2) To qualify as a responsible retail tobacco products 404 dealer, the dealer must establish and implement procedures 405 designed to ensure that the dealer’s employees comply with the 406 provisions of this chapter. The dealer must provide a training 407 program for the dealer’s employees which addresses the use and 408 sale of tobacco products and which includes at least the 409 following topics: 410 (b) Methods of recognizing and handling customers under 21 41118years of age. 412 (c) Procedures for proper examination of identification 413 cards in order to verify that customers are not under 2118414 years of age. 415 (3) In determining penalties under s. 569.006, the division 416 may mitigate penalties imposed against a dealer because of an 417 employee’s illegal sale of a tobacco product to a person under 418 2118years of age if the following conditions are met: 419 (a) The dealer is qualified as a responsible dealer under 420 this section. 421 (b) The dealer provided the training program required under 422 subsection (2) to that employee before the illegal sale 423 occurred. 424 (c) The dealer had no knowledge of that employee’s 425 violation at the time of the violation and did not direct, 426 approve, or participate in the violation. 427 (d) If the sale was made through a vending machine, the 428 machine was equipped with an operational lock-out device. 429 Section 12. Paragraph (b) of subsection (2), subsection 430 (3), and paragraph (g) of subsection (4) of section 569.12, 431 Florida Statutes, are amended to read: 432 569.12 Jurisdiction; tobacco product enforcement officers 433 or agents; enforcement.— 434 (2) 435 (b) A tobacco product enforcement officer is authorized to 436 issue a citation to a person under the age of 2118when, based 437 upon personal investigation, the officer has reasonable cause to 438 believe that the person has committed a civil infraction in 439 violation of s. 386.212 or s. 569.11. 440 (3) A correctional probation officer as defined in s. 441 943.10(3) is authorized to issue a citation to a person under 442 the age of 2118when, based upon personal investigation, the 443 officer has reasonable cause to believe that the person has 444 committed a civil infraction in violation of s. 569.11. 445 (4) A citation issued to any person violating the 446 provisions of s. 569.11 shall be in a form prescribed by the 447 Division of Alcoholic Beverages and Tobacco of the Department of 448 Business and Professional Regulation and shall contain: 449 (g) The procedure for the person to follow in order to 450 contest the citation, perform the required community service, 451 attend the required anti-vaping or anti-tobacco program, or to 452 pay the civil penalty. 453 Section 13. Section 569.14, Florida Statutes, is amended to 454 read: 455 569.14 Posting of a sign stating that the sale of tobacco 456 products to persons under 2118years of age is unlawful; 457 enforcement; penalty.— 458 (1) A dealer that sells tobacco products shall post a clear 459 and conspicuous sign in each place of business where such 460 products are sold which substantially states the following: 461 462 THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE 463 OF 2118IS AGAINST FLORIDA LAW. PROOF OF AGE IS 464 REQUIRED FOR PURCHASE. 465 466 (2)A dealer that sells tobacco products and nicotine467products or nicotine dispensing devices, as defined in s.468877.112, may use a sign that substantially states the following:469 470THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR471NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE472OF 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED473FOR PURCHASE.474 475A dealer that uses a sign as described in this subsection meets476the signage requirements of subsection (1) and s. 877.112.477(3)The division shall make available to dealers of tobacco 478 products signs that meet the requirements of subsection (1)or479subsection (2). 480 (3)(4)Any dealer that sells tobacco products shall provide 481 at the checkout counter in a location clearly visible to the 482 dealer or the dealer’s agent or employee instructional material 483 in a calendar format or similar format to assist in determining 484 whether a person is of legal age to purchase tobacco products. 485 This point of sale material must contain substantially the 486 following language: 487 488 IF YOU WERE NOT BORN BEFORE THIS DATE 489 (insert date and applicable year) 490 YOU CANNOT BUY TOBACCO PRODUCTS. 491 492 Upon approval by the division, in lieu of a calendar a dealer 493 may use card readers, scanners, or other electronic or automated 494 systems that can verify whether a person is of legal age to 495 purchase tobacco products. Failure to comply with the provisions 496 contained in this subsection shall result in imposition of 497 administrative penalties as provided in s. 569.006. 498 (4)(5)The division, through its agents and inspectors, 499 shall enforce this section. 500 (5)(6)Any person who fails to comply with subsection (1) 501 is guilty of a misdemeanor of the second degree, punishable as 502 provided in s. 775.082 or s. 775.083. 503 Section 14. Subsections (3) and (4) of section 569.19, 504 Florida Statutes, are amended to read: 505 569.19 Annual report.—The division shall report annually 506 with written findings to the Legislature and the Governor by 507 December 31, on the progress of implementing the enforcement 508 provisions of this chapter. This must include, but is not 509 limited to: 510 (3) The number of violations for selling tobacco products 511 to persons under age 2118, and the results of administrative 512 hearings on the above and related issues. 513 (4) The number of persons under age 2118cited for 514 violations of s. 569.11 and sanctions imposed as a result of 515 citation. 516 Section 15. This act shall take effect October 1, 2020.