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

375     
Part 1. General Provisions

376          26-62-101. Title.
377          This chapter is known as "Tobacco Retail Permit."
378          Section 5. Section 26-62-102, which is renumbered from Section 26-42-102 is
379     renumbered and amended to read:
380          [26-42-102].      26-62-102. Definitions.
381          As used in this chapter:
382          [(1) "Commission" means the Utah State Tax Commission.]
383          (1) "Community location" means the same as that term is defined:
384          (a) as it relates to a municipality, in Section 10-8-41.6; and
385          (b) as it relates to a county, in Section 17-50-333.
386          (2) "Employee" means an employee of a [licensee] tobacco retailer.
387          (3) "Enforcing agency" means the state Department of Health, or any local health
388     department enforcing the provisions of this chapter.
389          [(4) "Licensee" means a person licensed:]
390          [(a) under Section 59-14-201 to sell cigarettes at retail;]
391          [(b) under Section 59-14-301 to sell tobacco products at retail; or]
392          [(c) under Section 59-14-803 to sell an electronic cigarette product.]
393          (4) "General tobacco retailer" means a tobacco retailer that is not a retail tobacco
394     specialty business.
395          (5) "Local health department" means the same as that term is defined in Section
396     26A-1-102.
397          (6) "Permit" means a tobacco retail permit issued under this chapter.
398          (7) "Retail tobacco specialty business" means the same as that term is defined:
399          (a) as it relates to a municipality, in Section 10-8-41.6; and
400          (b) as it relates to a county, in Section 17-50-333.
401          [(5)] (8) ["License to sell tobacco" or "license"] "Tax commission license" means a
402     license issued by the State Tax Commission under:
403          (a) [under] Section 59-14-201 to sell cigarettes at retail;
404          (b) [under] Section 59-14-301 to sell tobacco products at retail; or
405          (c) [under] Section 59-14-803 to sell an electronic cigarette product.
406          [(6) "Tobacco" means:]
407          [(a) a cigarette or a tobacco product, as defined in Section 59-14-102; or]
408          [(b) an electronic cigarette product, as defined in Section 59-14-802.]
409          (9) "Tobacco product" means:
410          (a) a cigar, cigarette, or electronic cigarette as those terms are defined in Section
411     76-10-101;
412          (b) a tobacco product as that term is defined in Section 59-14-102, including:
413          (i) chewing tobacco; or
414          (ii) any substitute for a tobacco product, including flavoring or additives to tobacco; or
415          (c) tobacco paraphernalia as that term is defined in Section 76-10-104.1.
416          (10) "Tobacco retailer" means a person that is required to obtain a tax commission
417     license.
418          Section 6. Section 26-62-103 is enacted to read:
419          26-62-103. Regulation of tobacco retailers.
420          The regulation of a tobacco retailer is an exercise of the police powers of the state, and
421     through delegation, to other governmental entities.
422          Section 7. Section 26-62-201 is enacted to read:
423     
Part 2. Permit Requirements

424          26-62-201. Permitting requirement.
425          (1) (a) Beginning July 1, 2018, a tobacco retailer shall hold a valid tobacco retail
426     permit issued in accordance with this chapter by the local health department with jurisdiction
427     over the physical location where the tobacco retailer operates.
428          (b) A tobacco retailer without a valid permit may not:
429          (i) place tobacco products in public view;
430          (ii) display any advertisement related to tobacco products that promotes the sale,
431     distribution, or use of those products; or
432          (iii) sell, offer for sale, or offer to exchange for any form of consideration, tobacco or
433     tobacco products.
434          (2) A local health department may issue a permit under this chapter for a tobacco
435     retailer in the classification of:
436          (a) a general tobacco retailer; or
437          (b) a retail tobacco specialty business.
438          (3) A permit under this chapter is:
439          (a) valid only for one physical location, including a vending machine;
440          (b) valid only at one fixed business address; and
441          (c) if multiple tobacco retailers are at the same address, separately required for each
442     tobacco retailer.
443          (4) Notwithstanding the requirement in Subsection (1), a person that holds a tax
444     commission license that was valid on July 1, 2018:
445          (a) may operate without a permit under this chapter until December 31, 2018; and
446          (b) shall obtain a permit from a local health department under this chapter before
447     January 1, 2019.
448          Section 8. Section 26-62-202 is enacted to read:
449          26-62-202. Permit application.
450          (1) A local health department shall issue a permit under this chapter for a tobacco
451     retailer if the local health department determines that the applicant:
452          (a) accurately provided all information required under Subsection (3) and, if applicable,
453     Subsection (4); and
454          (b) meets all requirements for a permit under this chapter.
455          (2) An applicant for a permit shall:
456          (a) submit an application described in Subsection (3) to the local health department
457     with jurisdiction over the area where the tobacco retailer is located; and
458          (b) pay all applicable fees described in Section 26-62-203.
459          (3) The application for a permit shall include:
460          (a) the name, address, and telephone number of each proprietor;
461          (b) the name and mailing address of each proprietor authorized to receive
462     permit-related communication and notices;
463          (c) the business name, address, and telephone number of the single, fixed location for
464     which a permit is sought;
465          (d) evidence that the location for which a permit is sought has a valid tax commission
466     license;
467          (e) information regarding whether, in the past 24 months, any proprietor of the tobacco
468     retailer has been determined to have violated, or has been a proprietor at a location that has
469     been determined to have violated:
470          (i) a provision of this chapter;
471          (ii) Chapter 38, Utah Indoor Clean Air Act;
472          (iii) Title 76, Chapter 10, Part 1, Cigarettes and Tobacco and Psychotoxic Chemical
473     Solvents;
474          (iv) Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
475          (v) regulations restricting the sale and distribution of cigarettes and smokeless tobacco
476     issued by the United States Food and Drug Administration, 21 C.F.R. Part 1140; or
477          (vi) any other provision of state law or local ordinance regarding the sale, marketing, or
478     distribution of tobacco products; and
479          (f) the dates of all violations disclosed under this Subsection (3).
480          (4) (a) In addition to the information described in Subsection (3), an applicant for a
481     retail tobacco specialty business permit shall include evidence showing whether the business is
482     located within:
483          (i) 1,000 feet of a community location;
484          (ii) 600 feet of another retail tobacco specialty business; or
485          (iii) 600 feet of property used or zoned for agricultural or residential use.
486          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
487     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
488     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
489     to intervening structures or zoning districts.
490          (5) The department or a local health department may not deny a permit to a retail
491     tobacco specialty business under Subsection (4) if the person obtained a license to operate the
492     retail tobacco specialty business before December 31, 2015, from:
493          (a) a municipality under Section 10-8-41.6; or
494          (b) a county under Section 17-50-333.
495          (6) (a) The department shall establish by rule made in accordance with Title 63G,
496     Chapter 3, Utah Administrative Rulemaking Act, a permit process for local health departments
497     in accordance with this chapter.
498          (b) The permit process established by the department under Subsection (6)(a) may not
499     require any information in an application that is not required by this section.
500          Section 9. Section 26-62-203 is enacted to read:
501          26-62-203. Permit term and fees.
502          (1) (a) The term of a permit issued under this chapter to a retail tobacco specialty
503     business is one year.
504          (b) The term of a permit issued under this chapter to a general tobacco retailer is two
505     years.
506          (2) (a) A local health department may not issue a permit under this chapter until the
507     applicant has paid a permit fee to the local health department of:
508          (i) $30 for a new permit;
509          (ii) $20 for a permit renewal; or
510          (iii) $30 for reinstatement of a permit that has been revoked, suspended, or allowed to
511     expire.
512          (b) A local health department that collects fees under Subsection (2)(a) shall use the
513     fees to administer the permit requirements under this chapter.
514          (c) In addition to the fee described in Subsection (2)(a), a local health department may
515     establish and collect a fee to perform a plan review for a retail tobacco specialty business
516     permit.
517          (3) A permit holder may apply for a renewal of a permit no earlier than 30 days before
518     the day on which the permit expires.
519          (4) A tobacco retailer that fails to renew a permit before the permit expires may apply
520     to reinstate the permit by submitting to the local health department:
521          (a) the information required in Subsection 26-62-202(3) and, if applicable, Subsection
522     26-62-202(4);
523          (b) the fee for the reinstatement of a permit; and
524          (c) a signed affidavit affirming that the tobacco retailer has not violated the
525     prohibitions in Subsection 26-62-201(1)(b) after the permit expired.
526          Section 10. Section 26-62-204 is enacted to read:
527          26-62-204. Permit nontransferable.
528          (1) A permit is nontransferable.
529          (2) If the information described in Subsection 26-62-202(3) changes, a tobacco retailer:
530          (a) may not renew the permit; and
531          (b) shall apply for a new permit no later than 15 days after the information in
532     Subsection 26-62-202(3) changes.
533          Section 11. Section 26-62-205 is enacted to read:
534          26-62-205. Permit requirements for a retail tobacco specialty business.
535          A retail tobacco specialty business shall:
536          (1) except as provided in Subsection 76-10-105.1(4), prohibit any individual under 19
537     years of age from entering the business; and
538          (2) prominently display at the retail tobacco specialty business a sign on the public
539     entrance of the business that communicates the prohibition in Subsection 76-10-105.1(4).
540          Section 12. Section 26-62-301 is enacted to read:
541     
Part 3. Enforcement

542          26-62-301. Permit violation.
543          A person is in violation of the permit issued under this chapter if the person violates:
544          (1) a provision of this chapter;
545          (2) a provision of licensing laws under Section 10-8-41.6 or Section 17-50-333;
546          (3) a provision of Title 76, Chapter 10, Part 1, Cigarettes and Tobacco and Psychotoxic
547     Chemical Solvents;
548          (4) a provision of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
549          (5) a regulation restricting the sale and distribution of cigarettes and smokeless tobacco
550     issued by the United States Food and Drug Administration under 21 C.F.R. Part 1140; or
551          (6) any other provision of state law or local ordinance regarding the sale, marketing, or
552     distribution of tobacco products.
553          Section 13. Section 26-62-302, which is renumbered from Section 26-42-104 is
554     renumbered and amended to read:
555          [26-42-104].      26-62-302. Enforcement by state and local health
556     departments.
557          The [state Department of Health and the] department and local health departments shall
558     enforce this chapter under the procedures of Title 63G, Chapter 4, Administrative Procedures
559     Act, as an informal adjudicative proceeding, including:
560          (1) notifying [licensees] a tobacco retailer of alleged violations of [Section 26-42-103]
561     this chapter;
562          (2) conducting hearings;
563          (3) determining violations of this chapter; and
564          (4) imposing civil [monetary] administrative penalties.
565          Section 14. Section 26-62-303 is enacted to read:
566          26-62-303. Inspection of retail tobacco businesses.
567          The department or a local health department may inspect a tobacco retailer to determine
568     whether the tobacco retailer:
569          (1) continues to meet the qualifications for the permit issued under this chapter;
570          (2) if applicable, continues to meet the requirements for a retail tobacco specialty
571     business license issued under Section 10-8-41.6 or Section 17-50-333;
572          (3) engaged in a pattern of unlawful activity under Title 76, Chapter 10, Part 16,
573     Pattern of Unlawful Activity Act;
574          (4) violated any of the regulations restricting the sale and distribution of cigarettes and
575     smokeless tobacco issued by the United States Food and Drug Administration under 21 C.F.R.
576     Part 1140; or
577          (5) has violated any other provision of state law or local ordinance.
578          Section 15. Section 26-62-304, which is renumbered from Section 26-42-105 is
579     renumbered and amended to read:
580          [26-42-105].      26-62-304. Hearing -- Evidence of criminal conviction.
581          (1) At a civil hearing conducted under Section [26-42-104] 26-62-302, evidence of the
582     final criminal conviction of a [licensee] tobacco retailer or employee for violation of Section
583     76-10-104 at the same location and within the same time period as the location and time period
584     alleged in the civil hearing for violation of [Section 26-42-103] this chapter for sale of tobacco
585     products to a person under the age of 19 is prima facie evidence of a violation of [Section
586     26-42-103] this chapter.
587          (2) If the [licensee has been] tobacco retailer is convicted of violating Section
588     76-10-104 [prior to a finding of a violation of Section 26-42-103, the licensee], the enforcing
589     agency:
590          (a) may not [be assessed a] assess an additional monetary penalty under this chapter for
591     the same offense for which the conviction was obtained[.]; and
592          (b) may revoke or suspend a permit in accordance with Section 26-62-305.
593          Section 16. Section 26-62-305, which is renumbered from Section 26-42-103 is
594     renumbered and amended to read:
595          [26-42-103].      26-62-305. Penalties.
596          (1) (a) If, following an inspection by an enforcing agency, or an investigation or
597     issuance of a citation or information under Section 77-39-101, an enforcing agency determines
598     [under Section 26-42-104 that a licensee or any employee has sold tobacco to a person younger
599     than 19 years of age, as prohibited by Section 76-10-104,] that a person has violated the terms
600     of a permit issued under this chapter, the enforcing agency may impose [upon the licensee the
601     following administrative penalties:] the penalties described in this section.
602          (b) If multiple violations are found in a single inspection or investigation, only one
603     violation shall count toward the penalties described in this section.
604          [(a) upon the first violation, a penalty of not more than $300;]
605          [(b) upon a second violation at the same retail location, and within 12 months of the
606     first violation, a penalty of not more than $750; and]
607          [(c) upon a third or subsequent violation at the same retail location and within 12
608     months of the first violation, a penalty of not more than $1,000.]
609          [(2) The enforcing agency shall notify the commission in writing of any order or order
610     of default finding a violation of Subsection (1) which is a third or fourth violation.]
611          [(3) The commission, upon receipt of the written notification under Subsection (2),
612     shall take action under Section 59-14-203.5 or 59-14-301.5 against the license to sell tobacco:]
613          [(a) by suspending the licensee's license to sell tobacco at that location for not more
614     than 30 days, upon receipt of notification of a third violation under Subsection (1)(c); and]
615          [(b) by revoking the license to sell tobacco at that location held by the licensee,
616     including any license under suspension, upon receipt of notification of a fourth violation under
617     Subsection (1)(c).]
618          [(4) When the commission revokes a license under Subsection (3)(b), the commission
619     may not issue to the licensee, or to the business entity using the license that is revoked, a
620     license under Section 59-14-202, 59-14-301, or 59-14-803 to sell tobacco at the location for
621     which the license was issued for one year after:]
622          [(a) the day on which the time for filing an appeal of the revocation ends; or]
623          [(b) if the revocation is appealed, the day on which the decision to uphold the
624     revocation becomes final.]
625          [(5) This section does not prevent any bona fide purchaser of the business, who is not a
626     sole proprietor, director, corporate officer, or partner or other holder of significant interest in
627     the entity selling the business, from immediately applying for and obtaining a license to sell
628     tobacco.]
629          (2) (a) The administrative penalty for a first violation at a retail location is a penalty of
630     not more than $500.
631          (b) The administrative penalty for a second violation at the same retail location that
632     occurs within one year of a previous violation is a penalty of not more than $750.
633          (c) The administrative penalty for a third or subsequent violation at the same retail
634     location that occurs within two years after two or more previous violations is:
635          (i) a suspension of the retail tobacco business permit for 30 consecutive business days
636     within 60 days after the day on which the third or subsequent violation occurs; or
637          (ii) a penalty of not more than $1,000.
638          (3) The department or a local health department may:
639          (a) revoke a permit if a fourth violation occurs within two years of three previous
640     violations;
641          (b) in addition to a monetary penalty imposed under Subsection (2), suspend the permit
642     if the violation is due to a sale of tobacco products to a person under 19 years of age; and
643          (c) if applicable, recommend to a municipality or county that a retail tobacco specialty
644     business license issued under Section 10-8-41.6 or 17-50-333 be suspended or revoked.
645          (4) (a) Except when a transfer described in Subsection (5) occurs, a local health
646     department may not issue a permit to:
647          (i) a tobacco retailer for whom a permit is suspended or revoked under Subsection (3);
648     or
649          (ii) a tobacco retailer that has the same proprietor, director, corporate officer, partner,
650     or other holder of significant interest as another tobacco retailer for whom a permit is
651     suspended or revoked under Subsection (3).
652          (b) A person whose permit:
653          (i) is suspended under this section may not apply for a new permit for any other
654     tobacco retailer for a period of 12 months after the day on which an enforcing agency suspends
655     the permit; and
656          (ii) is revoked may not apply for a new permit for any tobacco retailer for a period of
657     24 months after the day on which an enforcing agency revokes the permit.
658          (5) Violations of this chapter, Section 10-8-41.6, or Section 17-50-333 that occur at a
659     tobacco retailer location shall stay on the record for that tobacco retailer location unless:
660          (a) the tobacco retailer is transferred to a new proprietor; and
661          (b) the new proprietor provides documentation to the local health department that the
662     new proprietor is acquiring the tobacco retailer in an arm's length transaction from the previous
663     proprietor.
664          Section 17. Section 26-62-306, which is renumbered from Section 26-42-106 is
665     renumbered and amended to read:
666          [26-42-106].      26-62-306. Recognition of tobacco retailer training program.
667          (1) In determining the amount of the monetary penalty to be imposed for an employee's
668     violation of [Section 26-42-103, the] this chapter, a hearing officer shall reduce the civil
669     penalty [by at least 50% if he] by at least 50% if the hearing officer determines that:
670          (a) the [licensee] tobacco retailer has implemented a documented employee training
671     program; and
672          (b) the [employee has] employees have completed that training program within 30 days
673     [of commencing] after the day on which each employee commences the duties of selling
674     tobacco products.
675          (2) (a) [If] For the first offense at a location, if the hearing officer determines under
676     Subsection (1)[, regarding a first offense at a location, that the] that the tobacco retailer licensee
677     has not implemented a documented training program with a written curriculum for employees
678     at that location regarding compliance with this chapter, the hearing officer may suspend all or a
679     portion of the [monetary penalty, contingent upon the licensee's initiating a training program
680     for employees at that location within 30 days after the hearing date.] penalty if:
681          (i) the tobacco retailer agrees to initiate a training program for employees at that
682     location; and
683          (ii) the training program begins within 30 days after the hearing officer makes a
684     determination under this Subsection (2)(a).
685          (b) If the hearing officer determines at a subsequent hearing that the [licensee] tobacco
686     retailer has not implemented the training program within the time period required under
687     Subsection (2)(a)(ii), the hearing officer shall promptly impose the suspended monetary penalty
688     [shall be promptly imposed], unless the [licensee] tobacco retailer demonstrates good cause for
689     [granting] an extension of time for implementation of the training program.
690          Section 18. Section 26-62-307, which is renumbered from Section 26-42-107 is
691     renumbered and amended to read:
692          [26-42-107].      26-62-307. Allocation of civil penalties.
693          Civil monetary penalties collected under this chapter shall be allocated as follows:
694          (1) if a local health department conducts an adjudicative proceeding under Section
695     [26-42-104] 26-62-302, the penalty shall be paid to the treasurer of the county in which the
696     violation was committed, and transferred to[:(a)] the local health department [if it conducts a
697     civil hearing under Section 26-42-104 alone; or]; and
698          [(b) in equal portions to the local health department and the other agencies that
699     participated in the hearing process;]
700          (2) if the [state Department of Health] department conducts a civil hearing under
701     Section [26-42-104] 26-62-302, the penalty shall be deposited in the state's General Fund, and
702     may be appropriated by the Legislature to the [state Department of Health] department for use
703     in enforcement of this chapter[; and].
704          [(3) if the civil penalty involves suspension or revocation of a license to sell tobacco
705     under Section 59-14-203.5, 59-14-301.5, or 59-14-803, half of the penalty shall be paid to the
706     commission, and the other half shall be allocated under Subsection (1) or (2), as appropriate.]
707          Section 19. Section 26A-1-128 is enacted to read:
708          26A-1-128. Tobacco permits -- Enforcement.
709          A local health department:
710          (1) shall enforce the requirements of Title 26, Chapter 62, Tobacco Retail Permit;
711          (2) may enforce licensing requirements for entities that hold a business license to sell
712     tobacco products under Section 10-8-41.6 or Section 17-50-333; and
713          (3) may recommend to a municipality or county that the business license of a retail
714     tobacco specialty business be suspended or revoked for a violation of Section 10-8-41.6,
715     Section 17-50-333, or Title 26, Chapter 62, Tobacco Retail Permit.
716          Section 20. Section 59-14-201 is amended to read:
717          59-14-201. License -- Application of part -- Fee -- Bond -- Exceptions.
718          (1) It is unlawful for any person in this state to manufacture, import, distribute, barter,
719     sell, exchange, or offer cigarettes for sale without first having obtained a license issued by the
720     commission under Section 59-14-202.
721          (2) Except for the tax rates described in Subsection 59-14-204(2), this part does not
722     apply to a cigarette produced from a cigarette rolling machine.
723          (3) (a) A license may not be issued for the sale of cigarettes until the applicant has paid
724     a license fee of $30 or a license renewal fee of $20, as appropriate.
725          (b) The fee for reinstatement of a license that has been revoked, suspended, or allowed
726     to expire is $30.
727          (c) Notwithstanding Subsections (3)(a) and (b), the commission may not charge a fee
728     for a license under this section for a retailer, as defined in Section 59-14-102.
729          (4) (a) A license may not be issued until the applicant files a bond with the
730     commission. The commission shall determine the form and the amount of the bond, the
731     minimum amount of which shall be $500. The bond shall be executed by the applicant as
732     principal, with a corporate surety, payable to the state and conditioned upon the faithful
733     performance of all the requirements of this chapter, including the payment of all taxes,
734     penalties, and other obligations.
735          (b) An applicant is not required to post a bond if the applicant:
736          (i) purchases during the license year only products that have the proper state stamp
737     affixed as required by this chapter; and
738          (ii) files an affidavit with the applicant's application attesting to this fact.
739          Section 21. Section 59-14-803 is amended to read:
740          59-14-803. License to sell electronic cigarette products.
741          (1) Except as provided in Subsection (2), a person may not sell, offer to sell, or
742     distribute an electronic cigarette product in Utah without first obtaining a license to sell an
743     electronic cigarette product from the commission under this section.
744          (2) A person that holds a valid license to sell cigarettes under Section 59-14-201, or a
745     person that holds a valid license to sell tobacco products under Section 59-14-301, may,
746     without obtaining a separate license to sell an electronic cigarette product under this part, sell,
747     offer to sell, or distribute an electronic cigarette product in Utah in accordance with this part.
748          (3) [Except as provided in Subsection (6), the] The commission shall issue a license to
749     sell an electronic cigarette product to a person that[: (a)] submits an application, on a form
750     created by the commission, that includes:
751          [(i)] (a) the person's name;
752          [(ii)] (b) the address of the facility where the person will sell an electronic cigarette
753     product; and
754          [(iii)] (c) any other information the commission requires to implement this chapter[;
755     and].
756          [(b) pays a fee:]
757          [(i) in the amount of $30; or]
758          [(ii) if renewing the person's license, in the amount of $20.]
759          (4) A license described in Subsection (3) is:
760          (a) valid only at one fixed business address;
761          (b) valid for three years;
762          (c) valid only for a physical location; and
763          (d) renewable if a licensee meets the criteria for licensing described in Subsection (3).
764          [(5) The commission shall, after notifying a licensee, revoke a license described in
765     Subsection (3) if an enforcing agency determines the licensee has violated a provision of:]
766          [(a) Title 26, Chapter 42, Civil Penalties for Tobacco Sales to Underage Persons; or]
767          [(b) Title 26, Chapter 57, Electronic Cigarette Regulation Act.]
768          [(6) If the commission revokes a person's license to sell an electronic cigarette product
769     under Subsection (5), the commission may not issue a license to sell an electronic cigarette
770     product, a license to sell cigarettes under Section 59-14-201, or a license to sell tobacco under
771     Section 59-14-301 to the person until one year after:]
772          [(a) the day on which the time for filing an appeal of the revocation ends, as
773     determined by the enforcing agency; or]
774          [(b) if the person appeals the enforcing agency's decision to revoke the license to sell
775     an electronic cigarette product, the day on which the enforcing agency's decision to uphold the
776     revocation is final.]
777          [(7) If the commission revokes a person's license under Subsection (5), the commission
778     shall also revoke the person's license to sell cigarettes under Section 59-14-201, if any, and the
779     person's license to sell tobacco under Section 59-14-301, if any.]
780          [(8)] (5) The commission may make rules in accordance with Title 63G, Chapter 3,
781     Utah Administrative Rulemaking Act, to establish the additional information described in
782     Subsection (3)[(a)(iii)](c) that a person must provide in the application described in Subsection
783     (3)[(a)].
784          [(9)] (6) It is a class B misdemeanor for a person to violate Subsection (1).
785          (7) The commission may not charge a fee for a license under this section.
786          Section 22. Section 76-10-105.1 is amended to read:
787          76-10-105.1. Requirement of direct, face-to-face sale of cigarettes, tobacco, and
788     electronic cigarettes -- Minors not allowed in tobacco specialty shop -- Penalties.
789          (1) As used in this section:
790          (a) "Cigarette" means the same as that term is defined in Section 59-14-102.
791          (b) (i) "Face-to-face exchange" means a transaction made in person between an
792     individual and a retailer or retailer's employee.
793          (ii) "Face-to-face exchange" does not include a sale through a:
794          (A) vending machine; or
795          (B) self-service display.
796          (c) "Retailer" means a person who:
797          (i) sells a cigarette, tobacco, or an electronic cigarette to an individual for personal
798     consumption; or
799          (ii) operates a facility with a vending machine that sells a cigarette, tobacco, or an
800     electronic cigarette.
801          (d) "Self-service display" means a display of a cigarette, tobacco, or an electronic
802     cigarette to which the public has access without the intervention of a retailer or retailer's
803     employee.
804          (e) "Tobacco" means any product, except a cigarette, made of or containing tobacco.
805          (f) "Tobacco specialty shop" means [a retailer with a physical location that derives at
806     least 80% of its total sales from the sale of cigarettes, tobacco, or electronic cigarettes.] a "retail
807     tobacco specialty business" as that term is defined:
808          (i) as it relates to a municipality, in Section 10-8-41.6; and
809          (ii) as it relates to a county, in Section 17-50-333.
810          (2) Except as provided in Subsection (3), a retailer may sell a cigarette, tobacco, or an
811     electronic cigarette only in a face-to-face exchange.
812          (3) The face-to-face sale requirement in Subsection (2) does not apply to:
813          (a) a mail-order, telephone, or Internet sale made in compliance with Section
814     59-14-509;
815          (b) a sale from a vending machine or self-service display that is located in an area of a
816     retailer's facility:
817          (i) that is distinct and separate from the rest of the facility; and
818          (ii) where the retailer only allows an individual who complies with Subsection (4) to be
819     present; or
820          (c) a sale at a tobacco specialty shop.
821          (4) An individual who is less than 19 years old may not enter or be present at a tobacco
822     specialty shop unless the individual is:
823          (a) accompanied by a parent or legal guardian;
824          (b) present at the tobacco shop for a bona fide commercial purpose other than to
825     purchase a cigarette, tobacco, or an electronic cigarette; or
826          (c) 18 years old or older and an active duty member of the United States Armed Forces,
827     as demonstrated by a valid, government-issued military identification card.
828          (5) A parent or legal guardian who accompanies, under Subsection (4)(a), an individual
829     into an area described in Subsection (3)(b), or into a tobacco specialty shop, may not allow the
830     individual to purchase a cigarette, tobacco, or an electronic cigarette.
831          (6) A violation of Subsection (2) or (4) is a:
832          (a) class C misdemeanor on the first offense;
833          (b) class B misdemeanor on the second offense; and
834          (c) class A misdemeanor on the third and all subsequent offenses.
835          (7) An individual who violates Subsection (5) is guilty of providing tobacco to a minor
836     under Section 76-10-104.
837          (8) (a) Any ordinance, regulation, or rule adopted by the governing body of a political
838     subdivision of the state or by a state agency that affects the sale, placement, or display of
839     cigarettes, tobacco, or electronic cigarettes that is not essentially identical to the provisions of
840     this section and Section 76-10-102 is superseded.
841          (b) Subsection (8)(a) does not apply to the adoption or enforcement of a land use
842     ordinance by a municipal or county government.
843          Section 23. Section 77-39-101 is amended to read:
844          77-39-101. Investigation of sales of alcohol, tobacco, and electronic cigarettes to
845     underage persons.
846          (1) As used in this section, "electronic cigarette" is as defined in Section 76-10-101.
847          (2) (a) A peace officer, as defined by Title 53, Chapter 13, Peace Officer
848     Classifications, may investigate the possible violation of:
849          (i) Section 32B-4-403 by requesting an individual under the age of 21 years to enter
850     into and attempt to purchase or make a purchase of alcohol from a retail establishment; or
851          (ii) Section 76-10-104 by requesting an individual under the age of 19 years to enter
852     into and attempt to purchase or make a purchase from a retail establishment of:
853          (A) a cigar;
854          (B) a cigarette;
855          (C) tobacco in any form; or
856          (D) an electronic cigarette.
857          (b) A peace officer who is present at the site of a proposed purchase shall direct,
858     supervise, and monitor the individual requested to make the purchase.
859          (c) Immediately following a purchase or attempted purchase or as soon as practical the
860     supervising peace officer shall inform the cashier and the proprietor or manager of the retail
861     establishment that the attempted purchaser was under the legal age to purchase:
862          (i) alcohol; or
863          (ii) (A) a cigar;
864          (B) a cigarette;
865          (C) tobacco in any form; or
866          (D) an electronic cigarette.
867          (d) If a citation or information is issued, it shall be issued within seven days of the
868     purchase.
869          (3) (a) If an individual under the age of 18 years old is requested to attempt a purchase,
870     a written consent of that individual's parent or guardian shall be obtained prior to that
871     individual participating in any attempted purchase.
872          (b) An individual requested by the peace officer to attempt a purchase may:
873          (i) be a trained volunteer; or
874          (ii) receive payment, but may not be paid based on the number of successful purchases
875     of alcohol, tobacco, or an electronic cigarette.
876          (4) The individual requested by the peace officer to attempt a purchase and anyone
877     accompanying the individual attempting a purchase may not during the attempted purchase
878     misrepresent the age of the individual by false or misleading identification documentation in
879     attempting the purchase.
880          (5) An individual requested to attempt to purchase or make a purchase pursuant to this
881     section is immune from prosecution, suit, or civil liability for the purchase of, attempted
882     purchase of, or possession of alcohol, a cigar, a cigarette, tobacco in any form, or an electronic
883     cigarette if a peace officer directs, supervises, and monitors the individual.
884          (6) (a) Except as provided in Subsection (6)(b), a purchase attempted under this section
885     shall be conducted:
886          (i) on a random basis; and
887          (ii) within a 12-month period at any one retail establishment location not more often
888     than:
889          (A) [four] two times for the attempted purchase of:
890          (I) a cigar;
891          (II) a cigarette;
892          (III) tobacco in any form; or
893          (IV) an electronic cigarette; and
894          (B) four times for the attempted purchase of alcohol.
895          (b) Nothing in this section shall prohibit an investigation or an attempt to purchase
896     tobacco under this section if:
897          (i) there is reasonable suspicion to believe the retail establishment has sold alcohol, a
898     cigar, a cigarette, tobacco in any form, or an electronic cigarette to an individual under the age
899     established by Section 32B-4-403 or 76-10-104; and
900          (ii) the supervising peace officer makes a written record of the grounds for the
901     reasonable suspicion.
902          (7) (a) The peace officer exercising direction, supervision, and monitoring of the
903     attempted purchase shall make a report of the attempted purchase, whether or not a purchase
904     was made.
905          (b) The report required by this Subsection (7) shall include:
906          (i) the name of the supervising peace officer;
907          (ii) the name of the individual attempting the purchase;
908          (iii) a photograph of the individual attempting the purchase showing how that
909     individual appeared at the time of the attempted purchase;
910          (iv) the name and description of the cashier or proprietor from whom the individual
911     attempted the purchase;
912          (v) the name and address of the retail establishment; and
913          (vi) the date and time of the attempted purchase.
914          Section 24. Repealer.
915          This bill repeals:
916          Section 26-42-101, Title.
917          Section 59-14-203.5, Commission action to suspend or revoke license.
918          Section 59-14-301.5, Commission action to suspend or revoke license.
919          Section 25. Effective date.
920          This bill takes effect on July 1, 2018.