This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Tue, Mar 2, 2021 at 7:24 PM by lpoole.
Senator Curtis S. Bramble proposes the following substitute bill:


1     
TOBACCO RETAILER AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Evan J. Vickers

5     
House Sponsor: Paul Ray

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions relating to tobacco retailers.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends provisions relating to a retail tobacco specialty business that is within a
13     certain distance from a school;
14          ▸     modifies the requirements for a tobacco retail permit;
15          ▸     clarifies provisions relating to who may be in a retail tobacco specialty business;
16     and
17          ▸     modifies penalties for selling a tobacco product, electronic cigarette product, or a
18     nicotine product to an individual who is younger than 21 years old.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          10-8-41.6, as last amended by Laws of Utah 2020, Sixth Special Session, Chapter 18
26          17-50-333, as last amended by Laws of Utah 2020, Sixth Special Session, Chapter 18
27          26-62-205, as last amended by Laws of Utah 2020, Chapters 302, 347
28          26-62-304, as last amended by Laws of Utah 2020, Chapters 302, 347
29          26-62-305, as last amended by Laws of Utah 2020, Chapters 302, 347 and last amended
30     by Coordination Clause, Laws of Utah 2020, Chapter 302
31          26-62-306, as last amended by Laws of Utah 2020, Chapter 347
32          26-62-401, as enacted by Laws of Utah 2020, Chapter 302
33          76-10-105.1, as last amended by Laws of Utah 2020, Chapters 302 and 347
34     REPEALS:
35          26-62-402, as enacted by Laws of Utah 2020, Chapter 302
36     

37     Be it enacted by the Legislature of the state of Utah:
38          Section 1. Section 10-8-41.6 is amended to read:
39          10-8-41.6. Regulation of retail tobacco specialty business.
40          (1) As used in this section:
41          (a) "Community location" means:
42          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
43          (ii) a licensed child-care facility or preschool;
44          (iii) a trade or technical school;
45          (iv) a church;
46          (v) a public library;
47          (vi) a public playground;
48          (vii) a public park;
49          (viii) a youth center or other space used primarily for youth oriented activities;
50          (ix) a public recreational facility;
51          (x) a public arcade; or
52          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
53          (b) "Department" means the Department of Health, created in Section 26-1-4.
54          (c) "Electronic cigarette product" means the same as that term is defined in Section
55     76-10-101.
56          (d) "Flavored electronic cigarette product" means the same as that term is defined in
57     Section 76-10-101.
58          (e) "Licensee" means a person licensed under this section to conduct business as a
59     retail tobacco specialty business.
60          (f) "Local health department" means the same as that term is defined in Section
61     26A-1-102.
62          (g) "Nicotine product" means the same as that term is defined in Section 76-10-101.
63          (h) "Retail tobacco specialty business" means a commercial establishment in which:
64          (i) sales of tobacco products, electronic cigarette products, and nicotine products
65     account for more than 35% of the total quarterly gross receipts for the establishment;
66          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
67     storage of tobacco products, electronic cigarette products, or nicotine products;
68          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
69     tobacco products, electronic cigarette products, or nicotine products;
70          (iv) the commercial establishment:
71          (A) holds itself out as a retail tobacco specialty business; and
72          (B) causes a reasonable person to believe the commercial establishment is a retail
73     tobacco specialty business;
74          (v) any flavored electronic cigarette product is sold; or
75          (vi) the retail space features a self-service display for tobacco products, electronic
76     cigarette products, or nicotine products.
77          (i) "Self-service display" means the same as that term is defined in Section
78     76-10-105.1.
79          (j) "Tobacco product" means:
80          (i) a tobacco product as defined in Section 76-10-101; or
81          (ii) tobacco paraphernalia as defined in Section 76-10-101.
82          (2) The regulation of a retail tobacco specialty business is an exercise of the police
83     powers of the state by the state or by delegation of the state's police powers to other
84     governmental entities.
85          (3) (a) A person may not operate a retail tobacco specialty business in a municipality
86     unless the person obtains a license from the municipality in which the retail tobacco specialty
87     business is located.
88          (b) A municipality may only issue a retail tobacco specialty business license to a
89     person if the person complies with the provisions of Subsections (4) and (5).
90          (4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
91     a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
92     business is located within:
93          (i) 1,000 feet of a community location;
94          (ii) 600 feet of another retail tobacco specialty business; or
95          (iii) 600 feet from property used or zoned for:
96          (A) agriculture use; or
97          (B) residential use.
98          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
99     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
100     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
101     to intervening structures or zoning districts.
102          (5) A municipality may not issue or renew a license for a person to conduct business as
103     a retail tobacco specialty business until the person provides the municipality with proof that the
104     retail tobacco specialty business has:
105          (a) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
106     62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local health
107     department having jurisdiction over the area in which the retail tobacco specialty business is
108     located; and
109          (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
110     Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; and
111          (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
112     license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
113     electronic cigarette product or a nicotine product.
114          (6) (a) Nothing in this section:
115          (i) requires a municipality to issue a retail tobacco specialty business license; or
116          (ii) prohibits a municipality from adopting more restrictive requirements on a person
117     seeking a license or renewal of a license to conduct business as a retail tobacco specialty
118     business.
119          (b) A municipality may suspend or revoke a retail tobacco specialty business license
120     issued under this section:
121          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
122     Part 16, Pattern of Unlawful Activity Act;
123          (ii) if a licensee violates federal law or federal regulations restricting the sale and
124     distribution of tobacco products or electronic cigarette products to protect children and
125     adolescents;
126          (iii) upon the recommendation of the department or a local health department under
127     Title 26, Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit; or
128          (iv) under any other provision of state law or local ordinance.
129          (7) (a) A retail tobacco specialty business is exempt from Subsection (4) if:
130          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
131     license to conduct business as a retail tobacco specialty business;
132          (ii) the retail tobacco specialty business is operating in a municipality in accordance
133     with all applicable laws except for the requirement in Subsection (4); and
134          (iii) beginning July 1, [2021] 2022, the retail tobacco specialty business is not located
135     within 1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high
136     school.
137          (b) A retail tobacco specialty business may maintain an exemption under Subsection
138     (7)(a) if:
139          (i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
140     or permanent revocation;
141          (ii) the retail tobacco specialty business does not close for business or otherwise
142     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
143     more than 60 consecutive days;
144          (iii) the retail tobacco specialty business does not substantially change the business
145     premises or business operation; and
146          (iv) the retail tobacco specialty business maintains the right to operate under the terms
147     of other applicable laws, including:
148          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
149          (B) zoning ordinances;
150          (C) building codes; and
151          (D) the requirements of the license described in Subsection (7)(a)(i).
152          (c) A retail tobacco specialty business that does not qualify for an exemption under
153     Subsection (7)(a) is exempt from Subsection (4) if:
154          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
155     general tobacco retailer permit or a retail tobacco specialty business permit under Title 26,
156     Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local
157     health department having jurisdiction over the area in which the retail tobacco specialty
158     business is located;
159          (ii) the retail tobacco specialty business is operating in the municipality in accordance
160     with all applicable laws except for the requirement in Subsection (4); and
161          (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
162     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
163          (d) [A] Except as provided in Subsection (7)(e), a retail tobacco specialty business may
164     maintain an exemption under Subsection (7)(c) if:
165          (i) on or before December 31, 2020, the retail tobacco specialty business receives a
166     retail tobacco specialty business permit from the local health department having jurisdiction
167     over the area in which the retail tobacco specialty business is located;
168          (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
169     or permanent revocation;
170          (iii) the retail tobacco specialty business does not close for business or otherwise
171     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
172     more than 60 consecutive days; [and]
173          (iv) the retail tobacco specialty business does not substantially change the business
174     premises or business operation as the business existed when the retail tobacco specialty
175     business received a permit under Subsection (7)(d)(i); and
176          [(iv)] (v) the retail tobacco specialty business maintains the right to operate under the
177     terms of other applicable laws, including:
178          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
179          (B) zoning ordinances;
180          (C) building codes; and
181          (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
182          (e) A retail tobacco specialty business described in Subsection (7)(a) or (b) that is
183     located within 1,000 feet of a public or private kindergarten, elementary, middle, junior high,
184     or high school before July 1, 2022, is exempt from Subsection (4)(a)(iii)(B) if the retail tobacco
185     specialty business:
186          (i) relocates, before July 1, 2022, to a property that is used or zoned for commercial use
187     and located within a group of architecturally unified commercial establishments built on a site
188     that is planned, developed, owned, and managed as an operating unit; and
189          (ii) continues to meet the requirements described in Subsection (7)(b) that are not
190     directly related to the relocation described in this Subsection (7)(e).
191          Section 2. Section 17-50-333 is amended to read:
192          17-50-333. Regulation of retail tobacco specialty business.
193          (1) As used in this section:
194          (a) "Community location" means:
195          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
196          (ii) a licensed child-care facility or preschool;
197          (iii) a trade or technical school;
198          (iv) a church;
199          (v) a public library;
200          (vi) a public playground;
201          (vii) a public park;
202          (viii) a youth center or other space used primarily for youth oriented activities;
203          (ix) a public recreational facility;
204          (x) a public arcade; or
205          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
206          (b) "Department" means the Department of Health, created in Section 26-1-4.
207          (c) "Electronic cigarette product" means the same as that term is defined in Section
208     76-10-101.
209          (d) "Flavored electronic cigarette product" means the same as that term is defined in
210     Section 76-10-101.
211          (e) "Licensee" means a person licensed under this section to conduct business as a
212     retail tobacco specialty business.
213          (f) "Local health department" means the same as that term is defined in Section
214     26A-1-102.
215          (g) "Nicotine product" means the same as that term is defined in Section 76-10-101.
216          (h) "Retail tobacco specialty business" means a commercial establishment in which:
217          (i) sales of tobacco products, electronic cigarette products, and nicotine products
218     account for more than 35% of the total quarterly gross receipts for the establishment;
219          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
220     storage of tobacco products, electronic cigarette products, or nicotine products;
221          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
222     tobacco products, electronic cigarette products, or nicotine products;
223          (iv) the commercial establishment:
224          (A) holds itself out as a retail tobacco specialty business; and
225          (B) causes a reasonable person to believe the commercial establishment is a retail
226     tobacco specialty business;
227          (v) any flavored electronic cigarette product is sold; or
228          (vi) the retail space features a self-service display for tobacco products, electronic
229     cigarette products, or nicotine products.
230          (i) "Self-service display" means the same as that term is defined in Section
231     76-10-105.1.
232          (j) "Tobacco product" means:
233          (i) the same as that term is defined in Section 76-10-101; or
234          (ii) tobacco paraphernalia as defined in Section 76-10-101.
235          (2) The regulation of a retail tobacco specialty business is an exercise of the police
236     powers of the state by the state or by the delegation of the state's police power to other
237     governmental entities.
238          (3) (a) A person may not operate a retail tobacco specialty business in a county unless
239     the person obtains a license from the county in which the retail tobacco specialty business is
240     located.
241          (b) A county may only issue a retail tobacco specialty business license to a person if
242     the person complies with the provisions of Subsections (4) and (5).
243          (4) (a) Except as provided in Subsection (7), a county may not issue a license for a
244     person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
245     business is located within:
246          (i) 1,000 feet of a community location;
247          (ii) 600 feet of another retail tobacco specialty business; or
248          (iii) 600 feet from property used or zoned for:
249          (A) agriculture use; or
250          (B) residential use.
251          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
252     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
253     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
254     to intervening structures or zoning districts.
255          (5) A county may not issue or renew a license for a person to conduct business as a
256     retail tobacco specialty business until the person provides the county with proof that the retail
257     tobacco specialty business has:
258          (a) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
259     62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local health
260     department having jurisdiction over the area in which the retail tobacco specialty business is
261     located; and
262          (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
263     Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; or
264          (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
265     license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
266     electronic cigarette product or a nicotine product.
267          (6) (a) Nothing in this section:
268          (i) requires a county to issue a retail tobacco specialty business license; or
269          (ii) prohibits a county from adopting more restrictive requirements on a person seeking
270     a license or renewal of a license to conduct business as a retail tobacco specialty business.
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 federal law or federal regulations restricting the sale and
276     distribution of tobacco products or electronic cigarette products to protect children and
277     adolescents;
278          (iii) upon the recommendation of the department or a local health department under
279     Title 26, Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit; or
280          (iv) under any other provision of state law or local ordinance.
281          (7) (a) [A] Except as provided in Subsection (7)(e), a retail tobacco specialty business
282     is exempt from Subsection (4) if:
283          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
284     license to conduct business as a retail tobacco specialty business;
285          (ii) the retail tobacco specialty business is operating in a county in accordance with all
286     applicable laws except for the requirement in Subsection (4); and
287          (iii) beginning July 1, [2021] 2022, the retail tobacco specialty business is not located
288     within 1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high
289     school.
290          (b) A retail tobacco specialty business may maintain an exemption under Subsection
291     (7)(a) if:
292          (i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
293     or permanent revocation;
294          (ii) the retail tobacco specialty business does not close for business or otherwise
295     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
296     more than 60 consecutive days;
297          (iii) the retail tobacco specialty business does not substantially change the business
298     premises or business operation; and
299          (iv) the retail tobacco specialty business maintains the right to operate under the terms
300     of other applicable laws, including:
301          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
302          (B) zoning ordinances;
303          (C) building codes; and
304          (D) the requirements of the license described in Subsection (7)(a)(i).
305          (c) A retail tobacco specialty business that does not qualify for an exemption under
306     Subsection (7)(a) is exempt from Subsection (4) if:
307          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
308     general tobacco retailer permit or a retail tobacco specialty business permit under Title 26,
309     Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local
310     health department having jurisdiction over the area in which the retail tobacco specialty
311     business is located;
312          (ii) the retail tobacco specialty business is operating in the county in accordance with
313     all applicable laws except for the requirement in Subsection (4); and
314          (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
315     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
316          (d) A retail tobacco specialty business may maintain an exemption under Subsection
317     (7)(c) if:
318          (i) on or before December 31, 2020, the retail tobacco specialty business receives a
319     retail tobacco specialty business permit from the local health department having jurisdiction
320     over the area in which the retail tobacco specialty business is located;
321          (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
322     or permanent revocation;
323          (iii) the retail tobacco specialty business does not close for business or otherwise
324     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
325     more than 60 consecutive days; [and]
326          (iv) the retail tobacco specialty business does not substantially change the business
327     premises or business operation as the business existed when the retail tobacco specialty
328     business received a permit under Subsection (7)(d)(i); and
329          [(iv)] (v) the retail tobacco specialty business maintains the right to operate under the
330     terms of other applicable laws, including:
331          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
332          (B) zoning ordinances;
333          (C) building codes; and
334          (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
335          (e) A retail tobacco specialty business described in Subsection (7)(a) or (b) that is
336     located within 1,000 feet of a public or private kindergarten, elementary, middle, junior high,
337     or high school before July 1, 2022, is exempt from Subsection (4)(a)(iii)(B) if the retail tobacco
338     specialty business:
339          (i) relocates, before July 1, 2022, to a property that is used or zoned for commercial use
340     and located within a group of architecturally unified commercial establishments built on a site
341     that is planned, developed, owned, and managed as an operating unit; and
342          (ii) continues to meet the requirements described in Subsection (7)(b) that are not
343     directly related to the relocation described in this Subsection (7)(e).
344          Section 3. Section 26-62-205 is amended to read:
345          26-62-205. Permit requirements for a retail tobacco specialty business.
346          (1) A retail tobacco specialty business shall:
347          [(1)] (a) electronically verify proof of age for any individual that enters the premises of
348     the business in accordance with Part 4, Proof of Age Requirements;
349          [(2)] (b) except as provided in Subsection 76-10-105.1(4), prohibit any individual from
350     entering the business if the individual is under 21 years old; and
351          [(3)] (c) prominently display at the retail tobacco specialty business a sign on the
352     public entrance of the business that communicates:
353          [(a)] (i) the prohibition on the presence of an individual under 21 years old in a retail
354     tobacco specialty business in Subsection 76-10-105.1(4); and
355          [(b)] (ii) the prohibition on the sale of tobacco products and electronic cigarette
356     products to an individual under 21 years old as described in Sections 76-10-104, 76-10-104.1,
357     76-10-105.1, and 76-10-114.
358          (2) A retail tobacco specialty business may not:
359          (a) employ an individual under 21 years old to sell a tobacco product, an electronic
360     cigarette product, or a nicotine product; or
361          (b) permit an employee under 21 years old to sell a tobacco product, an electronic
362     cigarette product, or a nicotine product.
363          Section 4. Section 26-62-304 is amended to read:
364          26-62-304. Hearing -- Evidence of criminal conviction.
365          (1) At a civil hearing conducted under Section 26-62-302, evidence of the final
366     criminal conviction of a tobacco retailer [or employee] for violation of Section 76-10-114 at
367     the same location and within the same time period as the location and time period alleged in
368     the civil hearing for violation of this chapter for sale of a tobacco product, an electronic
369     cigarette product, or a nicotine product to an individual under 21 years old is prima facie
370     evidence of a violation of this chapter.
371          (2) If the tobacco retailer is convicted of violating Section 76-10-114, the enforcing
372     agency:
373          (a) [may not] shall assess an additional monetary penalty under this chapter for the
374     same offense for which the conviction was obtained; and
375          (b) [may] shall revoke or suspend a permit in accordance with Section 26-62-305 or
376     26-62-402.
377          Section 5. Section 26-62-305 is amended to read:
378          26-62-305. Penalties.
379          (1) (a) If an enforcing agency determines that a person has violated the terms of a
380     permit issued under this chapter, the enforcing agency may impose the penalties described in
381     this section.
382          (b) If multiple violations are found in a single inspection by an enforcing agency or a
383     single investigation by a law enforcement agency under Section 77-39-101, the enforcing
384     agency shall treat the multiple violations as one single violation under Subsections (2), (3), and
385     (4).
386          (2) Except as provided in [Subsection] Subsections (3) [and Section 26-62-402] and
387     (4), if a violation is found in [an inspection by an enforcing agency or] an investigation by a
388     law enforcement agency under Section 77-39-101 or an inspection by an enforcing agency, the
389     enforcing agency shall:
390          (a) on a first violation at a retail location, impose a penalty of [no more than $500]
391     $1,000;
392          (b) on a second violation at the same retail location that occurs within one year of a
393     previous violation, impose a penalty of [no more than $750] $1,500;
394          (c) on a third violation at the same retail location that occurs within two years after two
395     previous violations, impose:
396          (i) a suspension of the permit for 30 consecutive business days within 60 days after the
397     day on which the third violation occurs; or
398          (ii) a penalty of [no more than $1,000] $2,000; and
399          (d) on a fourth or subsequent violation within two years of three previous violations:
400          (i) impose a penalty of [no more than $1,000] $2,000;
401          (ii) revoke a permit of the retailer; and
402          (iii) if applicable, recommend to a municipality or county that a retail tobacco specialty
403     business license issued under Section 10-8-41.6 or 17-50-333 be suspended or revoked.
404          (3) If a violation is found in an investigation of a general tobacco retailer by a law
405     enforcement agency under Section 77-39-101 for the sale of a tobacco product, an electronic
406     cigarette product, or a nicotine product to an individual under 21 years old Ŝ→ [[] ←Ŝ and the
406a     violation is
407     committed by the owner of the general tobacco retailer Ŝ→ []] ←Ŝ , the enforcing agency shall:
408          (a) on a first violation, impose a fine of [no more than] $2,000 on the general tobacco
409     retailer; and
410          (b) on the second violation for the same general tobacco retailer within one year of the
411     first violation:
412          (i) impose a fine [not exceeding] of $5,000; and
413          (ii) revoke the permit for the general tobacco retailer.
414          (4) If a violation is found in an investigation of a retail tobacco specialty business by a
415     law enforcement agency under Section 77-39-101 for the sale of a tobacco product, an
416     electronic cigarette product, or a nicotine product to an individual under 21 years old, the
417     enforcing agency shall[ apply the provisions of Section 26-62-402.]:
418          (a) on the first violation:
419          (i) impose a fine of $5,000; and
420          (ii) immediately suspend the permit for 30 consecutive days; and
421          (b) on the second violation at the same retail location within two years of the first
422     violation:
423          (i) impose a fine of $10,000; and
424          (ii) revoke the permit for the retail tobacco specialty business.
425          (5) (a) Except when a transfer described in Subsection (6) occurs, a local health
426     department may not issue a permit to:
427          (i) a tobacco retailer for whom a permit is suspended or revoked under Subsection (2)
428     or (3) or Section 26-62-402; or
429          (ii) a tobacco retailer that has the same proprietor, director, corporate officer, partner,
430     or other holder of significant interest as another tobacco retailer for whom a permit is
431     suspended or revoked under Subsection (2) [or], (3), or [Section 26-62-402] (4).
432          (b) A person whose permit:
433          (i) is suspended under this section may not apply for a new permit for any other
434     tobacco retailer for a period of 12 months after the day on which an enforcing agency suspends
435     the permit; and
436          (ii) is revoked under this section [or Section 26-62-402] may not apply for a new
437     permit for any tobacco retailer for a period of 24 months after the day on which an enforcing
438     agency revokes the permit.
439          (6) Violations of this chapter, Section 10-8-41.6, or Section 17-50-333[, or Section
440     26-62-402] that occur at a tobacco retailer location shall stay on the record for that tobacco
441     retailer location unless:
442          (a) the tobacco retailer is transferred to a new proprietor; and
443          (b) the new proprietor provides documentation to the local health department that the
444     new proprietor is acquiring the tobacco retailer in an arm's length transaction from the previous
445     proprietor.
446          Section 6. Section 26-62-306 is amended to read:
447          26-62-306. Recognition of tobacco retailer training program.
448          (1) In determining the amount of the monetary penalty to be imposed for [an
449     employee's] a violation of this chapter, a hearing officer shall reduce the civil penalty by at
450     least 50% if the hearing officer determines that:
451          (a) the tobacco retailer has implemented a documented employee training program; and
452          (b) the employees have completed that training program within 30 days after the day on
453     which each employee commences the duties of selling a tobacco product, an electronic
454     cigarette product, or a nicotine product.
455          (2) (a) For the first offense at a location, if the hearing officer determines under
456     Subsection (1) that the tobacco retailer [licensee] has not implemented a documented training
457     program with a written curriculum for employees at that location regarding compliance with
458     this chapter, the hearing officer may suspend all or a portion of the penalty if:
459          (i) the tobacco retailer agrees to initiate a training program for employees at that
460     location; and
461          (ii) the training program begins within 30 days after the hearing officer makes a
462     determination under this Subsection (2)(a).
463          (b) If the hearing officer determines at a subsequent hearing that the tobacco retailer
464     has not implemented the training program within the time period required under Subsection
465     (2)(a)(ii), the hearing officer shall promptly impose the suspended monetary penalty, unless the
466     tobacco retailer demonstrates good cause for an extension of time for implementation of the
467     training program.
468          Section 7. Section 26-62-401 is amended to read:
469          26-62-401. Verification of proof of age.
470          (1) As used in this section:
471          (a) "Employee" means an employee of a retail tobacco specialty business.
472          (b) "Electronic verification program" means a technology used by a retail tobacco
473     specialty business to confirm proof of age for an individual.
474          (2) A retail tobacco specialty business shall require that an employee verify proof of
475     age as provided in this section.
476          (3) To comply with Subsection (2), an employee shall:
477          (a) request the individual present proof of age; and
478          (b) verify the validity of the proof of age electronically in accordance with Subsection
479     (4).
480          (4) A retail tobacco specialty business shall use an electronic verification program to
481     assist the business in complying with the requirements of this section.
482          (5) (a) A retail tobacco specialty business may not disclose information obtained under
483     this section except as provided under this part.
484          (b) Information obtained under this section:
485          (i) shall be kept for at least 180 days; and
486          (ii) is subject to inspection upon request by a peace officer or the representative of an
487     enforcing agency.
488          (6) (a) If an employee does not verify proof of age under this section, the employee
489     may not permit an individual to:
490          (i) except as provided in Subsection (6)(b), enter a retail tobacco specialty business; or
491          (ii) purchase a tobacco product or an electronic cigarette product.
492          (b) In accordance with Subsection 76-10-105.1(4), an individual who is under 21 years
493     old may be permitted to enter a retail tobacco specialty business if the individual is:
494          (i) [the individual is] accompanied by a parent or legal guardian who provides proof of
495     age; or
496          (ii) (A) [the individual is] present at the retail tobacco specialty [shop for a bona fide
497     commercial purpose other than to purchase a tobacco product or an electronic cigarette
498     product.] business solely for the purpose of providing a commercial service to the retail
499     tobacco specialty business, including making a commercial delivery;
500          (B) monitored by the proprietor of the retail tobacco specialty business or an employee
501     of the retail tobacco specialty business; and
502          (C) not permitted to make any purchase or conduct any commercial transaction other
503     than the service described in Subsection (6)(b)(ii)(A).
504          (7) To determine whether the individual described in Subsection (2) is 21 years old or
505     older, the following may request an individual described in Subsection (2) to present proof of
506     age:
507          (a) an employee;
508          (b) a peace officer; or
509          (c) a representative of an enforcing agency.
510          Section 8. Section 76-10-105.1 is amended to read:
511          76-10-105.1. Requirement of direct, face-to-face sale of a tobacco product, an
512     electronic cigarette product, or a nicotine product -- Minors not allowed in tobacco
513     specialty shop -- Penalties.
514          (1) As used in this section:
515          (a) (i) "Face-to-face exchange" means a transaction made in person between an
516     individual and a retailer or retailer's employee.
517          (ii) "Face-to-face exchange" does not include a sale through a:
518          (A) vending machine; or
519          (B) self-service display.
520          (b) "Retailer" means a person who:
521          (i) sells a tobacco product, an electronic cigarette product, or a nicotine product to an
522     individual for personal consumption; or
523          (ii) operates a facility with a vending machine that sells a tobacco product, an
524     electronic cigarette product, or a nicotine product.
525          (c) "Self-service display" means a display of a tobacco product, an electronic cigarette
526     product, or a nicotine product to which the public has access without the intervention of a
527     retailer or retailer's employee.
528          (2) Except as provided in Subsection (3), a retailer may sell a tobacco product, an
529     electronic cigarette product, or a nicotine product only in a face-to-face exchange.
530          (3) The face-to-face sale requirement in Subsection (2) does not apply to:
531          (a) a mail-order, telephone, or Internet sale made in compliance with Section
532     59-14-509;
533          (b) a sale from a vending machine or self-service display that is located in an area of a
534     retailer's facility:
535          (i) that is distinct and separate from the rest of the facility; and
536          (ii) where the retailer only allows an individual who complies with Subsection (4) to be
537     present; or
538          (c) a sale at a retail tobacco specialty business.
539          (4) An individual who is under 21 years old may not enter or be present at a retail
540     tobacco specialty business unless the individual is:
541          (a) accompanied by a parent or legal guardian; or
542          (b) (i) present at the retail tobacco specialty business [for a bona fide commercial
543     purpose other than to purchase a tobacco product, an electronic cigarette product, or a nicotine
544     product.] solely for the purpose of providing a service to the retail tobacco specialty business,
545     including making a delivery;
546          (ii) monitored by the proprietor of the retail tobacco specialty business or an employee
547     of the retail tobacco specialty business; and
548          (iii) not permitted to make any purchase or conduct any commercial transaction other
549     than the service described in Subsection (4)(b)(i).
550          (5) A parent or legal guardian who accompanies, under Subsection (4)(a), an individual
551     into an area described in Subsection (3)(b) or into a retail tobacco specialty business may not
552     allow the individual to purchase a tobacco product, an electronic cigarette product, or a
553     nicotine product.
554          (6) A violation of Subsection (2) or (4) is a:
555          (a) class C misdemeanor on the first offense;
556          (b) class B misdemeanor on the second offense; and
557          (c) class A misdemeanor on any subsequent offenses.
558          (7) An individual who violates Subsection (5) is guilty of an offense under Section
559     76-10-104.
560          Section 9. Repealer.
561          This bill repeals:
562          Section 26-62-402, Penalties.