The Implications of House Bill 49 (on the Retail Sale of Smoking Pipes/Devices) after July 1, 2013
New Florida Legislation will affect the ability to sell certain smoking pipes/devices under the retail tobacco product dealers’ exception provided in section 569.0073, Florida Statutes, after the new law (HB 49) pertaining to the retail sale of “drug paraphernalia” goes into effect on July 1, 2013. There’s been considerable controversy and backlash towards the newly signed bill. This is my understanding of House Bill 49 and its implications:
Currently, section 569.0073, F.S. allows persons with a retail tobacco products dealer permit to sell certain smoking pipes/devices as long as the dealer either (1) derives at least 75 percent of its annual gross revenues from the retail sale of cigarettes, cigars, or other tobacco products; OR (2) derives no more than 25 percent of its annual gross revenues from the retail sale of the permitted smoking pipes/devices. This past legislative session a new law was passed that outlaws the retail sale of “drug paraphernalia” which expressly lists certain smoking pipes/devices. See, House Bill 49, “Retail Sale of Drug Paraphernalia.”
It is very important to note that while the new law lists certain smoking pipes/devices the law does NOT make the items per se “drug paraphernalia.” Rather in order for the smoking pipes/devices to be considered “drug paraphernalia” the items must be “used, intended for use, or designed for use” in “ingesting, inhaling, or otherwise introducing into the human body a controlled substance.” See, section 893.145, F.S. Equally important is the fact that when the legislation was originally filed, it expressly removed the exception (s. 569.0073, F.S.) that allows retail tobacco products dealers to sell smoking devices. However, the bill was ultimately amended to its present form which does NOT amend s. 569.0073 but rather creates the new criminal offense of the retail sale of drug paraphernalia in section 893.147(6), F.S.
Because the new law clearly focuses on the sale of “drug paraphernalia” as defined by statute (as opposed to smoking pipes/devices), and does not in any way amend section 569.0073, it is my opinion that a business may continue to legally sell smoking pipes/devices as long as they comply with the retail tobacco products dealer exception referenced above in section 569.0073, F.S.
That being said, I will caution that the tobacco dealer exception does not give immunity from prosecution for the sale of drug paraphernalia. If law enforcement believes a business to know (or should reasonably know) that the smoking devices it sells are being used for illegally controlled substances, it can be criminally charged. In determining whether the pipes are indeed paraphernalia, some of the factors law enforcement are allowed to consider include:
*statements by an owner/employee concerning its use;
*the proximity of the pipe to controlled substances;
*direct or circumstantial evidence of the intent of the owner/employee to deliver it to persons who he or she knows, or should reasonably know, intends to use the device to violate the law;
*any advertising concerning its use;
*the manner in which the device is displayed; and
*existence and scope of legitimate uses for the device in the community.
Please know that this is in no way an exhaustive list of factors to be considered by law enforcement, as Florida law allows them to consider these factors, as well as, “all other logically relevant factors.” See, section 893.146.