Can I Get Arrested for Letting a Minor Vape?

May 23, 2023 Criminal Defense, Juvenile Offenses

In recent years, a concerning trend has taken hold among Florida’s youth: the widespread use of nicotine vaping devices, or e-cigarettes. While initially touted as a safer alternative to traditional tobacco products, the rise of vaping among minors has given rise to a new set of dangers and legal consequences. As parents, educators, and responsible citizens, it is crucial that we understand the gravity of this issue and take decisive action to protect our young generation.

Nicotine is the addictive substance found in e-cigarettes that poses severe risks to adolescent health and development. The teenage brain is still in a critical developmental phase, and exposure to nicotine can have long-lasting detrimental effects. Studies have linked vaping to increased chances of addiction, respiratory problems, impaired cognitive function, and even mental health issues. Furthermore, the allure of flavored e-liquids specifically targets young users, luring them into a hazardous habit that can have lifelong repercussions.

In Florida, the legal framework surrounding vaping by minors is clear and stringent. The Florida Statutes explicitly state that it is unlawful for anyone under the age of 18 to possess or purchase e-cigarettes or any nicotine delivery device. Violations can result in legal penalties, including fines and mandatory participation in tobacco education or community service programs. Retailers who sell vaping products to minors also face legal consequences, such as fines, suspension of licenses, or even criminal charges.

One recent Florida case resulted in a substitute teacher being charged with child abuse after allegedly letting a student use her vape inside the classroom. This page will cover the case details, along with relative information on Florida laws regarding vaping.

Sale or Delivery of Nicotine Products to Persons Under 21

Under Florida Statute Section 569.41, it is unlawful for any person to sell, deliver, barter, furnish, or give, directly or indirectly, any nicotine product to any person younger than 21 years-old.

For a first-time offense, the accused person can face a second-degree misdemeanor. In Florida, a second-degree misdemeanor has penalties of up to a $500 fine and up to 60 days in jail.

If the accused person is charged with a second or subsequent offense within one year of the first conviction, they can face a first-degree misdemeanor. In Florida, the penalties for a first-degree misdemeanor include up to a $1,000 fine and up to one year in prison.

Important: Under Florida law, a person who is accused of selling nicotine products to a person under 21 has a complete defense against this charge if, at the time the product was sold, delivered, bartered, furnished, or given:

  • The person buying the nicotine product falsely evidenced that he or she was 21 years-old or older;
  • The appearance of the person buying the nicotine product was such that a prudent person would believe the buyer or recipient to be 21 years-old or older; and
  • The person charged carefully checked a driver’s license or ID card issued by Florida or another state, or a passport or US armed services identification card that was presented by the underage buyer or recipient, and the person charged acted in good faith and in reliance upon the representations and appearance of the buyer believed them to be 21 years of age or older.

Possession of Nicotine Products by Persons Under 21

If a person under 21 years-old is caught in the possession of any nicotine product they may face noncriminal penalties.

Under Florida Statute Section 569.42(1), it is unlawful for any person under 21 years-old to knowingly possess any nicotine product. Under Section 569.42(2) it is also unlawful for any person under 21 years-old to misrepresent their age or military service status for the purpose of inducing a dealer to purchase any nicotine product from a person or vending machine.

For a first-time violation of these two sections of the law, the defendant commits a noncriminal violation and the penalties include 16 hours of community service, or a $25 fine. In addition, the accused person is required to attend a school-approved anti-tobacco and anti-nicotine program if it is locally available.

If the person is accused of a second or subsequent offense within 12 weeks from the first violation, then they must pay the $25 fine and are not given the option of community service. However, if the second or subsequent offense takes place after 12 weeks from the first offense, then the accused person faces the same penalty options as a first-time offense.

Those charged with a violation of this law are required to either sign a promise saying they will appear in front of a county court or pay their fine and attend a school-approved anti-tobacco/nicotine program within 30 days after being issued the citation or after their hearing.

Under section (5)(a), any person under 21 who is found by the court to have committed a noncriminal violation under this section and the person has failed to complete the community service, pay the $25 fine, or complete the anti-tobacco or anti-nicotine program may have a withhold of issuance or suspension of their driver’s license by the Department of Highway Safety and Motor Vehicles for a consecutive period of 45 days.

Smoking and Vaping Near School Grounds

Florida Statute Section 386.212 states that it is unlawful for any person under 21 years-old to smoke tobacco or vape in, on, or within 1,000 feet of any school grounds between the hours of 6 am and midnight. An exception to this is if the person is occupying a moving vehicle or within a private residence separate from the school grounds.

Any person who violates the above law can face a civil citation not exceeding $25. A law enforcement officer can issue such citation, which must contain the following:

  • The date and time of issuance;
  • Name and address of the cited person;
  • Date and time of civil infraction;
  • The specific Statute that was violated;
  • The facts regarding the violation;
  • The name and authority of the law enforcement officer;
  • The procedure for the person to follow is to pay the civil penalty, to contest the citation, or to appear in court;
  • The applicable civil penalty if the person does not contest the citation; and
  • The applicable civil penalty if the person does contest the citation.

Aside from paying a civil penalty, the person in violation of this law may also be required to complete 50 hours of community service or complete a school-approved anti-tobacco or anti-vaping program.

Example Case

Jennifer Hale, 50, was arrested and fired from substitute teaching after allowing a student to smoke nicotine in the classroom. According to the report, Hale was working at Eustis Middle School as a substitute teacher for Lake County.

During Hale’s last period for the day, she allegedly overheard a seventh-grade student discussing how he and his friend wanted to try a vape.

Hale then pulled out her own nicotine vape from her belongings. She asked the seventh-grade student if he wanted to try it but told him not to report it.

Word traveled around the school and the principal confronted Hale about the incident. The substitute admitted to offering her vape to the student and was later escorted off campus and requested not to return.

“You can’t do this. You just can’t do it,” Eustis police Chief Craig Capri said. “This should be common sense. She has a responsibility to that classroom to protect kids. Not abuse them.”

When Hale’s motive was questioned, her reason for offering the vape was to “fit in.”

“I don’t get it,” Capri said. “What is there to fit in? You’re there to teach a class, not fit in.”

Penalties for Child Abuse Charges in Florida

Child abuse is defined under Florida Statue Section 827.03 as the intentional infliction of mental or physical harm upon a child, or an intentional act that could reasonably be expected to result in physical or mental injury to a child. Child abuse is also considered any active encouragement of a person to commit an act that would likely result in mental or physical injury to a child.

Since the substitute teacher offered the nicotine vape, a device that would likely cause physical injury to a child, she was charged with one count of child abuse.

In Florida, the penalties for child abuse vary depending on the amount of harm caused to the minor.

If the defendant is accused of child abuse without causing great bodily harm, permanent disability, or permanent disfigurement, they can face a third-degree felony. The penalties for a third-degree felony include up to $5,000 in fines and up to five years in prison.

If the alleged child abuse offense causes permanent disability, permanent disfigurement, or great bodily harm, then the defendant may be charged with aggravated child abuse. In Florida, aggravated child abuse is considered a first-degree felony. The penalties for a first-degree felony include up to a $10,000 fine and up to 30 years in prison.

Finding a Defense Attorney in Tallahassee, Florida

Nicotine is both dangerous and addictive, which is why the state of Florida has multiple laws to prevent minors from abusing the product. If you or someone you know has been accused of providing nicotine or other unlawful substances to a minor, it is in your best interest to seek out legal representation as soon as possible.

Don Pumphrey and his legal team represent Floridians accused of various criminal offenses. We understand the nuances of the law and can assist in building your case a strong defense. Contact Pumphrey Law Firm’s office at (850) 681-7777 or leave an online message on our website for a free consultation.

Written by Karissa Key

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