Can a Florida city ban the sale of vaping devices completely, or at least raise the legal sale age from 18 to 21?

Plain-English summary

In October 2020, Pembroke Pines (Broward County) asked the Attorney General whether the city could (a) ban the sale of vapor-generating electronic devices entirely within city limits, or (b) prohibit the sale of those devices to persons aged 18 to 20 (in addition to the existing under-18 prohibition). The City Commission was responding to growing teen vaping rates.

The Attorney General split the answer:

• A complete ban would conflict with section 775.082, Florida Statutes. The opinion concluded that a city ordinance making it unlawful to sell what state law treats as legal merchandise to adults is preempted by the state framework that permits adult sales.
• A partial age restriction (18 to 20) would not conflict with state law. State law set a minimum age of 18 at the time, but did not preempt cities from setting a higher local minimum. The opinion conditioned the conclusion on local penalties not exceeding state penalties for similar offenses.

The opinion was issued before the federal Tobacco-21 framework (which set a federal floor at 21 for tobacco and vape products) had been fully implemented in Florida's state code. Today, the federal age-21 minimum applies to all retailers; the state age has been raised to 21 for many products. Readers should treat the opinion's analysis as historical context rather than as a current operating rule.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Florida's home rule authority for municipalities, codified in Chapter 166, Florida Statutes, lets cities adopt ordinances on matters not preempted by state law. Section 775.082, Florida Statutes, sets state-level criminal penalties and provides part of the framework that preempts local rules duplicating or contradicting state-defined criminal categories.

In 2020, Florida's state law set the minimum age for tobacco and vapor product sales at 18. The federal Tobacco-21 law (enacted December 2019) had raised the federal minimum age to 21, creating a misalignment that several states resolved through their own Tobacco-21 legislation. Florida had not yet conformed.

Pembroke Pines' question was an attempt to raise the local minimum age to 21 ahead of state action. The AG's analysis distinguished between a flat ban (preempted, because state law expressly permits regulated adult sales) and a higher local age threshold (allowed, because state law set a floor at 18 and did not preempt cities from setting a higher local floor).

The penalty caveat (local penalties cannot exceed state penalties for similar offenses) reflects a general principle in Florida home-rule jurisprudence: cities can regulate, but cannot impose harsher consequences than the state has set for the analogous violation.

Common questions

Is this opinion still useful in 2026?
Probably as historical context. Federal Tobacco-21 and subsequent Florida legislation have likely raised the state and federal minimum age to 21 across the board, making the specific 18-to-20 question this opinion answered moot. The general principles (preemption analysis, local home-rule authority over higher age thresholds, penalty parity) remain relevant.

What does "complete ban" mean for the analysis?
The opinion treated a complete prohibition on legal-to-state-residents merchandise as crossing into the preempted zone. A city cannot use its home-rule authority to make criminal what state law permits adults to do.

Could a city ban specific flavored vape products?
The opinion does not address that. A flavor ban is narrower than a complete sales prohibition and might survive the same preemption analysis if grounded in legitimate local police power. Subsequent state legislation in some states has explicitly preempted local flavor bans.

Were any cities relying on this opinion in their Tobacco-21 ordinances?
The opinion was widely cited by Florida cities considering local age increases between 2019 and 2021, before federal and state law caught up.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/local-regulation-sale-of-vaping-devices-to-ages-18-20
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1459

Original opinion text

October 21, 2020

Mr. Samuel S. Goren

City Attorney

Mr. Jacob G. Horowitz

Assistant City Attorney

City of Pembroke Pines

3099 E. Commercial Blvd., Suite 200

Fort Lauderdale, Florida 33309

Dear Mr. Goren and Mr. Horowitz,

This office has received your inquiry on behalf of the City Commission of the City of Pembroke Pines (the “City”), asking substantially the following question:

Can the City either completely ban the sale of vapor generating electronic devices within the geographical boundaries of the City of Pembroke Pines, or, alternatively, prohibit the sale of such devices not only to persons under the age of eighteen, but also to persons between the ages of eighteen and twenty?

In sum:

Although a complete ban on the sale of vapor generating electronic devices would conflict with section 775.082, Florida Statutes, an ordinance prohibiting the sale of such devices not only to persons under the age of eighteen, but also to persons between the ages of eighteen and twenty, would not conflict with that statute; provided, however, that the municipal ordinance penalties should not exceed state penalties for similar offenses.

Background Facts
In your submittal letter, you indicate that, “[g]iven the recent proliferation of vaping in general, and among teenagers in particular, the City Commission has expressed an interest in banning the sale of vapor generating electronic devices within the City.” This has prompted the City to ask whether, consistent with Florida law, it can ban the sale of such devices within City limits altogether. In the alternative, the City asks whether it can prohibit the sale of such devices not only to persons under the age of eighteen, but also to persons between the ages of eighteen and twenty.1

Analysis

A municipality may exercise governmental power, “except as otherwise provided by law.”2 Municipalities are authorized to enact legislation concerning any subject matter upon which the state Legislature may act, except any “subject expressly preempted to state or county government by the constitution or by general law.”3

Section 877.112, Florida Statutes, regulates the purchase and sale of nicotine products and nicotine dispensing devices. The regulatory framework contained in section 877.112 consists, briefly, of:

· Definitions of “nicotine product” and “nicotine dispensing devices;”
· Prohibitions on the sale or delivery of such products to persons under the age of 18, providing criminal penalties;
· Affirmative defenses when a buyer or recipient misrepresents his or her age;
· Prohibitions on possession of the products and non-criminal penalties;
· Signage requirements for dealers of the products; and
· A prohibition of self-service merchandising of the products unless they are under the direct control or line of sight of the retailer.

A “nicotine dispensing device” is defined in the statute to mean, in pertinent part, “any product that employs an electronic, chemical, or mechanical means to produce vapor from a nicotine product...or other similar device or product.” Thus, the statute regulates the “vapor generating electronic devices” whose sale the City proposes to further restrict.

The threshold question is whether section 877.112, Florida Statutes, preempts local legislation in the area. Section 877.112 contains no provision expressly preempting county or municipal ordinances. But even in a field where both the State and local government can legislate concurrently, a municipality cannot enact an ordinance that directly conflicts with a state statute.4 Generally, it is “not a conflict if an ordinance is more stringent than a statute.”5 Nor does conflict exist simply because the ordinance “regulates an area not covered by the statute.”6 However, a “municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.”7

Section 877.112, expressly prohibits the sale of vapor generating electronic devices to persons under the age of eighteen. The statute is silent regarding sales of such devices to persons between the ages of eighteen and twenty.

Nor will section 877.112 be construed to create any “right” or “privilege” to purchase such devices applicable to persons in those age groups, in light of federal law universally prohibiting the sale of such devices to anyone under the age of twenty-one.8 Under the specific circumstances applicable here, one cannot conclude that the Legislature--in omitting the sale of nicotine dispensing devices to persons between the ages of eighteen and twenty from the ambit of unlawful acts9 proscribed by section 877.112--has thereby made such transactions “lawful,” or created any “right” or “privilege” to engage in them.10 Instead, section 877.112 operates concurrently, and does not conflict, with federal law that makes the sale of such devices to persons under the age of twenty-one unlawful.11

Based on these principles, the City would not be precluded by state law from enacting an ordinance prohibiting the sale of vapor generating electronic devices not only to persons under the age of eighteen, but also to persons between the ages of eighteen and twenty, within the geographical boundaries of the City of Pembroke Pines.12 The same conclusion does not apply, however, to a proposed total ban on the sale of such devices.

A local law on a subject will conflict with any of the provisions of the state law on the same subject if a person acting to comply with one provision necessarily violates another.13 If the City’s proposed more restrictive ordinance (not a total ban) is carefully crafted, then, in conducting sales transactions, a retailer selling vapor generating electronic devices would be able to comply with both section 877.112 and the local law. The same cannot be said regarding an ordinance totally banning the sales of such devices, where a local retailer’s compliance with section 877.112 would necessarily result in a violation of the City’s ordinance.

Conclusion

Based on the foregoing, it is my opinion that the City would not be precluded by state law from enacting an ordinance prohibiting the sale of vapor generating electronic devices not only to persons under the age of eighteen, but also to persons between the ages of eighteen and twenty, within the geographical boundaries of the City of Pembroke Pines. However, an ordinance imposing a total ban on the sale of such devices within the City’s boundaries would conflict with section 877.112 and would thus not be authorized under Florida law.

Sincerely,

Ashley Moody

Attorney General

1 This opinion does not address the effect of the express federal preemption provision for tobacco products contained in the Family Smoking Prevention and Tobacco Control Act (“Act”) on the City’s ability to regulate sales in this area. See21 U.S.C. § 387p(a)(2)(A) However, in crafting its proposed ordinance (a copy of which was not provided to this office), the City should be mindful of the Act, which is codified at 21 U.S.C. § 301, et seq.

2 Art. VIII, § 2(b), Fla. Const. (1968).
3 § 166.021(3), Fla. Stat. (2019).

4 See Phantom of Brevard, Inc. v. Brevard Cty., 3 So. 3d 309, 314 (Fla. 2008); accord Thomas v. State, 614 So. 2d 468, 470 (Fla.1993) (“Municipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.”).
5 Hoesch v. Broward Cty., 53 So. 3d 1177, 1181 (Fla. 4th DCA 2011); accord City of Kissimmee v. Fla. Retail Fed'n, Inc., 915 So. 2d 205, 209 (Fla. 5th DCA 2005).
6 Id.
7 Rinzler v. Carson, 262 So. 2d 661, 668 (Fla.1972).

8 On December 20, 2019, the President signed into law legislation that raised the federal minimum age for sales of tobacco products from eighteen to twenty-one years. The Further Consolidated Appropriations Act, 2020 (H.R. 1865) included a provision amending section 906(d) of the Federal Food, Drug, and Cosmetic Act to increase the federal minimum age to purchase tobacco products from eighteen to twenty-one, and to add a provision making it unlawful for any retailer to sell a tobacco product to any person younger than twenty-one years of age. See 360,064 Guidance Ctp, April 30, 2020 — Enforcement Priorities for Electronic Nicotine Delivery Systems (ends) and Other Deemed Products On the Market Without Premarket Authorization (revised), Food Drug Cosm. L. Rep. P 360064 (available at https://www.fda.gov/regulatory-information/search-fda-guidance-documents/enforcement-priorities-electronic-nicotine-delivery-system-ends-and-other-deemed-products-market).
9 Cf. Thomas v. State, 614 So. 2d at 469-70 (concluding that a city could not enforce its ordinance requiring safety equipment on bicycles ridden in the city by arresting violators where the state statute imposed non-criminal penalties for similar conduct).
10 Thus, section 743.07, Florida Statutes (pertaining to the “[r]ights, privileges, and obligations of persons 18 years of age or older”) is not implicated by a proposal to regulate by ordinance the sale of vapor generating electronic devices to persons between the ages of eighteen and twenty.

11 “[S]tate laws are preempted when they conflict with federal law.” Arizona v. United States, 567 U.S. 387, 399–400 (2012). “This includes cases where ‘compliance with both federal and state regulations is a physical impossibility,’...and those instances where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Id. (quoting from Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–143 (1963); Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (additional citations omitted).
12 However, this office has previously opined--and the Florida Supreme Court has agreed--that, in enacting concurrent municipal regulations, “ordinance penalties may not exceed state penalties for similar or identical offenses.” Thomas v. State, 614 So. 2d 468, 473 (Fla. 1993) (citing Op. Att'y Gen. Fla. 089-24 (1989); Op. Att'y Gen. Fla. 081-76 ( 1981)); see also Phantom of Clearwater, Inc. v. Pinellas Cty., 894 So. 2d 1011, 1021 (Fla. 2d DCA 2005) (“The final sentence of this provision, however, which provides that the sanctions in section 62–82(1), as amended, “are in addition to any criminal penalty which is available under the provisions of Chapter 791,” presents a conflict.”).
13 See Laborers' Int'l Union of N. Am., Local 478 v. Burroughs, 541 So. 2d 1160, 1161 (Fla.1989) (“Putting it another way, a conflict exists when two legislative enactments ‘cannot co-exist.’”) (quoting Laborers' Int'l Union of N. Am., Local 478 v. Burroughs, 522 So. 2d 852, 856 (Fla. 3d DCA 1987)) (citation omitted).