This document includes House Floor Amendments incorporated into the bill on Thu, Mar 1, 2018 at 9:43 AM by lerror.
This document includes Senate 2nd and 3rd Reading Floor Amendments incorporated into the bill on Wed, Mar 7, 2018 at 12:04 PM by lpoole.
Representative Bradley G. Last proposes the following substitute bill:


1     
TOBACCO REGULATIONS AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Bradley G. Last

5     
Senate Sponsor: Evan J. Vickers

6     

7     LONG TITLE
8     General Description:
9          This bill establishes new requirements for the licensing of a tobacco retailer and
10     amends the definition of smoking.
11     Highlighted Provisions:
12          This bill:
13          ▸     amends municipal and county business license practices for a retail tobacco
14     specialty business;
15          ▸     amends the definition of smoking in the Utah Indoor Clean Air Act;
16          ▸     requires a tobacco retailer to obtain a permit from the local health department;
17          ▸     establishes requirements for a tobacco retail permit application;
18          ▸     establishes the standards that a local health department shall apply when
19     determining whether to issue a permit to a tobacco retailer;
20          ▸     incorporates civil penalties for tobacco sales to underage persons into the provisions
21     relating to a tobacco retail permit;
22          ▸     provides penalties for violations of tobacco permitting requirements; and
23          ▸     changes the fee provisions for certain tax commission licenses for cigarettes,
24     tobacco products, and electronic cigarette products.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:
28          This bill provides a special effective date.
29     Utah Code Sections Affected:
30     AMENDS:
31          10-8-41.6, as enacted by Laws of Utah 2012, Chapter 154
32          17-50-333, as enacted by Laws of Utah 2012, Chapter 154
33          26-38-2, as last amended by Laws of Utah 2017, Chapter 455
34          59-14-201, as last amended by Laws of Utah 2013, Chapter 148
35          59-14-803, as enacted by Laws of Utah 2015, Chapter 132
36          76-10-105.1, as last amended by Laws of Utah 2015, Chapters 66 and 132
37          77-39-101, as last amended by Laws of Utah 2010, Chapters 114 and 276
38     ENACTS:
39          26-62-101, Utah Code Annotated 1953
40          26-62-103, Utah Code Annotated 1953
41          26-62-201, Utah Code Annotated 1953
42          26-62-202, Utah Code Annotated 1953
43          26-62-203, Utah Code Annotated 1953
44          26-62-204, Utah Code Annotated 1953
45          26-62-205, Utah Code Annotated 1953
46          26-62-301, Utah Code Annotated 1953
47          26-62-303, Utah Code Annotated 1953
48          26A-1-128, Utah Code Annotated 1953
49     RENUMBERS AND AMENDS:
50          26-62-102, (Renumbered from 26-42-102, as last amended by Laws of Utah 2015,
51     Chapter 132)
52          26-62-302, (Renumbered from 26-42-104, as last amended by Laws of Utah 2008,
53     Chapter 382)
54          26-62-304, (Renumbered from 26-42-105, as enacted by Laws of Utah 1998, Chapter
55     319)
56          26-62-305, (Renumbered from 26-42-103, as last amended by Laws of Utah 2015,
57     Chapter 132)
58          26-62-306, (Renumbered from 26-42-106, as enacted by Laws of Utah 1998, Chapter
59     319)
60          26-62-307, (Renumbered from 26-42-107, as last amended by Laws of Utah 2015,
61     Chapter 132)
62     REPEALS:
63          26-42-101, as enacted by Laws of Utah 1998, Chapter 319
64          59-14-203.5, as last amended by Laws of Utah 2011, Chapter 96
65          59-14-301.5, as last amended by Laws of Utah 2011, Chapter 96
66     

67     Be it enacted by the Legislature of the state of Utah:
68          Section 1. Section 10-8-41.6 is amended to read:
69          10-8-41.6. Regulation of retail tobacco specialty business.
70          (1) As used in this section:
71          (a) "Community location" means:
72          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
73          (ii) a licensed child-care facility or preschool;
74          (iii) a trade or technical school;
75          (iv) a church;
76          (v) a public library;
77          (vi) a public playground;
78          (vii) a public park;
79          (viii) a youth center or other space used primarily for youth oriented activities;
80          (ix) a public recreational facility; [or]
81          (x) a public arcade[.]; or
82          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
83          (b) "Department" means the Department of Health, created in Section 26-1-4.
84          (c) "Local health department" means the same as that term is defined in Section
85     26A-1-102.
86          (d) "Permittee" means a person licensed under this section to conduct business as a
87     retail tobacco specialty business.
88          [(b)] (e) "Retail tobacco specialty business" means a commercial establishment in
89     which:
90          (i) the sale of tobacco products accounts for more than 35% of the total
90a      Ĥ→ [annual] quarterly ←Ĥ gross
91     receipts for the establishment;
92          [(ii) food and beverage products, excluding gasoline sales, is less than 45% of the total
93     annual gross receipts for the establishment; and]
94          [(iii) the establishment is not licensed as a pharmacy under Title 58, Chapter 17b,
95     Pharmacy Practice Act.]
96          Ĥ→ [(ii) the name of the business evidences the business as a retail tobacco specialty
97     business;]
98           [(iii)] (ii) ←Ĥ 20% or more of the public retail floor space is allocated to the offer,
98a     display, or
99     storage of tobacco products;
100          Ĥ→ [(iv)] (iii) ←Ĥ 20% or more of the total shelf space is allocated to the offer,
100a     display, or storage of
101     tobacco products; or
102          Ĥ→ [(v)] (iv) ←Ĥ the retail space features a self-service display for tobacco products.
103          (f) "Self-service display" means the same as that term is defined in Section
104     76-10-105.1.
105          [(c)] (g) "Tobacco product" means:
106          (i) any cigar, cigarette, or electronic cigarette, as those terms are defined in Section
107     76-10-101;
108          (ii) a tobacco product, as that term is defined in Section 59-14-102, including:
109          (A) chewing tobacco; or
110          (B) any substitute for a tobacco product, including flavoring or additives to tobacco;
111     and
112          (iii) tobacco paraphernalia, as that term is defined in Section 76-10-104.1.
113          (2) The regulation of a retail tobacco specialty business is an exercise of the police
114     powers of the state, and through delegation, to other governmental entities.
115          [(3) (a) Except as provided in Subsection (7), and beginning July 1, 2012, a
116     municipality shall require an entity to be licensed as a retail tobacco specialty business to
117     conduct business as a retail tobacco specialty business in a municipality.]
118          (3) (a) A person may not operate a retail tobacco specialty business in a municipality
119     unless the person obtains a license from the municipality in which the retail tobacco specialty
120     business is located.
121          (b) A municipality may only issue a retail tobacco specialty business license to [an
122     entity] a person if the [entity] person complies with the provisions of [Subsection] Subsections
123     (4) and (5).
124          [(4) Except as provided in Subsection (7), and beginning July 1, 2012, a business entity
125     that conducts a retail tobacco specialty business in a municipality shall be licensed by the
126     municipality as a retail tobacco specialty business.]
127          [(5)] (4) (a) [A] Except as provided in Subsection (7), a municipality may not issue a
128     license [to] for a person to conduct business as a retail tobacco specialty business if [it] the
129     retail tobacco specialty business is located within:
130          (i) 1,000 feet of a community location;
131          (ii) 600 feet of another retail tobacco specialty business; or
132          (iii) 600 feet from property used or zoned for:
133          (A) agriculture use; or
134          (B) residential use.
135          (b) For purposes of Subsection [(5)] (4)(a), the proximity requirements shall be
136     measured in a straight line from the nearest entrance of the retail tobacco specialty business to
137     the nearest property boundary of [the community location, or agricultural or residential use] a
138     location described in Subsections (4)(a)(i) through (iii), without regard to intervening structures
139     or zoning districts.
140          (5) (a) Except as provided in Subsection (5)(b), beginning July 1, 2018, a municipality
141     may not issue or renew a license for a person to conduct business as a retail tobacco specialty
142     business until the person provides the municipality with proof that the retail tobacco specialty
143     business has:
144          (i) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
145     62, Tobacco Retail Permit, by the local health department having jurisdiction over the area in
146     which the retail tobacco specialty business is located; and
147          (ii) a valid license to sell tobacco products from the State Tax Commission.
148          (b) A person that was licensed to conduct business as a retail tobacco specialty
149     business in a municipality before July 1, 2018, shall obtain a permit from a local health
150     department under Title 26, Chapter 62, Tobacco Retail Permit, on or before January 1, 2019.
151          (6) (a) Nothing in this section:
152          (i) requires a municipality to issue a [business license to a] retail tobacco specialty
153     business license; or
154          (ii) prohibits a municipality from adopting more restrictive requirements on a person
155     seeking a license or renewal of a license to conduct business as a retail tobacco specialty
156     business [than provided for in this section].
157          (b) A municipality may suspend or revoke a retail tobacco specialty business license
158     issued under this section:
159          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
160     Part 16, Pattern of Unlawful Activity Act;
161          (ii) if a licensee violates the regulations restricting the sale and distribution of
162     cigarettes and smokeless tobacco to protect children and adolescents issued by the United
163     States Food and Drug Administration, 21 C.F.R. Part 1140; [or]
164          (iii) upon the recommendation of the department or a local health department under
165     Title 26, Chapter 62, Tobacco Retail Permit; or
166          [(iii)] (iv) under any other [provisions] provision of state law or local ordinance.
167          (7) (a) In accordance with Subsection (7)(b), a retail tobacco specialty business
167a      Ĥ→ [[] that
168     has a business license and is operating Ŝ→ [lawfully] ←Ŝ in a municipality Ŝ→ in accordance
168a     with all applicable laws except for the requirement in Subsection (4), ←Ŝ on or before
168b     Ŝ→ [ May 8, 2012] December 31, 2015 ←Ŝ , is
169     exempt from [Subsections (4) and (5)] Subsection (4) Ŝ→. ←Ŝ []] [is exempt from Subsection
169a     (4) if the person obtained the
170     license to operate the retail tobacco specialty business before July 1, 2018.] ←Ĥ
171          (b) A retail tobacco specialty business may maintain an exemption under Subsection
172     (7)(a) if:
173          (i) the retail tobacco specialty business license is renewed continuously without
174     [relapse] lapse or permanent revocation;
175          (ii) the retail tobacco specialty business [is] does not [closed] close for business or
176     otherwise [suspends] suspend the sale of tobacco products for more than 60 consecutive days;
177          (iii) the retail tobacco specialty business does not substantially change the business
178     premises or [its] business operation; and
179          (iv) the retail tobacco specialty business maintains the right to operate under the terms
180     of other applicable laws, including:
181          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
182          (B) zoning ordinances[,];
183          (C) building codes[,]; and [the]
184          (D) the requirements of a retail tobacco specialty business license issued [prior to]
185     before Ŝ→ [May 8, 2012] December 31, 2015 ←Ŝ .
186          Section 2. Section 17-50-333 is amended to read:
187          17-50-333. Regulation of retail tobacco specialty business.
188          (1) As used in this section:
189          (a) "Community location" means:
190          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
191          (ii) a licensed child-care facility or preschool;
192          (iii) a trade or technical school;
193          (iv) a church;
194          (v) a public library;
195          (vi) a public playground;
196          (vii) a public park;
197          (viii) a youth center or other space used primarily for youth oriented activities;
198          (ix) a public recreational facility; [or]
199          (x) a public arcade[.]; or
200          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
201          (b) "Department" means the Department of Health, created in Section 26-1-4.
202          (c) "Licensee" means a person licensed under this section to conduct business as a
203     retail tobacco specialty business.
204          (d) "Local health department" means the same as that term is defined in Section
205     26A-1-102.
206          [(b)] (e) "Retail tobacco specialty business" means a commercial establishment in
207     which:
208          (i) the sale of tobacco products accounts for more than 35% of the total
208a      Ĥ→ [annual] quarterly ←Ĥ gross
209     receipts for the establishment;
210          [(ii) food and beverage products, excluding gasoline sales, is less than 45% of the total
211     annual gross receipts for the establishment; and]
212          [(iii) the establishment is not licensed as a pharmacy under Title 58, Chapter 17b,
213     Pharmacy Practice Act.]
214          Ĥ→ [(ii) the name of the business evidences the business as a retail tobacco specialty
215     business;]
216           [(iii)] (ii) ←Ĥ 20% or more of the public retail floor space is allocated to the offer,
216a      display, or
217     storage of tobacco products;
218          Ĥ→ [(iv)] (iii) ←Ĥ 20% or more of the total shelf space is allocated to the offer,
218a     display, or storage of
219     tobacco products; or
220          Ĥ→ [(v)] (iv) ←Ĥ the retail space features a self-service display for tobacco products.
221          (f) "Self-service display" means the same as that term is defined in Section
222     76-10-105.1.
223          [(c)] (g) "Tobacco product" means:
224          (i) any cigar, cigarette, or electronic cigarette as those terms are defined in Section
225     76-10-101;
226          (ii) a tobacco product as that term is defined in Section 59-14-102, including:
227          (A) chewing tobacco; or
228          (B) any substitute for a tobacco product, including flavoring or additives to tobacco;
229     and
230          (iii) tobacco paraphernalia as that term is defined in Section 76-10-104.1.
231          (2) The regulation of a retail tobacco specialty business is an exercise of the police
232     powers of the state, and through delegation, to other governmental entities.
233          [(3) (a) Except as provided in Subsection (7), and beginning July 1, 2012, a county
234     shall require an entity to be licensed as a retail tobacco specialty business to conduct business
235     as a retail tobacco specialty business in a county.]
236          (3) (a) A person may not operate a retail tobacco specialty business in a county unless
237     the person obtains a license from the county in which the retail tobacco specialty business is
238     located.
239          (b) A county may only issue a retail tobacco specialty business license to [an entity] a
240     person if the [entity] person complies with the provisions of [Subsection] Subsections (4) and
241     (5).
242          [(4) Except as provided in Subsection (7), and beginning July 1, 2012, a business entity
243     that conducts a retail tobacco specialty business in a county shall be licensed by the county as a
244     retail tobacco specialty business.]
245          [(5)] (4) (a) [A] Except as provided in Subsection (7), a county may not issue a license
246     [to] for a person to conduct business as a retail tobacco specialty business if [it] the retail
247     tobacco specialty business is located within:
248          (i) 1,000 feet of a community location;
249          (ii) 600 feet of another retail tobacco specialty business; or
250          (iii) 600 feet from property used or zoned for:
251          (A) agriculture use; or
252          (B) residential use.
253          (b) For purposes of Subsection [(5)] (4)(a), the proximity requirements shall be
254     measured in a straight line from the nearest entrance of the retail tobacco specialty business to
255     the nearest property boundary of [the community location, or agricultural or residential use] a
256     location described in Subsections (4)(a)(i) through (iii), without regard to intervening structures
257     or zoning districts.
258          (5) (a) Except as provided in Subsection (5)(b), beginning July 1, 2018, a county may
259     not issue or renew a license for a person to conduct business as a retail tobacco specialty
260     business until the person provides the county with proof that the retail tobacco specialty
261     business has:
262          (i) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
263     62, Tobacco Retail Permit, by the local health department having jurisdiction over the area in
264     which the retail tobacco specialty business is located; and
265          (ii) a valid license to sell tobacco products from the State Tax Commission.
266          (b) A person that was licensed to conduct business as a retail tobacco specialty
267     business in a county before July 1, 2018, shall obtain a permit from a local health department
268     under Title 26, Chapter 62, Tobacco Retail Permit, on or before January 1, 2019.
269          (6) (a) Nothing in this section:
270          (i) requires a county to issue a [business license to a] retail tobacco specialty business
271     license; or
272          (ii) prohibits a county from adopting more restrictive requirements on a person seeking
273     a license or renewal of a license to conduct business as a retail tobacco specialty business [than
274     provided for in this section].
275          (b) A county may suspend or revoke a retail tobacco specialty business license issued
276     under this section:
277          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
278     Part 16, Pattern of Unlawful Activity Act;
279          (ii) if a licensee violates the regulations restricting the sale and distribution of
280     cigarettes and smokeless tobacco to protect children and adolescents issued by the United
281     States Food and Drug Administration, 21 C.F.R. Part 1140; [or]
282          (iii) upon the recommendation of the department or a local health department under
283     Title 26, Chapter 62, Tobacco Retail Permit; or
284          [(iii)] (iv) under any other [provisions] provision of state law or local ordinance.
285          (7) (a) In accordance with Subsection (7)(b), a retail tobacco specialty business
285a     Ĥ→ [[] that
286     has a business license and is operating Ŝ→ [lawfully] ←Ŝ in a county Ŝ→ in accordance with
286a     all applicable laws except for the requirement in Subsection (4), ←Ŝ on or before Ŝ→ [May 8,
286b     2012] December 31, 2015 ←Ŝ , is
287     exempt from [Subsections (4) and (5)] Subsection (4) Ŝ→.←Ŝ []] [is exempt from Subsection
287a     (4) if the person obtained the
288     license to operate the retail tobacco specialty business before July 1, 2018.] ←Ĥ
289          (b) A retail tobacco specialty business may maintain an exemption under Subsection
290     (7)(a) if:
291          (i) the retail tobacco specialty business license is renewed continuously without
292     [relapse] lapse or permanent revocation;
293          (ii) the retail tobacco specialty business [is] does not [closed] close for business or
294     otherwise [suspends] suspend the sale of tobacco products for more than 60 consecutive days;
295          (iii) the retail tobacco specialty business does not substantially change the business
296     premises or [its] business operation; and
297          (iv) the retail tobacco specialty business maintains the right to operate under the terms
298     of other applicable laws, including:
299          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
300          (B) zoning ordinances[,];
301          (C) building codes[,]; and [the]
302          (D) the requirements of a retail tobacco specialty business license issued [prior to]
303     before Ŝ→ [May 8, 2012] December 31, 2015 ←Ŝ .
304          Section 3. Section 26-38-2 is amended to read:
305          26-38-2. Definitions.
306          As used in this chapter:
307          (1) "E-cigarette":
308          (a) means any electronic oral device:
309          (i) that provides an aerosol or a vapor of nicotine or other substance; and
310          (ii) which simulates smoking through its use or through inhalation of the device; and
311          (b) includes an oral device that is:
312          (i) composed of a heating element, battery, or electronic circuit; and
313          (ii) marketed, manufactured, distributed, or sold as:
314          (A) an e-cigarette;
315          (B) e-cigar;
316          (C) e-pipe; or
317          (D) any other product name or descriptor, if the function of the product meets the
318     definition of Subsection (1)(a).
319          (2) "Non-tobacco shisha" means any product that:
320          (a) does not contain tobacco or nicotine; and
321          (b) is smoked or intended to be smoked in a hookah or water pipe.
322          [(2)] (3) "Place of public access" means any enclosed indoor place of business,
323     commerce, banking, financial service, or other service-related activity, whether publicly or
324     privately owned and whether operated for profit or not, to which persons not employed at the
325     place of public access have general and regular access or which the public uses, including:
326          (a) buildings, offices, shops, elevators, or restrooms;
327          (b) means of transportation or common carrier waiting rooms;
328          (c) restaurants, cafes, or cafeterias;
329          (d) taverns as defined in Section 32B-1-102, or cabarets;
330          (e) shopping malls, retail stores, grocery stores, or arcades;
331          (f) libraries, theaters, concert halls, museums, art galleries, planetariums, historical
332     sites, auditoriums, or arenas;
333          (g) barber shops, hair salons, or laundromats;
334          (h) sports or fitness facilities;
335          (i) common areas of nursing homes, hospitals, resorts, hotels, motels, "bed and
336     breakfast" lodging facilities, and other similar lodging facilities, including the lobbies,
337     hallways, elevators, restaurants, cafeterias, other designated dining areas, and restrooms of any
338     of these;
339          (j) (i) any child care facility or program subject to licensure or certification under this
340     title, including those operated in private homes, when any child cared for under that license is
341     present; and
342          (ii) any child care, other than child care as defined in Section 26-39-102, that is not
343     subject to licensure or certification under this title, when any child cared for by the provider,
344     other than the child of the provider, is present;
345          (k) public or private elementary or secondary school buildings and educational
346     facilities or the property on which those facilities are located;
347          (l) any building owned, rented, leased, or otherwise operated by a social, fraternal, or
348     religious organization when used solely by the organization members or their guests or
349     families;
350          (m) any facility rented or leased for private functions from which the general public is
351     excluded and arrangements for the function are under the control of the function sponsor;
352          (n) any workplace that is not a place of public access or a publicly owned building or
353     office but has one or more employees who are not owner-operators of the business;
354          (o) any area where the proprietor or manager of the area has posted a conspicuous sign
355     stating "no smoking", "thank you for not smoking", or similar statement; and
356          (p) a holder of a bar establishment license, as defined in Section 32B-1-102.
357          [(3)] (4) "Publicly owned building or office" means any enclosed indoor place or
358     portion of a place owned, leased, or rented by any state, county, or municipal government, or
359     by any agency supported by appropriation of, or by contracts or grants from, funds derived
360     from the collection of federal, state, county, or municipal taxes.
361          (5) "Shisha" means any product that:
362          (a) contains tobacco or nicotine; and
363          (b) is smoked or intended to be smoked in a hookah or water pipe.
364          [(4)] (6) "Smoking" means:
365          (a) the possession of any lighted or heated tobacco product in any form;
366          (b) inhaling, exhaling, burning, or [heating a substance containing tobacco or nicotine
367     intended for inhalation through a] carrying any lighted or heated cigar, cigarette, pipe, or
368     hookah[;] that contains:
369          (i) tobacco or any plant product intended for inhalation;
370          (ii) shisha or non-tobacco shisha;
371          (iii) nicotine;
372          (iv) a natural or synthetic tobacco substitute; or
373          (v) a natural or synthetic flavored tobacco product;
374          (c) [except as provided in Section 26-38-2.6,] using an e-cigarette; or
375          (d) using an oral smoking device intended to circumvent the prohibition of smoking in
376     this chapter.
377          Section 4. Section 26-62-101 is enacted to read:
378     
CHAPTER 62. TOBACCO RETAIL PERMIT

379     
Part 1. General Provisions

380          26-62-101. Title.
381          This chapter is known as "Tobacco Retail Permit."
382          Section 5. Section 26-62-102, which is renumbered from Section 26-42-102 is
383     renumbered and amended to read:
384          [26-42-102].      26-62-102. Definitions.
385          As used in this chapter:
386          [(1) "Commission" means the Utah State Tax Commission.]
387          (1) "Community location" means the same as that term is defined:
388          (a) as it relates to a municipality, in Section 10-8-41.6; and
389          (b) as it relates to a county, in Section 17-50-333.
390          (2) "Employee" means an employee of a [licensee] tobacco retailer.
391          (3) "Enforcing agency" means the state Department of Health, or any local health
392     department enforcing the provisions of this chapter.
393          [(4) "Licensee" means a person licensed:]
394          [(a) under Section 59-14-201 to sell cigarettes at retail;]
395          [(b) under Section 59-14-301 to sell tobacco products at retail; or]
396          [(c) under Section 59-14-803 to sell an electronic cigarette product.]
397          (4) "General tobacco retailer" means a tobacco retailer that is not a retail tobacco
398     specialty business.
399          (5) "Local health department" means the same as that term is defined in Section
400     26A-1-102.
401          (6) "Permit" means a tobacco retail permit issued under this chapter.
402          (7) "Retail tobacco specialty business" means the same as that term is defined:
403          (a) as it relates to a municipality, in Section 10-8-41.6; and
404          (b) as it relates to a county, in Section 17-50-333.
405          [(5)] (8) ["License to sell tobacco" or "license"] "Tax commission license" means a
406     license issued by the State Tax Commission under:
407          (a) [under] Section 59-14-201 to sell cigarettes at retail;
408          (b) [under] Section 59-14-301 to sell tobacco products at retail; or
409          (c) [under] Section 59-14-803 to sell an electronic cigarette product.
410          [(6) "Tobacco" means:]
411          [(a) a cigarette or a tobacco product, as defined in Section 59-14-102; or]
412          [(b) an electronic cigarette product, as defined in Section 59-14-802.]
413          (9) "Tobacco product" means:
414          (a) a cigar, cigarette, or electronic cigarette as those terms are defined in Section
415     76-10-101;
416          (b) a tobacco product as that term is defined in Section 59-14-102, including:
417          (i) chewing tobacco; or
418          (ii) any substitute for a tobacco product, including flavoring or additives to tobacco; or
419          (c) tobacco paraphernalia as that term is defined in Section 76-10-104.1.
420          (10) "Tobacco retailer" means a person that is required to obtain a tax commission
421     license.
422          Section 6. Section 26-62-103 is enacted to read:
423          26-62-103. Regulation of tobacco retailers.
424          The regulation of a tobacco retailer is an exercise of the police powers of the state, and
425     through delegation, to other governmental entities.
426          Section 7. Section 26-62-201 is enacted to read:
427     
Part 2. Permit Requirements

428          26-62-201. Permitting requirement.
429          (1) (a) Beginning July 1, 2018, a tobacco retailer shall hold a valid tobacco retail
430     permit issued in accordance with this chapter by the local health department with jurisdiction
431     over the physical location where the tobacco retailer operates.
432          (b) A tobacco retailer without a valid permit may not:
433          (i) place tobacco products in public view;
434          (ii) display any advertisement related to tobacco products that promotes the sale,
435     distribution, or use of those products; or
436          (iii) sell, offer for sale, or offer to exchange for any form of consideration, tobacco or
437     tobacco products.
438          (2) A local health department may issue a permit under this chapter for a tobacco
439     retailer in the classification of:
440          (a) a general tobacco retailer; or
441          (b) a retail tobacco specialty business.
442          (3) A permit under this chapter is:
443          (a) valid only for one physical location, including a vending machine;
444          (b) valid only at one fixed business address; and
445          (c) if multiple tobacco retailers are at the same address, separately required for each
446     tobacco retailer.
447          (4) Notwithstanding the requirement in Subsection (1), a person that holds a tax
448     commission license that was valid on July 1, 2018:
449          (a) may operate without a permit under this chapter until December 31, 2018; and
450          (b) shall obtain a permit from a local health department under this chapter before
451     January 1, 2019.
452          Section 8. Section 26-62-202 is enacted to read:
453          26-62-202. Permit application.
454          (1) A local health department shall issue a permit under this chapter for a tobacco
455     retailer if the local health department determines that the applicant:
456          (a) accurately provided all information required under Subsection (3) and, if applicable,
457     Subsection (4); and
458          (b) meets all requirements for a permit under this chapter.
459          (2) An applicant for a permit shall:
460          (a) submit an application described in Subsection (3) to the local health department
461     with jurisdiction over the area where the tobacco retailer is located; and
462          (b) pay all applicable fees described in Section 26-62-203.
463          (3) The application for a permit shall include:
464          (a) the name, address, and telephone number of each proprietor;
465          (b) the name and mailing address of each proprietor authorized to receive
466     permit-related communication and notices;
467          (c) the business name, address, and telephone number of the single, fixed location for
468     which a permit is sought;
469          (d) evidence that the location for which a permit is sought has a valid tax commission
470     license;
471          (e) information regarding whether, in the past 24 months, any proprietor of the tobacco
472     retailer has been determined to have violated, or has been a proprietor at a location that has
473     been determined to have violated:
474          (i) a provision of this chapter;
475          (ii) Chapter 38, Utah Indoor Clean Air Act;
476          (iii) Title 76, Chapter 10, Part 1, Cigarettes and Tobacco and Psychotoxic Chemical
477     Solvents;
478          (iv) Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
479          (v) regulations restricting the sale and distribution of cigarettes and smokeless tobacco
480     issued by the United States Food and Drug Administration, 21 C.F.R. Part 1140; or
481          (vi) any other provision of state law or local ordinance regarding the sale, marketing, or
482     distribution of tobacco products; and
483          (f) the dates of all violations disclosed under this Subsection (3).
484          (4) (a) In addition to the information described in Subsection (3), an applicant for a
485     retail tobacco specialty business permit shall include evidence showing whether the business is
486     located within:
487          (i) 1,000 feet of a community location;
488          (ii) 600 feet of another retail tobacco specialty business; or
489          (iii) 600 feet of property used or zoned for agricultural or residential use.
490          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
491     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
492     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
493     to intervening structures or zoning districts.
494          (5) The department or a local health department may not deny a permit to a retail
495     tobacco specialty business under Subsection (4) if the person obtained a license to operate the
496     retail tobacco specialty business before Ŝ→ [July 1, 2018] December 31, 2015 ←Ŝ , from:
497          (a) a municipality under Section 10-8-41.6; or
498          (b) a county under Section 17-50-333.
499          (6) (a) The department shall establish by rule made in accordance with Title 63G,
500     Chapter 3, Utah Administrative Rulemaking Act, a permit process for local health departments
501     in accordance with this chapter.
502          (b) The permit process established by the department under Subsection (6)(a) may not
503     require any information in an application that is not required by this section.
504          Section 9. Section 26-62-203 is enacted to read:
505          26-62-203. Permit term and fees.
506          (1) (a) The term of a permit issued under this chapter to a retail tobacco specialty
507     business is one year.
508          (b) The term of a permit issued under this chapter to a general tobacco retailer is two
509     years.
510          (2) (a) A local health department may not issue a permit under this chapter until the
511     applicant has paid a permit fee to the local health department of:
512          (i) $30 for a new permit;
513          (ii) $20 for a permit renewal; or
514          (iii) $30 for reinstatement of a permit that has been revoked, suspended, or allowed to
515     expire.
516          (b) A local health department that collects fees under Subsection (2)(a) shall use the
517     fees to administer the permit requirements under this chapter.
518          (c) In addition to the fee described in Subsection (2)(a), a local health department may
519     establish and collect a fee to perform a plan review for a retail tobacco specialty business
520     permit.
521          (3) A permit holder may apply for a renewal of a permit no earlier than 30 days before
522     the day on which the permit expires.
523          (4) A tobacco retailer that fails to renew a permit before the permit expires may apply
524     to reinstate the permit by submitting to the local health department:
525          (a) the information required in Subsection 26-62-202(3) and, if applicable, Subsection
526     26-62-202(4);
527          (b) the fee for the reinstatement of a permit; and
528          (c) a signed affidavit affirming that the tobacco retailer has not violated the
529     prohibitions in Subsection 26-62-201(1)(b) after the permit expired.
530          Section 10. Section 26-62-204 is enacted to read:
531          26-62-204. Permit nontransferable.
532          (1) A permit is nontransferable.
533          (2) If the information described in Subsection 26-62-202(3) changes, a tobacco retailer:
534          (a) may not renew the permit; and
535          (b) shall apply for a new permit no later than 15 days after the information in
536     Subsection 26-62-202(3) changes.
537          Section 11. Section 26-62-205 is enacted to read:
538          26-62-205. Permit requirements for a retail tobacco specialty business.
539          A retail tobacco specialty business shall:
540          (1) except as provided in Subsection 76-10-105.1(4), prohibit any individual under 19
541     years of age from entering the business; and
542          (2) prominently display at the retail tobacco specialty business a sign on the public
543     entrance of the business that communicates the prohibition in Subsection 76-10-105.1(4).
544          Section 12. Section 26-62-301 is enacted to read:
545     
Part 3. Enforcement

546          26-62-301. Permit violation.
547          A person is in violation of the permit issued under this chapter if the person violates:
548          (1) a provision of this chapter;
549          (2) a provision of licensing laws under Section 10-8-41.6 or Section 17-50-333;
550          (3) a provision of Title 76, Chapter 10, Part 1, Cigarettes and Tobacco and Psychotoxic
551     Chemical Solvents;
552          (4) a provision of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
553          (5) a regulation restricting the sale and distribution of cigarettes and smokeless tobacco
554     issued by the United States Food and Drug Administration under 21 C.F.R. Part 1140; or
555          (6) any other provision of state law or local ordinance regarding the sale, marketing, or
556     distribution of tobacco products.
557          Section 13. Section 26-62-302, which is renumbered from Section 26-42-104 is
558     renumbered and amended to read:
559          [26-42-104].      26-62-302. Enforcement by state and local health
560     departments.
561          The [state Department of Health and the] department and local health departments shall
562     enforce this chapter under the procedures of Title 63G, Chapter 4, Administrative Procedures
563     Act, as an informal adjudicative proceeding, including:
564          (1) notifying [licensees] a tobacco retailer of alleged violations of [Section 26-42-103]
565     this chapter;
566          (2) conducting hearings;
567          (3) determining violations of this chapter; and
568          (4) imposing civil [monetary] administrative penalties.
569          Section 14. Section 26-62-303 is enacted to read:
570          26-62-303. Inspection of retail tobacco businesses.
571          The department or a local health department may inspect a tobacco retailer to determine
572     whether the tobacco retailer:
573          (1) continues to meet the qualifications for the permit issued under this chapter;
574          (2) if applicable, continues to meet the requirements for a retail tobacco specialty
575     business license issued under Section 10-8-41.6 or Section 17-50-333;
576          (3) engaged in a pattern of unlawful activity under Title 76, Chapter 10, Part 16,
577     Pattern of Unlawful Activity Act;
578          (4) violated any of the regulations restricting the sale and distribution of cigarettes and
579     smokeless tobacco issued by the United States Food and Drug Administration under 21 C.F.R.
580     Part 1140; or
581          (5) has violated any other provision of state law or local ordinance.
582          Section 15. Section 26-62-304, which is renumbered from Section 26-42-105 is
583     renumbered and amended to read:
584          [26-42-105].      26-62-304. Hearing -- Evidence of criminal conviction.
585          (1) At a civil hearing conducted under Section [26-42-104] 26-62-302, evidence of the
586     final criminal conviction of a [licensee] tobacco retailer or employee for violation of Section
587     76-10-104 at the same location and within the same time period as the location and time period
588     alleged in the civil hearing for violation of [Section 26-42-103] this chapter for sale of tobacco
589     products to a person under the age of 19 is prima facie evidence of a violation of [Section
590     26-42-103] this chapter.
591          (2) If the [licensee has been] tobacco retailer is convicted of violating Section
592     76-10-104 [prior to a finding of a violation of Section 26-42-103, the licensee], the enforcing
593     agency:
594          (a) may not [be assessed a] assess an additional monetary penalty under this chapter for
595     the same offense for which the conviction was obtained[.]; and
596          (b) may revoke or suspend a permit in accordance with Section 26-62-305.
597          Section 16. Section 26-62-305, which is renumbered from Section 26-42-103 is
598     renumbered and amended to read:
599          [26-42-103].      26-62-305. Penalties.
600          (1) (a) If, following an inspection by an enforcing agency, or an investigation or
601     issuance of a citation or information under Section 77-39-101, an enforcing agency determines
602     [under Section 26-42-104 that a licensee or any employee has sold tobacco to a person younger
603     than 19 years of age, as prohibited by Section 76-10-104,] that a person has violated the terms
604     of a permit issued under this chapter, the enforcing agency may impose [upon the licensee the
605     following administrative penalties:] the penalties described in this section.
606          (b) If multiple violations are found in a single inspection or investigation, only one
607     violation shall count toward the penalties described in this section.
608          [(a) upon the first violation, a penalty of not more than $300;]
609          [(b) upon a second violation at the same retail location, and within 12 months of the
610     first violation, a penalty of not more than $750; and]
611          [(c) upon a third or subsequent violation at the same retail location and within 12
612     months of the first violation, a penalty of not more than $1,000.]
613          [(2) The enforcing agency shall notify the commission in writing of any order or order
614     of default finding a violation of Subsection (1) which is a third or fourth violation.]
615          [(3) The commission, upon receipt of the written notification under Subsection (2),
616     shall take action under Section 59-14-203.5 or 59-14-301.5 against the license to sell tobacco:]
617          [(a) by suspending the licensee's license to sell tobacco at that location for not more
618     than 30 days, upon receipt of notification of a third violation under Subsection (1)(c); and]
619          [(b) by revoking the license to sell tobacco at that location held by the licensee,
620     including any license under suspension, upon receipt of notification of a fourth violation under
621     Subsection (1)(c).]
622          [(4) When the commission revokes a license under Subsection (3)(b), the commission
623     may not issue to the licensee, or to the business entity using the license that is revoked, a
624     license under Section 59-14-202, 59-14-301, or 59-14-803 to sell tobacco at the location for
625     which the license was issued for one year after:]
626          [(a) the day on which the time for filing an appeal of the revocation ends; or]
627          [(b) if the revocation is appealed, the day on which the decision to uphold the
628     revocation becomes final.]
629          [(5) This section does not prevent any bona fide purchaser of the business, who is not a
630     sole proprietor, director, corporate officer, or partner or other holder of significant interest in
631     the entity selling the business, from immediately applying for and obtaining a license to sell
632     tobacco.]
633          (2) (a) The administrative penalty for a first violation at a retail location is a penalty of
634     not more than $500.
635          (b) The administrative penalty for a second violation at the same retail location that
636     occurs within one year of a previous violation is a penalty of not more than $750.
637          (c) The administrative penalty for a third or subsequent violation at the same retail
638     location that occurs within two years after two or more previous violations is:
639          (i) a suspension of the retail tobacco business permit for 30 consecutive business days
640     within 60 days after the day on which the third or subsequent violation occurs; or
641          (ii) a penalty of not more than $1,000.
642          (3) The department or a local health department may:
643          (a) revoke a permit if a fourth violation occurs within two years of three previous
644     violations;
645          (b) in addition to a monetary penalty imposed under Subsection (2), suspend the permit
646     if the violation is due to a sale of tobacco products to a person under 19 years of age; and
647          (c) if applicable, recommend to a municipality or county that a retail tobacco specialty
648     business license issued under Section 10-8-41.6 or 17-50-333 be suspended or revoked.
649          (4) (a) Except when a transfer described in Subsection (5) occurs, a local health
650     department may not issue a permit to:
651          (i) a tobacco retailer for whom a permit is suspended or revoked under Subsection (3);
652     or
653          (ii) a tobacco retailer that has the same proprietor, director, corporate officer, partner,
654     or other holder of significant interest as another tobacco retailer for whom a permit is
655     suspended or revoked under Subsection (3).
656          (b) A person whose permit:
657          (i) is suspended under this section may not apply for a new permit for any other
658     tobacco retailer for a period of 12 months after the day on which an enforcing agency suspends
659     the permit; and
660          (ii) is revoked may not apply for a new permit for any tobacco retailer for a period of
661     24 months after the day on which an enforcing agency revokes the permit.
662          (5) Violations of this chapter, Section 10-8-41.6, or Section 17-50-333 that occur at a
663     tobacco retailer location shall stay on the record for that tobacco retailer location unless:
664          (a) the tobacco retailer is transferred to a new proprietor; and
665          (b) the new proprietor provides documentation to the local health department that the
666     new proprietor is acquiring the tobacco retailer in an arm's length transaction from the previous
667     proprietor.
668          Section 17. Section 26-62-306, which is renumbered from Section 26-42-106 is
669     renumbered and amended to read:
670          [26-42-106].      26-62-306. Recognition of tobacco retailer training program.
671          (1) In determining the amount of the monetary penalty to be imposed for an employee's
672     violation of [Section 26-42-103, the] this chapter, a hearing officer shall reduce the civil
673     penalty [by at least 50% if he] by at least 50% if the hearing officer determines that:
674          (a) the [licensee] tobacco retailer has implemented a documented employee training
675     program; and
676          (b) the [employee has] employees have completed that training program within 30 days
677     [of commencing] after the day on which each employee commences the duties of selling
678     tobacco products.
679          (2) (a) [If] For the first offense at a location, if the hearing officer determines under
680     Subsection (1)[, regarding a first offense at a location, that the] that the tobacco retailer licensee
681     has not implemented a documented training program with a written curriculum for employees
682     at that location regarding compliance with this chapter, the hearing officer may suspend all or a
683     portion of the [monetary penalty, contingent upon the licensee's initiating a training program
684     for employees at that location within 30 days after the hearing date.] penalty if:
685          (i) the tobacco retailer agrees to initiate a training program for employees at that
686     location; and
687          (ii) the training program begins within 30 days after the hearing officer makes a
688     determination under this Subsection (2)(a).
689          (b) If the hearing officer determines at a subsequent hearing that the [licensee] tobacco
690     retailer has not implemented the training program within the time period required under
691     Subsection (2)(a)(ii), the hearing officer shall promptly impose the suspended monetary penalty
692     [shall be promptly imposed], unless the [licensee] tobacco retailer demonstrates good cause for
693     [granting] an extension of time for implementation of the training program.
694          Section 18. Section 26-62-307, which is renumbered from Section 26-42-107 is
695     renumbered and amended to read:
696          [26-42-107].      26-62-307. Allocation of civil penalties.
697          Civil monetary penalties collected under this chapter shall be allocated as follows:
698          (1) if a local health department conducts an adjudicative proceeding under Section
699     [26-42-104] 26-62-302, the penalty shall be paid to the treasurer of the county in which the
700     violation was committed, and transferred to[:(a)] the local health department [if it conducts a
701     civil hearing under Section 26-42-104 alone; or]; and
702          [(b) in equal portions to the local health department and the other agencies that
703     participated in the hearing process;]
704          (2) if the [state Department of Health] department conducts a civil hearing under
705     Section [26-42-104] 26-62-302, the penalty shall be deposited in the state's General Fund, and
706     may be appropriated by the Legislature to the [state Department of Health] department for use
707     in enforcement of this chapter[; and].
708          [(3) if the civil penalty involves suspension or revocation of a license to sell tobacco
709     under Section 59-14-203.5, 59-14-301.5, or 59-14-803, half of the penalty shall be paid to the
710     commission, and the other half shall be allocated under Subsection (1) or (2), as appropriate.]
711          Section 19. Section 26A-1-128 is enacted to read:
712          26A-1-128. Tobacco permits -- Enforcement.
713          A local health department:
714          (1) shall enforce the requirements of Title 26, Chapter 62, Tobacco Retail Permit;
715          (2) may enforce licensing requirements for entities that hold a business license to sell
716     tobacco products under Section 10-8-41.6 or Section 17-50-333; and
717          (3) may recommend to a municipality or county that the business license of a retail
718     tobacco specialty business be suspended or revoked for a violation of Section 10-8-41.6,
719     Section 17-50-333, or Title 26, Chapter 62, Tobacco Retail Permit.
720          Section 20. Section 59-14-201 is amended to read:
721          59-14-201. License -- Application of part -- Fee -- Bond -- Exceptions.
722          (1) It is unlawful for any person in this state to manufacture, import, distribute, barter,
723     sell, exchange, or offer cigarettes for sale without first having obtained a license issued by the
724     commission under Section 59-14-202.
725          (2) Except for the tax rates described in Subsection 59-14-204(2), this part does not
726     apply to a cigarette produced from a cigarette rolling machine.
727          (3) (a) A license may not be issued for the sale of cigarettes until the applicant has paid
728     a license fee of $30 or a license renewal fee of $20, as appropriate.
729          (b) The fee for reinstatement of a license that has been revoked, suspended, or allowed
730     to expire is $30.
731          (c) Notwithstanding Subsections (3)(a) and (b), the commission may not charge a fee
732     for a license under this section for a retailer, as defined in Section 59-14-102.
733          (4) (a) A license may not be issued until the applicant files a bond with the
734     commission. The commission shall determine the form and the amount of the bond, the
735     minimum amount of which shall be $500. The bond shall be executed by the applicant as
736     principal, with a corporate surety, payable to the state and conditioned upon the faithful
737     performance of all the requirements of this chapter, including the payment of all taxes,
738     penalties, and other obligations.
739          (b) An applicant is not required to post a bond if the applicant:
740          (i) purchases during the license year only products that have the proper state stamp
741     affixed as required by this chapter; and
742          (ii) files an affidavit with the applicant's application attesting to this fact.
743          Section 21. Section 59-14-803 is amended to read:
744          59-14-803. License to sell electronic cigarette products.
745          (1) Except as provided in Subsection (2), a person may not sell, offer to sell, or
746     distribute an electronic cigarette product in Utah without first obtaining a license to sell an
747     electronic cigarette product from the commission under this section.
748          (2) A person that holds a valid license to sell cigarettes under Section 59-14-201, or a
749     person that holds a valid license to sell tobacco products under Section 59-14-301, may,
750     without obtaining a separate license to sell an electronic cigarette product under this part, sell,
751     offer to sell, or distribute an electronic cigarette product in Utah in accordance with this part.
752          (3) [Except as provided in Subsection (6), the] The commission shall issue a license to
753     sell an electronic cigarette product to a person that[: (a)] submits an application, on a form
754     created by the commission, that includes:
755          [(i)] (a) the person's name;
756          [(ii)] (b) the address of the facility where the person will sell an electronic cigarette
757     product; and
758          [(iii)] (c) any other information the commission requires to implement this chapter[;
759     and].
760          [(b) pays a fee:]
761          [(i) in the amount of $30; or]
762          [(ii) if renewing the person's license, in the amount of $20.]
763          (4) A license described in Subsection (3) is:
764          (a) valid only at one fixed business address;
765          (b) valid for three years;
766          (c) valid only for a physical location; and
767          (d) renewable if a licensee meets the criteria for licensing described in Subsection (3).
768          [(5) The commission shall, after notifying a licensee, revoke a license described in
769     Subsection (3) if an enforcing agency determines the licensee has violated a provision of:]
770          [(a) Title 26, Chapter 42, Civil Penalties for Tobacco Sales to Underage Persons; or]
771          [(b) Title 26, Chapter 57, Electronic Cigarette Regulation Act.]
772          [(6) If the commission revokes a person's license to sell an electronic cigarette product
773     under Subsection (5), the commission may not issue a license to sell an electronic cigarette
774     product, a license to sell cigarettes under Section 59-14-201, or a license to sell tobacco under
775     Section 59-14-301 to the person until one year after:]
776          [(a) the day on which the time for filing an appeal of the revocation ends, as
777     determined by the enforcing agency; or]
778          [(b) if the person appeals the enforcing agency's decision to revoke the license to sell
779     an electronic cigarette product, the day on which the enforcing agency's decision to uphold the
780     revocation is final.]
781          [(7) If the commission revokes a person's license under Subsection (5), the commission
782     shall also revoke the person's license to sell cigarettes under Section 59-14-201, if any, and the
783     person's license to sell tobacco under Section 59-14-301, if any.]
784          [(8)] (5) The commission may make rules in accordance with Title 63G, Chapter 3,
785     Utah Administrative Rulemaking Act, to establish the additional information described in
786     Subsection (3)[(a)(iii)](c) that a person must provide in the application described in Subsection
787     (3)[(a)].
788          [(9)] (6) It is a class B misdemeanor for a person to violate Subsection (1).
789          (7) The commission may not charge a fee for a license under this
789a      Ĥ→ [chapter] section ←Ĥ .
790          Section 22. Section 76-10-105.1 is amended to read:
791          76-10-105.1. Requirement of direct, face-to-face sale of cigarettes, tobacco, and
792     electronic cigarettes -- Minors not allowed in tobacco specialty shop -- Penalties.
793          (1) As used in this section:
794          (a) "Cigarette" means the same as that term is defined in Section 59-14-102.
795          (b) (i) "Face-to-face exchange" means a transaction made in person between an
796     individual and a retailer or retailer's employee.
797          (ii) "Face-to-face exchange" does not include a sale through a:
798          (A) vending machine; or
799          (B) self-service display.
800          (c) "Retailer" means a person who:
801          (i) sells a cigarette, tobacco, or an electronic cigarette to an individual for personal
802     consumption; or
803          (ii) operates a facility with a vending machine that sells a cigarette, tobacco, or an
804     electronic cigarette.
805          (d) "Self-service display" means a display of a cigarette, tobacco, or an electronic
806     cigarette to which the public has access without the intervention of a retailer or retailer's
807     employee.
808          (e) "Tobacco" means any product, except a cigarette, made of or containing tobacco.
809          (f) "Tobacco specialty shop" means [a retailer with a physical location that derives at
810     least 80% of its total sales from the sale of cigarettes, tobacco, or electronic cigarettes.] a "retail
811     tobacco specialty business" as that term is defined:
812          (i) as it relates to a municipality, in Section 10-8-41.6; and
813          (ii) as it relates to a county, in Section 17-50-333.
814          (2) Except as provided in Subsection (3), a retailer may sell a cigarette, tobacco, or an
815     electronic cigarette only in a face-to-face exchange.
816          (3) The face-to-face sale requirement in Subsection (2) does not apply to:
817          (a) a mail-order, telephone, or Internet sale made in compliance with Section
818     59-14-509;
819          (b) a sale from a vending machine or self-service display that is located in an area of a
820     retailer's facility:
821          (i) that is distinct and separate from the rest of the facility; and
822          (ii) where the retailer only allows an individual who complies with Subsection (4) to be
823     present; or
824          (c) a sale at a tobacco specialty shop.
825          (4) An individual who is less than 19 years old may not enter or be present at a tobacco
826     specialty shop unless the individual is:
827          (a) accompanied by a parent or legal guardian;
828          (b) present at the tobacco shop for a bona fide commercial purpose other than to
829     purchase a cigarette, tobacco, or an electronic cigarette; or
830          (c) 18 years old or older and an active duty member of the United States Armed Forces,
831     as demonstrated by a valid, government-issued military identification card.
832          (5) A parent or legal guardian who accompanies, under Subsection (4)(a), an individual
833     into an area described in Subsection (3)(b), or into a tobacco specialty shop, may not allow the
834     individual to purchase a cigarette, tobacco, or an electronic cigarette.
835          (6) A violation of Subsection (2) or (4) is a:
836          (a) class C misdemeanor on the first offense;
837          (b) class B misdemeanor on the second offense; and
838          (c) class A misdemeanor on the third and all subsequent offenses.
839          (7) An individual who violates Subsection (5) is guilty of providing tobacco to a minor
840     under Section 76-10-104.
841          (8) (a) Any ordinance, regulation, or rule adopted by the governing body of a political
842     subdivision of the state or by a state agency that affects the sale, placement, or display of
843     cigarettes, tobacco, or electronic cigarettes that is not essentially identical to the provisions of
844     this section and Section 76-10-102 is superseded.
845          (b) Subsection (8)(a) does not apply to the adoption or enforcement of a land use
846     ordinance by a municipal or county government.
847          Section 23. Section 77-39-101 is amended to read:
848          77-39-101. Investigation of sales of alcohol, tobacco, and electronic cigarettes to
849     underage persons.
850          (1) As used in this section, "electronic cigarette" is as defined in Section 76-10-101.
851          (2) (a) A peace officer, as defined by Title 53, Chapter 13, Peace Officer
852     Classifications, may investigate the possible violation of:
853          (i) Section 32B-4-403 by requesting an individual under the age of 21 years to enter
854     into and attempt to purchase or make a purchase of alcohol from a retail establishment; or
855          (ii) Section 76-10-104 by requesting an individual under the age of 19 years to enter
856     into and attempt to purchase or make a purchase from a retail establishment of:
857          (A) a cigar;
858          (B) a cigarette;
859          (C) tobacco in any form; or
860          (D) an electronic cigarette.
861          (b) A peace officer who is present at the site of a proposed purchase shall direct,
862     supervise, and monitor the individual requested to make the purchase.
863          (c) Immediately following a purchase or attempted purchase or as soon as practical the
864     supervising peace officer shall inform the cashier and the proprietor or manager of the retail
865     establishment that the attempted purchaser was under the legal age to purchase:
866          (i) alcohol; or
867          (ii) (A) a cigar;
868          (B) a cigarette;
869          (C) tobacco in any form; or
870          (D) an electronic cigarette.
871          (d) If a citation or information is issued, it shall be issued within seven days of the
872     purchase.
873          (3) (a) If an individual under the age of 18 years old is requested to attempt a purchase,
874     a written consent of that individual's parent or guardian shall be obtained prior to that
875     individual participating in any attempted purchase.
876          (b) An individual requested by the peace officer to attempt a purchase may:
877          (i) be a trained volunteer; or
878          (ii) receive payment, but may not be paid based on the number of successful purchases
879     of alcohol, tobacco, or an electronic cigarette.
880          (4) The individual requested by the peace officer to attempt a purchase and anyone
881     accompanying the individual attempting a purchase may not during the attempted purchase
882     misrepresent the age of the individual by false or misleading identification documentation in
883     attempting the purchase.
884          (5) An individual requested to attempt to purchase or make a purchase pursuant to this
885     section is immune from prosecution, suit, or civil liability for the purchase of, attempted
886     purchase of, or possession of alcohol, a cigar, a cigarette, tobacco in any form, or an electronic
887     cigarette if a peace officer directs, supervises, and monitors the individual.
888          (6) (a) Except as provided in Subsection (6)(b), a purchase attempted under this section
889     shall be conducted:
890          (i) on a random basis; and
891          (ii) within a 12-month period at any one retail establishment location not more often
892     than:
893          (A) [four] two times for the attempted purchase of:
894          (I) a cigar;
895          (II) a cigarette;
896          (III) tobacco in any form; or
897          (IV) an electronic cigarette; and
898          (B) four times for the attempted purchase of alcohol.
899          (b) Nothing in this section shall prohibit an investigation or an attempt to purchase
900     tobacco under this section if:
901          (i) there is reasonable suspicion to believe the retail establishment has sold alcohol, a
902     cigar, a cigarette, tobacco in any form, or an electronic cigarette to an individual under the age
903     established by Section 32B-4-403 or 76-10-104; and
904          (ii) the supervising peace officer makes a written record of the grounds for the
905     reasonable suspicion.
906          (7) (a) The peace officer exercising direction, supervision, and monitoring of the
907     attempted purchase shall make a report of the attempted purchase, whether or not a purchase
908     was made.
909          (b) The report required by this Subsection (7) shall include:
910          (i) the name of the supervising peace officer;
911          (ii) the name of the individual attempting the purchase;
912          (iii) a photograph of the individual attempting the purchase showing how that
913     individual appeared at the time of the attempted purchase;
914          (iv) the name and description of the cashier or proprietor from whom the individual
915     attempted the purchase;
916          (v) the name and address of the retail establishment; and
917          (vi) the date and time of the attempted purchase.
918          Section 24. Repealer.
919          This bill repeals:
920          Section 26-42-101, Title.
921          Section 59-14-203.5, Commission action to suspend or revoke license.
922          Section 59-14-301.5, Commission action to suspend or revoke license.
923          Section 25. Effective date.
924          This bill takes effect on July 1, 2018.