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