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The Florida Statutes

The 2017 Florida Statutes

Title XIV
TAXATION AND FINANCE
Chapter 210
TAX ON TOBACCO PRODUCTS
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F.S. 210.095
210.095 Mail order, Internet, and remote sales of tobacco products; age verification.
(1) For purposes of this section, the term:
(a) “Adult” means an individual who is at least of the legal minimum purchase age for tobacco products.
(b) “Consumer” means a person in this state who comes into possession of any tobacco product subject to the tax imposed by this chapter and who, at the time of possession, is not a distributor intending to sell or distribute the tobacco product, a retailer, or a wholesaler.
(c) “Delivery sale” means any sale of tobacco products to a consumer in this state for which:
1. The consumer submits the order for the sale by telephonic or other voice transmission, mail, delivery service, or the Internet or other online service; or
2. The tobacco products are delivered by use of mail or a delivery service.
(d) “Delivery service” means any person engaged in the commercial delivery of letters, packages, or other containers.
(e) “Legal minimum purchase age” means the minimum age at which an individual may legally purchase tobacco products in this state.
(f) “Mail” or “mailing” means the shipment of tobacco products through the United States Postal Service.
(g) “Retailer” means any person who is not a licensed distributor but who is in possession of tobacco products subject to tax under this chapter for the purposes of selling the tobacco products to consumers.
(h) “Shipping container” means a container in which tobacco products are shipped in connection with a delivery sale.
(i) “Shipping document” means a bill of lading, airbill, United States Postal Service form, or any other document used to verify the undertaking by a delivery service to deliver letters, packages, or other containers.
(j) “Tobacco products” means all cigarettes, smoking tobacco, snuff, fine-cut chewing tobacco, cut and granulated tobacco, cavendish, and plug or twist tobacco.
(2)(a) A sale of tobacco products constituting a delivery sale pursuant to paragraph (1)(c) is a delivery sale regardless of whether the person accepting the order for the delivery sale is located inside or outside this state.
(b) A retailer must obtain a license from the division pursuant to the requirements of this chapter before accepting an order for a delivery sale.
(c) A person may not make a delivery sale of tobacco products to any individual who is not an adult.
(d) Each person accepting an order for a delivery sale must comply with each of the following:
1. The age-verification requirements set forth in subsection (3).
2. The disclosure requirements set forth in subsection (4).
3. The shipping requirements set forth in subsection (5).
4. The registration and reporting requirements set forth in subsection (6).
5. The tax collection requirements set forth in subsection (7).
6. The licensing and tax stamp requirements set forth in this chapter which apply to sales of tobacco products occurring entirely in this state.
7. All laws of this state generally applicable to sales of tobacco products occurring entirely in this state which impose excise taxes and assessments.
(3) A person may not mail, ship, or otherwise deliver tobacco products in connection with an order for a delivery sale unless, before the first delivery to the consumer, the person accepting the order for the delivery sale:
(a) Obtains from the individual submitting the order a certification that includes:
1. Reliable confirmation that the individual is an adult; and
2. A statement signed by the individual in writing and under penalty of perjury which:
a. Certifies the address and date of birth of the individual; and
b. Confirms that the individual wants to receive delivery sales from a tobacco company and understands that, under the laws of this state, the following actions are illegal:
(I) Signing another individual’s name to the certification;
(II) Selling tobacco products to individuals under the legal minimum purchase age; and
(III) Purchasing tobacco products, if the person making the purchase is under the legal minimum purchase age.
(b) Makes a good faith effort to verify the information contained in the certification provided by the individual pursuant to paragraph (a) against a commercially available database that may be reasonably relied upon for accurate age information or obtains a photocopy or other image of a valid government-issued identification card stating the date of birth or age of the individual.
(c) Provides to the individual, via electronic mail or other means, a notice meeting the requirements of subsection (4).
(d) If an order for tobacco products is made pursuant to an advertisement on the Internet, receives payment for the delivery sale from the consumer by a credit or debit card issued in the name of the consumer, or by personal or company check of the consumer.
(e) Imposes a two-carton minimum on each order of cigarettes, and requires payment for the purchase of any tobacco product to be made by personal or company check of the purchaser or the purchaser’s credit card or debit card. Payment by money order or cash may not be received or permitted. The person accepting the order for delivery sale shall submit, to each credit card acquiring company with which the person has credit card sales, identification information in an appropriate form and format so that the words “tobacco product” may be printed in the purchaser’s credit card statement when a purchase of a tobacco product is made by credit card payment.
(f) Makes a telephone call after 5 p.m. to the purchaser confirming the order before shipping the tobacco products. The telephone call may be a person-to-person call or a recorded message. The person accepting the order for delivery sale is not required to speak directly with a person and may leave a message on an answering machine or through voice mail.

In addition to the requirements of this subsection, a person accepting an order for a delivery sale may request that a consumer provide an electronic mail address.

(4) The notice described in paragraph (3)(c) must include prominent and clearly legible statements that sales of tobacco products are:
(a) Illegal if made to individuals who are not adults.
(b) Restricted to those individuals who provide verifiable proof of age in accordance with subsection (3).
(c) Taxable under this chapter.

The notice must include an explanation of how each tax has been, or is to be, paid with respect to the delivery sale.

(5) Each person who mails, ships, or otherwise delivers tobacco products in connection with an order for a delivery sale must:
(a) Include as part of the shipping documents, in a clear and conspicuous manner, the following statement: “Tobacco Products: Florida law prohibits shipping to individuals under 18 years of age and requires the payment of all applicable taxes.”
(b) Use a method of mailing, shipping, or delivery which obligates the delivery service to require:
1. The individual submitting the order for the delivery sale or another adult who resides at the individual’s address to sign his or her name to accept delivery of the shipping container. Proof of the legal minimum purchase age of the individual accepting delivery is required only if the individual appears to be under 27 years of age.
2. Proof that the individual is either the addressee or the adult designated by the addressee, in the form of a valid, government-issued identification card bearing a photograph of the individual who signs to accept delivery of the shipping container.
(c) Provide to the delivery service, if such service is used, evidence of full compliance with subsection (7).

If the person accepting a purchase order for a delivery sale delivers the tobacco products without using a delivery service, the person must comply with all of the requirements of this section which apply to a delivery service. Any failure to comply with a requirement of this section constitutes a violation thereof.

(6)(a) Before making sales or shipping tobacco products in connection with sales, a person shall file with the division a statement providing the person’s name, trade name, and the address of the person’s principal place of business, as well as any other place of business.
(b) No later than the 10th day of each month, each person who has made a sale or mailed, shipped, or otherwise delivered tobacco products in connection with any sale during the previous calendar month shall file with the division a memorandum or a copy of the invoice, providing for each sale:
1. The name and address of the individual who submitted the order for the sale.
2. The name and address of the individual who accepted delivery of the tobacco products.
3. The name and address of the person who accepted the order for the sale of the tobacco products.
4. The name and address of the delivery service and the name of the individual making the delivery.
5. The brand or brands of the tobacco products sold in the sale.
6. The quantity of each brand of tobacco products sold in the sale.
(c) A person may comply with the requirements of this subsection by complying with the requirements of 15 U.S.C. s. 376.
(d) This section does not apply to sales of tobacco products by a licensed distributor or to sales of tobacco products by a retailer purchased from a licensed distributor.
(7) Each person accepting a purchase order for a delivery sale shall collect and remit to the division all taxes imposed on tobacco products by this state with respect to the delivery sale. With respect to cigarettes, the collection and remission are not required if the person has obtained proof in the form of the presence of applicable tax stamps or tax-exempt stamps, or other proof that the taxes have already been paid to this state.
(8)(a) Except as otherwise provided in this section, a violation of this section by a person other than an individual who is not an adult is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and:
1. For a first violation of this section, the person shall be fined $1,000 or five times the retail value of the tobacco products involved in the violation, whichever is greater.
2. For a second or subsequent violation of this section, the person shall be fined $5,000 or five times the retail value of the tobacco products involved in the violation, whichever is greater.
(b) A person who is an adult and knowingly submits a false certification under subsection (3) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. For each offense, the person shall be fined $10,000 or five times the retail value of the tobacco products involved in the violation, whichever is greater.
(c) A person who fails to pay any tax required in connection with a delivery sale shall pay, in addition to any other penalty, a penalty of five times the retail value of the tobacco products involved.
(d) Any tobacco products sold or attempted to be sold in a delivery sale not meeting the requirements of this section shall be forfeited to the state pursuant to s. 210.185.
(e) A person who, in connection with a delivery sale, delivers tobacco products on behalf of a delivery service to an individual who is not an adult commits a misdemeanor of the 1third degree, punishable as provided in s. 775.082 or s. 775.083.
(f) Any fixture, equipment, or other material or personal property on the premises of any person who, with the intent to defraud this state, mails or ships tobacco products into this state and fails to satisfy any of the requirements of this section is a contraband article within the definition of s. 932.701(2)(a)3.
(g) An individual who is not an adult and who knowingly violates any provision of this section commits a misdemeanor of the 1third degree, punishable as provided in s. 775.082 or s. 775.083.
(9) The Attorney General, the Attorney General’s designee, a state attorney, or any person who holds a permit under 26 U.S.C. s. 5713 may bring an action in the appropriate court in this state to prevent or restrain violations of this section by any person.
History.s. 5, ch. 2009-79.
1Note.Section 775.081 provides only for first and second degree misdemeanors.