Florida Senate - 2025 CS for SB 928 By the Committee on Regulated Industries; and Senator Calatayud 580-02351-25 2025928c1 1 A bill to be entitled 2 An act relating to nonapproved disposable nicotine 3 dispensing devices; providing a short title; 4 reordering and amending s. 569.31, F.S.; defining the 5 term nonapproved disposable device; amending s. 6 569.33, F.S.; revising which permitholders that the 7 premises covered by the permit are subject to 8 inspection and search by the Division of Alcoholic 9 Beverages and Tobacco; revising the provision that, 10 upon being granted a permit, such permitholders also 11 consent to inspections by the Department of Law 12 Enforcement for specified violations; requiring the 13 division to inspect regularly the licensed premises of 14 dealers who sell nonapproved disposable devices; 15 amending s. 569.35, F.S.; revising penalties for 16 violations involving the unlawful sale of nonapproved 17 disposable devices; requiring that administrative 18 fines for certain violations be used by the division 19 for specified purposes; amending s. 569.37, F.S.; 20 prohibiting a dealer who sells nonapproved disposable 21 devices from advertising, promoting, or displaying for 22 sale such devices in certain locations; revising 23 applicability; providing restrictions on locations for 24 specified dealers of nicotine products; requiring 25 dealers to submit specified information to the 26 division; requiring certain dealers to maintain 27 specified records; authorizing the division to request 28 and have access to such records; providing that 29 failure of provide such records is a violation of this 30 section; requiring dealers to provide specified 31 information within a certain time period following 32 such a request; requiring dealers to submit an 33 application to the division for conditional use or 34 legally recognized nonconforming use in specified 35 circumstances; requiring dealers to relocate following 36 approval of such applications within a specified 37 timeframe; amending s. 569.39, F.S.; revising the 38 divisions rulemaking authority; amending s. 569.44, 39 F.S.; revising the information that must be included 40 in the divisions annual report to the Legislature and 41 the Governor; reenacting ss. 569.381(3) and (5) and 42 569.43(3), F.S., relating to responsible retail 43 nicotine products dealers, qualifications, mitigation 44 of disciplinary penalties, diligent management and 45 supervision, and presumption; and posting of a sign 46 stating that the sale of nicotine products or nicotine 47 dispensing devices to persons under 21 years of age is 48 unlawful, enforcement, and penalties, respectively, to 49 incorporate the amendment made to s. 569.35, F.S., in 50 references thereto; providing an effective date. 51 52 Be It Enacted by the Legislature of the State of Florida: 53 54 Section 1.This act may be cited as the Florida Age Gate 55 Act. 56 Section 2.Section 569.31, Florida Statutes, is reordered 57 and amended to read: 58 569.31Definitions.As used in this part, the term: 59 (2)(1)Dealer is synonymous with the term retail 60 nicotine products dealer. 61 (3)(2)Division means the Division of Alcoholic Beverages 62 and Tobacco of the Department of Business and Professional 63 Regulation. 64 (4)(3)FDA means the United States Food and Drug 65 Administration. 66 (5)(4)Nicotine dispensing device means any product that 67 employs an electronic, chemical, or mechanical means to produce 68 vapor or aerosol from a nicotine product, including, but not 69 limited to, an electronic cigarette, electronic cigar, 70 electronic cigarillo, electronic pipe, or other similar device 71 or product, any replacement cartridge for such device, and any 72 other container of nicotine in a solution or other form intended 73 to be used with or within an electronic cigarette, electronic 74 cigar, electronic cigarillo, electronic pipe, or other similar 75 device or product. For purposes of this definition, each 76 individual stock keeping unit is considered a separate nicotine 77 dispensing device. 78 (6)(5)Nicotine product means any product that contains 79 nicotine, including liquid nicotine, which is intended for human 80 consumption, whether inhaled, chewed, absorbed, dissolved, or 81 ingested by any means. The term also includes any nicotine 82 dispensing device. The term does not include a: 83 (a)Tobacco product, as defined in s. 569.002; 84 (b)Product regulated as a drug or device by the United 85 States Food and Drug Administration under Chapter V of the 86 Federal Food, Drug, and Cosmetic Act; or 87 (c)Product that contains incidental nicotine. 88 (7)(6)Nicotine products manufacturer means any person or 89 entity that manufactures nicotine products. 90 (9)(7)Permit is synonymous with the term retail 91 nicotine products dealer permit. 92 (10)(8)Retail nicotine products dealer means the holder 93 of a retail nicotine products dealer permit. 94 (11)(9)Retail nicotine products dealer permit means a 95 permit issued by the division under s. 569.32. 96 (12)(10)Self-service merchandising means the open 97 display of nicotine products, whether packaged or otherwise, for 98 direct retail customer access and handling before purchase 99 without the intervention or assistance of the dealer or the 100 dealers owner, employee, or agent. An open display of such 101 products and devices includes the use of an open display unit. 102 (13)(11)Sell or sale means, in addition to its common 103 usage meaning, any sale, transfer, exchange, barter, gift, or 104 offer for sale and distribution, in any manner or by any means. 105 (1)(12)Any person under the age of 21 does not include 106 any person under the age of 21 who: 107 (a)Is in the military reserve or on active duty in the 108 Armed Forces of the United States; or 109 (b)Is acting in his or her scope of lawful employment. 110 (8)Nonapproved disposable device means a disposable or 111 single-use nicotine dispensing device as defined in this section 112 which has not received a marketing granted order under 21 U.S.C. 113 s. 387j. 114 Section 3.Section 569.33, Florida Statutes, is amended to 115 read: 116 569.33Consent to inspection and search without warrant. 117 (1)An applicant for a retail nicotine products dealer 118 permit or a retail tobacco products dealer permit issued under 119 s. 569.003, by accepting the permit when issued, agrees that the 120 place or premises covered by the permit is subject to inspection 121 and search without a search warrant by the division or its 122 authorized assistants, and by sheriffs, deputy sheriffs, or 123 police officers, to determine compliance with this part. An 124 applicant also consents to inspection and search without a 125 search warrant of the licensed premises by the Department of Law 126 Enforcement to determine compliance with this part relating to 127 the unlawful sale of nonapproved disposable devices or the 128 unlawful advertising, promotion, or display for sale of such 129 devices. 130 (2)The division shall conduct regular inspections of the 131 licensed premises of dealers who sell nonapproved disposable 132 devices to ensure compliance with this part. 133 Section 4.Section 569.35, Florida Statutes, is amended to 134 read: 135 569.35Retail nicotine product dealers; administrative and 136 criminal penalties. 137 (1)The division may suspend or revoke the permit of a 138 dealer, including the retail tobacco products dealer permit of a 139 retail tobacco products dealer as defined in s. 569.002(4), upon 140 sufficient cause appearing of the violation of any of the 141 provisions of this part, by a dealer, or by a dealers agent or 142 employee. 143 (2)(a)Except as provided in paragraph (b), the division 144 may also assess and accept an administrative fine of up to 145 $1,000 against a dealer for each violation. The division shall 146 deposit all fines collected under this paragraph into the 147 General Revenue Fund as collected. 148 (b)The division may impose the following penalties for 149 each violation involving the unlawful advertising, promotion, or 150 display for sale of nonapproved disposable devices as provided 151 in s. 569.37(3): 152 1.For a first violation, an administrative fine of at 153 least $500, but not more than $1,000, and an order requiring 154 that corrective action be taken within 15 days to preclude a 155 recurrence; 156 2.For a second violation within 12 weeks after the first 157 violation, an administrative fine of $1,000 and up to a 30-day 158 suspension of the dealers retail nicotine products dealer 159 permit; or 160 3.For a third or subsequent violation within 12 weeks 161 after the first violation, an administrative fine of at least 162 $2,500, but not more than $5,000, and at least a 30-day 163 suspension or revocation of the dealers nicotine products 164 dealer permit. 165 166 Any second or subsequent violation beyond the 12-week period 167 after the first violation is punishable as provided for a first 168 violation. The division shall deposit all fines collected under 169 this paragraph into the Professional Regulation Trust Fund. 170 (c)In addition to any administrative penalties authorized 171 under subparagraph (b)3., a dealer, or a dealers agent or 172 employee, who commits a third or subsequent violation within 12 173 weeks after the first violation commits a misdemeanor of the 174 second degree, punishable as provided in s. 775.082 or s. 175 775.083. 176 (3)An order imposing an administrative fine becomes 177 effective 15 days after the date of the order. The division may 178 suspend the imposition of a penalty against a dealer, 179 conditioned upon the dealers compliance with terms the division 180 considers appropriate. 181 (4)Administrative fines collected under paragraph (2)(b) 182 shall be used by the division to do all of the following: 183 (a)Increase enforcement personnel. 184 (b)Fund compliance inspections and investigations. 185 (c)Develop and implement public awareness campaigns to 186 reduce nicotine use by persons under the age of 21. 187 Section 5.Present subsections (3) and (4) of section 188 569.37, Florida Statutes, are redesignated as subsections (4) 189 and (5), respectively, a new subsection (3) and subsection (6) 190 are added to that section, and present subsection (3) of that 191 section is amended, to read: 192 569.37Sale or delivery of nicotine products; 193 restrictions. 194 (3)A dealer who sells nonapproved disposable devices may 195 not: 196 (a)Advertise, promote, or display for sale such 197 nonapproved disposable devices in any location that is visible 198 to persons outside of the dealers licensed premises. 199 (b)Advertise, promote, or display for sale such 200 nonapproved disposable devices within the dealers licensed 201 premises in a manner visible to any person under the age of 21, 202 including, but not limited to, placement of the devices in an 203 open display unit located in an area visible to any person under 204 the age of 21. 205 (4)(3)The provisions of Subsections (1), and (2), and (3) 206 do shall not apply to an establishment that prohibits persons 207 under 21 years of age on the licensed premises. 208 (6)(a)A dealer that derives more than 20 percent of its 209 gross monthly retail sales from the sale of nicotine products 210 may not be located within 500 feet of the real property that 211 comprises a public or private elementary school, middle school, 212 or secondary school. The required distance must be measured on a 213 straight line from the nearest property line of the retail shop 214 to the nearest property line of the school. 215 (b)Each dealer must submit to the division a survey 216 certified under chapter 472, performed at least 30 days before 217 the date of the submission of the application for a permit under 218 s. 569.32, containing a legal description of the boundaries of 219 the place or premises and any existing public or private 220 elementary school, middle school, or secondary school located 221 within 500 feet. The measurement scaled by the division governs 222 any measurement disputes. 223 (c)A dealer located within 500 feet of real property that 224 comprises a public or private elementary school, middle school, 225 or secondary school must maintain records verifying the gross 226 monthly retail sales from the sale of nicotine products during 227 the previous 6 months, as well as the percentage of such sales 228 that represents the retail sales of nicotine dispensing devices. 229 The division may request and have access to such records for the 230 purpose of enforcement. Within 14 days after such request, the 231 dealer must provide a summary sales report verifying its sales 232 for the period of time requested. Failure of the dealer to 233 provide a sales report when requested by the division, or 234 failure of the dealer to adequately demonstrate that the 235 business establishment has sold less than the required 236 percentage of nicotine products and nicotine dispensing devices, 237 is a violation of this section. 238 (d)Within 90 days after the opening of a public or private 239 elementary school, middle school, or secondary school located 240 within 500 feet of an existing place of business or premises 241 that sells nicotine products or nicotine dispensing devices, as 242 determined under paragraph (a), the dealer must submit an 243 application to the division for conditional use or legally 244 recognized nonconforming use in accordance with the local 245 governments applicable land development regulations. Upon 246 approval of the division for conditional use or a legally 247 recognized nonconforming use, the dealer must relocate the 248 business or premises within 180 days, or upon expiration of the 249 dealers current lease agreement without any extension thereof, 250 whichever occurs later, to a new location in compliance with 251 this subsection. 252 (e)Within 90 days after July 1, 2025, a dealer that has a 253 place of business or premises located within 500 feet of a 254 public or private elementary school, middle school, or secondary 255 school, as determined under paragraph (a), must submit an 256 application to the division for conditional use or legally 257 recognized nonconforming use in accordance with the local 258 governments land development regulations. Upon approval of the 259 division for conditional use or a legally recognized 260 nonconforming use, the dealer must relocate the business or 261 premises within 180 days, or upon expiration of the dealers 262 current lease agreement without any extension thereof, whichever 263 occurs later, to a new location in compliance with this 264 subsection. 265 Section 6.Section 569.39, Florida Statutes, is amended to 266 read: 267 569.39Rulemaking authority.The division shall adopt rules 268 to administer and enforce this part. The rules must include 269 guidelines for compliance audits and enforcement actions 270 pertaining to the sale, advertising, promotion, and display for 271 sale of nonapproved disposable devices. 272 Section 7.Present subsections (3) and (4) of section 273 569.44, Florida Statutes, are redesignated as subsections (4) 274 and (5), respectively, and a new subsection (3) is added to that 275 section, to read: 276 569.44Annual report.The division shall report annually 277 with written findings to the Legislature and the Governor by 278 December 31 on the progress of implementing the enforcement 279 provisions of this part. This must include, but is not limited 280 to: 281 (3)The number of violations for any advertising, 282 promotion, or display of nonapproved disposable devices 283 prohibited by s. 569.37(3). 284 Section 8.For the purpose of incorporating the amendment 285 made by this act to section 569.35, Florida Statutes, in 286 references thereto, subsections (3) and (5) of section 569.381, 287 Florida Statutes, are reenacted to read: 288 569.381Responsible retail nicotine products dealers; 289 qualifications; mitigation of disciplinary penalties; diligent 290 management and supervision; presumption. 291 (3)In determining penalties under s. 569.35, the division 292 may mitigate penalties imposed against a dealer because of an 293 employees illegal sale of a nicotine product to a person under 294 21 years of age if the following conditions are met: 295 (a)The dealer is qualified as a responsible dealer under 296 this section. 297 (b)The dealer provided the training program required under 298 subsection (2) to that employee before the illegal sale 299 occurred. 300 (c)The dealer had no knowledge of that employees 301 violation at the time of the violation and did not direct, 302 approve, or participate in the violation. 303 (d)If the sale was made through a vending machine, the 304 machine was equipped with an operational lock-out device. 305 (5)Dealers shall exercise diligence in the management and 306 supervision of their premises and in the supervision and 307 training of their employees, agents, or servants. In proceedings 308 to impose penalties under s. 569.35, proof that employees, 309 agents, or servants of the dealer, while in the scope of their 310 employment, committed at least three violations of s. 569.41 311 during a 180-day period shall be prima facie evidence of a lack 312 of due diligence by the dealer in the management and supervision 313 of his or her premises and in the supervision and training of 314 employees, agents, officers, or servants. 315 Section 9.For the purpose of incorporating the amendment 316 made by this act to section 569.35, Florida Statutes, in a 317 reference thereto, subsection (3) of section 569.43, Florida 318 Statutes, is reenacted to read: 319 569.43Posting of a sign stating that the sale of nicotine 320 products or nicotine dispensing devices to persons under 21 321 years of age is unlawful; enforcement; penalty. 322 (3)Any dealer that sells nicotine products shall provide 323 at the checkout counter in a location clearly visible to the 324 dealer or the dealers agent or employee instructional material 325 in a calendar format or similar format to assist in determining 326 whether a person is of legal age to purchase nicotine products. 327 This point of sale material must contain substantially the 328 following language: 329 330 IF YOU WERE NOT BORN BEFORE THIS DATE 331 ...(insert date and applicable year)... 332 YOU CANNOT BUY TOBACCO PRODUCTS, 333 NICOTINE PRODUCTS, OR NICOTINE DISPENSING DEVICES. 334 335 Upon approval by the division, in lieu of a calendar a dealer 336 may use card readers, scanners, or other electronic or automated 337 systems that can verify whether a person is of legal age to 338 purchase nicotine products. Failure to comply with the 339 provisions contained in this subsection shall result in 340 imposition of administrative penalties as provided in s. 569.35. 341 Section 10.This act shall take effect July 1, 2025.