1     
TOBACCO RETAILER AMENDMENTS

2     
2020 SIXTH SPECIAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Evan J. Vickers

5     
House Sponsor: Jon Hawkins

6     

7     LONG TITLE
8     General Description:
9          This bill amends and clarifies provisions relating to tobacco retailers.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends and clarifies the requirements that a retail tobacco specialty business must
13     meet in order to receive an exemption from certain community location distancing
14     provisions; and
15          ▸     makes technical and corresponding changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          This bill provides a special effective date.
20          This bill provides retrospective operation.
21     Utah Code Sections Affected:
22     AMENDS:
23          10-8-41.6, as last amended by Laws of Utah 2020, Chapters 302, 347 and last amended
24     by Coordination Clause, Laws of Utah 2020, Chapter 302
25          17-50-333, as last amended by Laws of Utah 2020, Chapters 302, 347 and last amended
26     by Coordination Clause, Laws of Utah 2020, Chapter 302
27          26-62-202, as last amended by Laws of Utah 2020, Chapter 347
28          63I-1-210, as last amended by Laws of Utah 2020, Chapter 302
29          63I-1-217, as last amended by Laws of Utah 2020, Chapters 154 and 302
30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 10-8-41.6 is amended to read:
33          10-8-41.6. Regulation of retail tobacco specialty business.
34          (1) As used in this section:
35          (a) "Community location" means:
36          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
37          (ii) a licensed child-care facility or preschool;
38          (iii) a trade or technical school;
39          (iv) a church;
40          (v) a public library;
41          (vi) a public playground;
42          (vii) a public park;
43          (viii) a youth center or other space used primarily for youth oriented activities;
44          (ix) a public recreational facility;
45          (x) a public arcade; or
46          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
47          (b) "Department" means the Department of Health, created in Section 26-1-4.
48          (c) "Electronic cigarette product" means the same as that term is defined in Section
49     76-10-101.
50          (d) "Flavored electronic cigarette product" means the same as that term is defined in
51     Section 76-10-101.
52          (e) "Licensee" means a person licensed under this section to conduct business as a
53     retail tobacco specialty business.
54          (f) "Local health department" means the same as that term is defined in Section
55     26A-1-102.
56          (g) "Nicotine product" means the same as that term is defined in Section 76-10-101.
57          (h) "Retail tobacco specialty business" means a commercial establishment in which:
58          (i) sales of tobacco products, electronic cigarette products, and nicotine products
59     account for more than 35% of the total quarterly gross receipts for the establishment;
60          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
61     storage of tobacco products, electronic cigarette products, or nicotine products;
62          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
63     tobacco products, electronic cigarette products, or nicotine products;
64          (iv) the commercial establishment:
65          (A) holds itself out as a retail tobacco specialty business; and
66          (B) causes a reasonable person to believe the commercial establishment is a retail
67     tobacco specialty business;
68          (v) any flavored electronic cigarette product is sold; or
69          (vi) the retail space features a self-service display for tobacco products, electronic
70     cigarette products, or nicotine products.
71          (i) "Self-service display" means the same as that term is defined in Section
72     76-10-105.1.
73          (j) "Tobacco product" means:
74          (i) a tobacco product as defined in Section 76-10-101; or
75          (ii) tobacco paraphernalia as defined in Section 76-10-101.
76          (2) The regulation of a retail tobacco specialty business is an exercise of the police
77     powers of the state by the state or by delegation of the state's police powers to other
78     governmental entities.
79          (3) (a) A person may not operate a retail tobacco specialty business in a municipality
80     unless the person obtains a license from the municipality in which the retail tobacco specialty
81     business is located.
82          (b) A municipality may only issue a retail tobacco specialty business license to a
83     person if the person complies with the provisions of Subsections (4) and (5).
84          (4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
85     a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
86     business is located within:
87          (i) 1,000 feet of a community location;
88          (ii) 600 feet of another retail tobacco specialty business; or
89          (iii) 600 feet from property used or zoned for:
90          (A) agriculture use; or
91          (B) residential use.
92          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
93     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
94     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
95     to intervening structures or zoning districts.
96          (5) A municipality may not issue or renew a license for a person to conduct business as
97     a retail tobacco specialty business until the person provides the municipality with proof that the
98     retail tobacco specialty business has:
99          (a) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
100     62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local health
101     department having jurisdiction over the area in which the retail tobacco specialty business is
102     located; and
103          (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
104     Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; and
105          (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
106     license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
107     electronic cigarette product or a nicotine product.
108          (6) (a) Nothing in this section:
109          (i) requires a municipality to issue a retail tobacco specialty business license; or
110          (ii) prohibits a municipality from adopting more restrictive requirements on a person
111     seeking a license or renewal of a license to conduct business as a retail tobacco specialty
112     business.
113          (b) A municipality may suspend or revoke a retail tobacco specialty business license
114     issued under this section:
115          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
116     Part 16, Pattern of Unlawful Activity Act;
117          (ii) if a licensee violates federal law or federal regulations restricting the sale and
118     distribution of tobacco products or electronic cigarette products to protect children and
119     adolescents;
120          (iii) upon the recommendation of the department or a local health department under
121     Title 26, Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit; or
122          (iv) under any other provision of state law or local ordinance.
123          (7) (a) [Except as provided in Subsection (8), a] A retail tobacco specialty business
124     [that has a] is exempt from Subsection (4) if:
125          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
126     license [and] to conduct business as a retail tobacco specialty business;
127          (ii) the retail tobacco specialty business is operating in a municipality in accordance
128     with all applicable laws except for the requirement in Subsection (4)[, on or before December
129     31, 2018, is exempt from Subsection (4).]; and
130          (iii) beginning July 1, 2021, the retail tobacco specialty business is not located within
131     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
132          (b) A retail tobacco specialty business may maintain an exemption under Subsection
133     (7)(a) if:
134          (i) the [retail tobacco specialty business] license described in Subsection (7)(a)(i) is
135     renewed continuously without lapse or permanent revocation;
136          (ii) the retail tobacco specialty business does not close for business or otherwise
137     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
138     more than 60 consecutive days;
139          (iii) the retail tobacco specialty business does not substantially change the business
140     premises or business operation; and
141          (iv) the retail tobacco specialty business maintains the right to operate under the terms
142     of other applicable laws, including:
143          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
144          (B) zoning ordinances;
145          (C) building codes; and
146          [(D) the requirements of a retail tobacco specialty business license issued before
147     December 31, 2018.]
148          [(8) Beginning August 15, 2020, a retail tobacco specialty business that has a business
149     license and is operating in a municipality may not be located within 1,000 feet of any school.]
150          (D) the requirements of the license described in Subsection (7)(a)(i).
151          (c) A retail tobacco specialty business that does not qualify for an exemption under
152     Subsection (7)(a) is exempt from Subsection (4) if:
153          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
154     general tobacco retailer permit or a retail tobacco specialty business permit under Title 26,
155     Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local
156     health department having jurisdiction over the area in which the retail tobacco specialty
157     business is located;
158          (ii) the retail tobacco specialty business is operating in the municipality in accordance
159     with all applicable laws except for the requirement in Subsection (4); and
160          (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
161     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
162          (d) A retail tobacco specialty business may maintain an exemption under Subsection
163     (7)(c) if:
164          (i) on or before December 31, 2020, the retail tobacco specialty business receives a
165     retail tobacco specialty business permit from the local health department having jurisdiction
166     over the area in which the retail tobacco specialty business is located;
167          (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
168     or permanent revocation;
169          (iii) the retail tobacco specialty business does not close for business or otherwise
170     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
171     more than 60 consecutive days; and
172          (iv) the retail tobacco specialty business maintains the right to operate under the terms
173     of other applicable laws, including:
174          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
175          (B) zoning ordinances;
176          (C) building codes; and
177          (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
178          Section 2. Section 17-50-333 is amended to read:
179          17-50-333. Regulation of retail tobacco specialty business.
180          (1) As used in this section:
181          (a) "Community location" means:
182          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
183          (ii) a licensed child-care facility or preschool;
184          (iii) a trade or technical school;
185          (iv) a church;
186          (v) a public library;
187          (vi) a public playground;
188          (vii) a public park;
189          (viii) a youth center or other space used primarily for youth oriented activities;
190          (ix) a public recreational facility;
191          (x) a public arcade; or
192          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
193          (b) "Department" means the Department of Health, created in Section 26-1-4.
194          (c) "Electronic cigarette product" means the same as that term is defined in Section
195     76-10-101.
196          (d) "Flavored electronic cigarette product" means the same as that term is defined in
197     Section 76-10-101.
198          (e) "Licensee" means a person licensed under this section to conduct business as a
199     retail tobacco specialty business.
200          (f) "Local health department" means the same as that term is defined in Section
201     26A-1-102.
202          (g) "Nicotine product" means the same as that term is defined in Section 76-10-101.
203          (h) "Retail tobacco specialty business" means a commercial establishment in which:
204          (i) sales of tobacco products, electronic cigarette products, and nicotine products
205     account for more than 35% of the total quarterly gross receipts for the establishment;
206          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
207     storage of tobacco products, electronic cigarette products, or nicotine products;
208          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
209     tobacco products, electronic cigarette products, or nicotine products;
210          (iv) the commercial establishment:
211          (A) holds itself out as a retail tobacco specialty business; and
212          (B) causes a reasonable person to believe the commercial establishment is a retail
213     tobacco specialty business;
214          (v) any flavored electronic cigarette product is sold; or
215          (vi) the retail space features a self-service display for tobacco products, electronic
216     cigarette products, or nicotine products.
217          (i) "Self-service display" means the same as that term is defined in Section
218     76-10-105.1.
219          (j) "Tobacco product" means:
220          (i) the same as that term is defined in Section 76-10-101; or
221          (ii) tobacco paraphernalia as defined in Section 76-10-101.
222          (2) The regulation of a retail tobacco specialty business is an exercise of the police
223     powers of the state by the state or by the delegation of the state's police power to other
224     governmental entities.
225          (3) (a) A person may not operate a retail tobacco specialty business in a county unless
226     the person obtains a license from the county in which the retail tobacco specialty business is
227     located.
228          (b) A county may only issue a retail tobacco specialty business license to a person if
229     the person complies with the provisions of Subsections (4) and (5).
230          (4) (a) Except as provided in Subsection (7), a county may not issue a license for a
231     person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
232     business is located within:
233          (i) 1,000 feet of a community location;
234          (ii) 600 feet of another retail tobacco specialty business; or
235          (iii) 600 feet from property used or zoned for:
236          (A) agriculture use; or
237          (B) residential use.
238          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
239     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
240     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
241     to intervening structures or zoning districts.
242          (5) A county may not issue or renew a license for a person to conduct business as a
243     retail tobacco specialty business until the person provides the county with proof that the retail
244     tobacco specialty business has:
245          (a) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
246     62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local health
247     department having jurisdiction over the area in which the retail tobacco specialty business is
248     located; and
249          (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
250     Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; or
251          (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
252     license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
253     electronic cigarette product or a nicotine product.
254          (6) (a) Nothing in this section:
255          (i) requires a county to issue a retail tobacco specialty business license; or
256          (ii) prohibits a county from adopting more restrictive requirements on a person seeking
257     a license or renewal of a license to conduct business as a retail tobacco specialty business.
258          (b) A county may suspend or revoke a retail tobacco specialty business license issued
259     under this section:
260          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
261     Part 16, Pattern of Unlawful Activity Act;
262          (ii) if a licensee violates federal law or federal regulations restricting the sale and
263     distribution of tobacco products or electronic cigarette products to protect children and
264     adolescents;
265          (iii) upon the recommendation of the department or a local health department under
266     Title 26, Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit; or
267          (iv) under any other provision of state law or local ordinance.
268          (7) (a) [Except as provided in Subsection (8), a] A retail tobacco specialty business
269     [that has a] is exempt from Subsection (4) if:
270          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
271     license [and] to conduct business as a retail tobacco specialty business;
272          (ii) the retail tobacco specialty business is operating in a county in accordance with all
273     applicable laws except for the requirement in Subsection (4)[, on or before December 31, 2018,
274     is exempt from Subsection (4).]; and
275          (iii) beginning July 1, 2021, the retail tobacco specialty business is not located within
276     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
277           (b) A retail tobacco specialty business may maintain an exemption under Subsection
278     (7)(a) if:
279          (i) the [retail tobacco specialty business] license described in Subsection (7)(a)(i) is
280     renewed continuously without lapse or permanent revocation;
281          (ii) the retail tobacco specialty business does not close for business or otherwise
282     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
283     more than 60 consecutive days;
284          (iii) the retail tobacco specialty business does not substantially change the business
285     premises or business operation; and
286          (iv) the retail tobacco specialty business maintains the right to operate under the terms
287     of other applicable laws, including:
288          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
289          (B) zoning ordinances;
290          (C) building codes; and
291          [(D) the requirements of a retail tobacco specialty business license issued before
292     December 31, 2018.]
293          [(8) Beginning August 15, 2020, a retail tobacco specialty business that has a business
294     license and is operating in a county may not be located within 1,000 feet of any school.]
295          (D) the requirements of the license described in Subsection (7)(a)(i).
296          (c) A retail tobacco specialty business that does not qualify for an exemption under
297     Subsection (7)(a) is exempt from Subsection (4) if:
298          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
299     general tobacco retailer permit or a retail tobacco specialty business permit under Title 26,
300     Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local
301     health department having jurisdiction over the area in which the retail tobacco specialty
302     business is located;
303          (ii) the retail tobacco specialty business is operating in the county in accordance with
304     all applicable laws except for the requirement in Subsection (4); and
305          (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
306     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
307          (d) A retail tobacco specialty business may maintain an exemption under Subsection
308     (7)(c) if:
309          (i) on or before December 31, 2020, the retail tobacco specialty business receives a
310     retail tobacco specialty business permit from the local health department having jurisdiction
311     over the area in which the retail tobacco specialty business is located;
312          (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
313     or permanent revocation;
314          (iii) the retail tobacco specialty business does not close for business or otherwise
315     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
316     more than 60 consecutive days; and
317          (iv) the retail tobacco specialty business maintains the right to operate under the terms
318     of other applicable laws, including:
319          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
320          (B) zoning ordinances;
321          (C) building codes; and
322          (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
323          Section 3. Section 26-62-202 is amended to read:
324          26-62-202. Permit application.
325          (1) A local health department shall issue a permit under this chapter for a tobacco
326     retailer if the local health department determines that the applicant:
327          (a) accurately provided all information required under Subsection (3) and, if applicable,
328     Subsection (4); and
329          (b) meets all requirements for a permit under this chapter.
330          (2) An applicant for a permit shall:
331          (a) submit an application described in Subsection (3) to the local health department
332     with jurisdiction over the area where the tobacco retailer is located; and
333          (b) pay all applicable fees described in Section 26-62-203.
334          (3) The application for a permit shall include:
335          (a) the name, address, and telephone number of each proprietor;
336          (b) the name and mailing address of each proprietor authorized to receive
337     permit-related communication and notices;
338          (c) the business name, address, and telephone number of the single, fixed location for
339     which a permit is sought;
340          (d) evidence that the location for which a permit is sought has a valid tax commission
341     license;
342          (e) information regarding whether, in the past 24 months, any proprietor of the tobacco
343     retailer has been determined to have violated, or has been a proprietor at a location that has
344     been determined to have violated:
345          (i) a provision of this chapter;
346          (ii) Chapter 38, Utah Indoor Clean Air Act;
347          (iii) Title 76, Chapter 10, Part 1, Cigarettes and Tobacco and Psychotoxic Chemical
348     Solvents;
349          (iv) Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
350          (v) regulations restricting the sale and distribution of cigarettes and smokeless tobacco
351     issued by the United States Food and Drug Administration, 21 C.F.R. Part 1140; or
352          (vi) any other provision of state law or local ordinance regarding the sale, marketing, or
353     distribution of a tobacco product, an electronic cigarette product, or a nicotine product; and
354          (f) the dates of all violations disclosed under this Subsection (3).
355          (4) (a) In addition to the information described in Subsection (3), an applicant for a
356     retail tobacco specialty business permit shall include evidence showing whether the business is
357     located within:
358          (i) 1,000 feet of a community location;
359          (ii) 600 feet of another retail tobacco specialty business; or
360          (iii) 600 feet of property used or zoned for agricultural or residential use.
361          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
362     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
363     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
364     to intervening structures or zoning districts.
365          (5) The department or a local health department may not deny a permit to a retail
366     tobacco specialty business under Subsection (4) if the retail tobacco specialty business
367     [obtained a license to operate the retail tobacco specialty business before December 31, 2015,
368     from:] meets the requirements described in Subsection 10-8-41.6(7) or 17-50-333(7).
369          [(a) a municipality under Section 10-8-41.6; or]
370          [(b) a county under Section 17-50-333.]
371          (6) (a) The department shall establish by rule made in accordance with Title 63G,
372     Chapter 3, Utah Administrative Rulemaking Act, a permit process for local health departments
373     in accordance with this chapter.
374          (b) The permit process established by the department under Subsection (6)(a) may not
375     require any information in an application that is not required by this section.
376          Section 4. Section 63I-1-210 is amended to read:
377          63I-1-210. Repeal dates, Title 10.
378          [(1) Subsection 10-8-41.6(7), the language that states "December 31, 2018" is repealed
379     July 1, 2022, and replaced with "December 31, 2015".]
380          [(2)] Section 10-9a-526 is repealed December 31, 2020.
381          Section 5. Section 63I-1-217 is amended to read:
382          63I-1-217. Repeal dates, Title 17.
383          (1) Subsection 17-16-21(2)(d) is repealed July 1, 2023.
384          (2) Title 17, Chapter 21a, Part 3, Administration and Standards, which creates the Utah
385     Electronic Recording Commission, is repealed July 1, 2022.
386          [(3) Subsection 17-50-333(7), the language that states "December 31, 2018" is repealed
387     July 1, 2022, and replaced with "December 31, 2015".]
388          Section 6. Effective date -- Retrospective operation.
389          (1) If approved by two-thirds of all the members elected to each house, this bill takes
390     effect upon approval by the governor, or the day following the constitutional time limit of Utah
391     Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto,
392     the date of veto override.
393          (2) This bill has retrospective operation to August 15, 2020.
394