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          ▸     creates restrictions on the sale or transfer of a retail tobacco specialty business;
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; and
19          ▸     adds nicotine products to provisions relating to the sale, use, and possession of
20     tobacco products and electronic cigarette products.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          10-8-41.6, as last amended by Laws of Utah 2020, Sixth Special Session, Chapter 18
28          17-50-333, as last amended by Laws of Utah 2020, Sixth Special Session, Chapter 18
29          26-62-202, as last amended by Laws of Utah 2020, Sixth Special Session, Chapter 18
30          26-62-205, as last amended by Laws of Utah 2020, Chapters 302, 347
31          26-62-301, as last amended by Laws of Utah 2020, Chapter 347
32          26-62-303, as enacted by Laws of Utah 2018, Chapter 231
33          26-62-304, as last amended by Laws of Utah 2020, Chapters 302, 347
34          26-62-305, as last amended by Laws of Utah 2020, Chapters 302, 347 and last amended
35     by Coordination Clause, Laws of Utah 2020, Chapter 302
36          26-62-306, as last amended by Laws of Utah 2020, Chapter 347
37          26-62-401, as enacted by Laws of Utah 2020, Chapter 302
38          76-10-105.1, as last amended by Laws of Utah 2020, Chapters 302 and 347
39          76-10-111, as last amended by Laws of Utah 2020, Chapters 302 and 347
40          76-10-114, as enacted by Laws of Utah 2020, Chapter 302
41          76-10-115, as enacted by Laws of Utah 2020, Chapter 302
42     REPEALS:
43          26-62-402, as enacted by Laws of Utah 2020, Chapter 302
44     

45     Be it enacted by the Legislature of the state of Utah:
46          Section 1. Section 10-8-41.6 is amended to read:
47          10-8-41.6. Regulation of retail tobacco specialty business.
48          (1) As used in this section:
49          (a) "Community location" means:
50          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
51          (ii) a licensed child-care facility or preschool;
52          (iii) a trade or technical school;
53          (iv) a church;
54          (v) a public library;
55          (vi) a public playground;
56          (vii) a public park;
57          (viii) a youth center or other space used primarily for youth oriented activities;
58          (ix) a public recreational facility;
59          (x) a public arcade; or
60          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
61          (b) "Department" means the Department of Health, created in Section 26-1-4.
62          (c) "Electronic cigarette product" means the same as that term is defined in Section
63     76-10-101.
64          (d) "Flavored electronic cigarette product" means the same as that term is defined in
65     Section 76-10-101.
66          (e) "Licensee" means a person licensed under this section to conduct business as a
67     retail tobacco specialty business.
68          (f) "Local health department" means the same as that term is defined in Section
69     26A-1-102.
70          (g) "Nicotine product" means the same as that term is defined in Section 76-10-101.
71          (h) "Retail tobacco specialty business" means a commercial establishment in which:
72          (i) sales of tobacco products, electronic cigarette products, and nicotine products
73     account for more than 35% of the total quarterly gross receipts for the establishment;
74          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
75     storage of tobacco products, electronic cigarette products, or nicotine products;
76          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
77     tobacco products, electronic cigarette products, or nicotine products;
78          (iv) the commercial establishment:
79          (A) holds itself out as a retail tobacco specialty business; and
80          (B) causes a reasonable person to believe the commercial establishment is a retail
81     tobacco specialty business;
82          (v) any flavored electronic cigarette product is sold; or
83          (vi) the retail space features a self-service display for tobacco products, electronic
84     cigarette products, or nicotine products.
85          (i) "Self-service display" means the same as that term is defined in Section
86     76-10-105.1.
87          (j) "Tobacco product" means:
88          (i) a tobacco product as defined in Section 76-10-101; or
89          (ii) tobacco paraphernalia as defined in Section 76-10-101.
90          (2) The regulation of a retail tobacco specialty business is an exercise of the police
91     powers of the state by the state or by delegation of the state's police powers to other
92     governmental entities.
93          (3) (a) A person may not operate a retail tobacco specialty business in a municipality
94     unless the person obtains a license from the municipality in which the retail tobacco specialty
95     business is located.
96          (b) A municipality may only issue a retail tobacco specialty business license to a
97     person if the person complies with the provisions of Subsections (4) and (5).
98          (4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
99     a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
100     business is located within:
101          (i) 1,000 feet of a community location;
102          (ii) 600 feet of another retail tobacco specialty business; or
103          (iii) 600 feet from property used or zoned for:
104          (A) agriculture use; or
105          (B) residential use.
106          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
107     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
108     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
109     to intervening structures or zoning districts.
110          (5) A municipality may not issue or renew a license for a person to conduct business as
111     a retail tobacco specialty business until the person provides the municipality with proof that the
112     retail tobacco specialty business has:
113          (a) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
114     62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local health
115     department having jurisdiction over the area in which the retail tobacco specialty business is
116     located; and
117          (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
118     Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; and
119          (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
120     license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
121     electronic cigarette product or a nicotine product.
122          (6) (a) Nothing in this section:
123          (i) requires a municipality to issue a retail tobacco specialty business license; or
124          (ii) prohibits a municipality from adopting more restrictive requirements on a person
125     seeking a license or renewal of a license to conduct business as a retail tobacco specialty
126     business.
127          (b) A municipality may suspend or revoke a retail tobacco specialty business license
128     issued under this section:
129          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
130     Part 16, Pattern of Unlawful Activity Act;
131          (ii) if a licensee violates federal law or federal regulations restricting the sale and
132     distribution of tobacco products or electronic cigarette products to protect children and
133     adolescents;
134          (iii) upon the recommendation of the department or a local health department under
135     Title 26, Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit; or
136          (iv) under any other provision of state law or local ordinance.
137          (7) (a) A retail tobacco specialty business is exempt from Subsection (4) if:
138          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
139     license to conduct business as a retail tobacco specialty business; and
140          (ii) the retail tobacco specialty business is operating in a municipality in accordance
141     with all applicable laws except for the requirement in Subsection (4)[; and].
142          [(iii) beginning July 1, 2021, the retail tobacco specialty business is not located within
143     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.]
144          (b) A retail tobacco specialty business may maintain an exemption under Subsection
145     (7)(a) if:
146          (i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
147     or permanent revocation;
148          (ii) the retail tobacco specialty business does not close for business or otherwise
149     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
150     more than 60 consecutive days;
151          (iii) the retail tobacco specialty business does not substantially change the business
152     premises or business operation; and
153          (iv) the retail tobacco specialty business maintains the right to operate under the terms
154     of other applicable laws, including:
155          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
156          (B) zoning ordinances;
157          (C) building codes; and
158          (D) the requirements of the license described in Subsection (7)(a)(i).
159          (c) A retail tobacco specialty business that does not qualify for an exemption under
160     Subsection (7)(a) is exempt from Subsection (4) if:
161          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
162     general tobacco retailer permit or a retail tobacco specialty business permit under Title 26,
163     Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local
164     health department having jurisdiction over the area in which the retail tobacco specialty
165     business is located; and
166          (ii) the retail tobacco specialty business is operating in the municipality in accordance
167     with all applicable laws except for the requirement in Subsection (4)[; and].
168          [(iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
169     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.]
170          (d) A retail tobacco specialty business may maintain an exemption under Subsection
171     (7)(c) if:
172          (i) on or before December 31, 2020, the retail tobacco specialty business receives a
173     retail tobacco specialty business permit from the local health department having jurisdiction
174     over the area in which the retail tobacco specialty business is located;
175          (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
176     or permanent revocation;
177          (iii) the retail tobacco specialty business does not close for business or otherwise
178     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
179     more than 60 consecutive days; [and]
180          (iv) the retail tobacco specialty business does not substantially change the business
181     premises or business operation as the business existed when the retail tobacco specialty
182     business received a permit under Subsection (7)(d)(i); and
183          [(iv)] (v) the retail tobacco specialty business maintains the right to operate under the
184     terms of other applicable laws, including:
185          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
186          (B) zoning ordinances;
187          (C) building codes; and
188          (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
189          Section 2. Section 17-50-333 is amended to read:
190          17-50-333. Regulation of retail tobacco specialty business.
191          (1) As used in this section:
192          (a) "Community location" means:
193          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
194          (ii) a licensed child-care facility or preschool;
195          (iii) a trade or technical school;
196          (iv) a church;
197          (v) a public library;
198          (vi) a public playground;
199          (vii) a public park;
200          (viii) a youth center or other space used primarily for youth oriented activities;
201          (ix) a public recreational facility;
202          (x) a public arcade; or
203          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
204          (b) "Department" means the Department of Health, created in Section 26-1-4.
205          (c) "Electronic cigarette product" means the same as that term is defined in Section
206     76-10-101.
207          (d) "Flavored electronic cigarette product" means the same as that term is defined in
208     Section 76-10-101.
209          (e) "Licensee" means a person licensed under this section to conduct business as a
210     retail tobacco specialty business.
211          (f) "Local health department" means the same as that term is defined in Section
212     26A-1-102.
213          (g) "Nicotine product" means the same as that term is defined in Section 76-10-101.
214          (h) "Retail tobacco specialty business" means a commercial establishment in which:
215          (i) sales of tobacco products, electronic cigarette products, and nicotine products
216     account for more than 35% of the total quarterly gross receipts for the establishment;
217          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
218     storage of tobacco products, electronic cigarette products, or nicotine products;
219          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
220     tobacco products, electronic cigarette products, or nicotine products;
221          (iv) the commercial establishment:
222          (A) holds itself out as a retail tobacco specialty business; and
223          (B) causes a reasonable person to believe the commercial establishment is a retail
224     tobacco specialty business;
225          (v) any flavored electronic cigarette product is sold; or
226          (vi) the retail space features a self-service display for tobacco products, electronic
227     cigarette products, or nicotine products.
228          (i) "Self-service display" means the same as that term is defined in Section
229     76-10-105.1.
230          (j) "Tobacco product" means:
231          (i) the same as that term is defined in Section 76-10-101; or
232          (ii) tobacco paraphernalia as defined in Section 76-10-101.
233          (2) The regulation of a retail tobacco specialty business is an exercise of the police
234     powers of the state by the state or by the delegation of the state's police power to other
235     governmental entities.
236          (3) (a) A person may not operate a retail tobacco specialty business in a county unless
237     the person obtains a license from the county in which the retail tobacco specialty business is
238     located.
239          (b) A county may only issue a retail tobacco specialty business license to a person if
240     the person complies with the provisions of Subsections (4) and (5).
241          (4) (a) Except as provided in Subsection (7), a county may not issue a license for a
242     person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
243     business is located within:
244          (i) 1,000 feet of a community location;
245          (ii) 600 feet of another retail tobacco specialty business; or
246          (iii) 600 feet from property used or zoned for:
247          (A) agriculture use; or
248          (B) residential use.
249          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
250     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
251     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
252     to intervening structures or zoning districts.
253          (5) A county may not issue or renew a license for a person to conduct business as a
254     retail tobacco specialty business until the person provides the county with proof that the retail
255     tobacco specialty business has:
256          (a) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
257     62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local health
258     department having jurisdiction over the area in which the retail tobacco specialty business is
259     located; and
260          (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
261     Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; or
262          (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
263     license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
264     electronic cigarette product or a nicotine product.
265          (6) (a) Nothing in this section:
266          (i) requires a county to issue a retail tobacco specialty business license; or
267          (ii) prohibits a county from adopting more restrictive requirements on a person seeking
268     a license or renewal of a license to conduct business as a retail tobacco specialty business.
269          (b) A county may suspend or revoke a retail tobacco specialty business license issued
270     under this section:
271          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
272     Part 16, Pattern of Unlawful Activity Act;
273          (ii) if a licensee violates federal law or federal regulations restricting the sale and
274     distribution of tobacco products or electronic cigarette products to protect children and
275     adolescents;
276          (iii) upon the recommendation of the department or a local health department under
277     Title 26, Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit; or
278          (iv) under any other provision of state law or local ordinance.
279          (7) (a) A retail tobacco specialty business is exempt from Subsection (4) if:
280          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
281     license to conduct business as a retail tobacco specialty business; and
282          (ii) the retail tobacco specialty business is operating in a county in accordance with all
283     applicable laws except for the requirement in Subsection (4)[; and].
284          [(iii) beginning July 1, 2021, the retail tobacco specialty business is not located within
285     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.]
286          (b) A retail tobacco specialty business may maintain an exemption under Subsection
287     (7)(a) if:
288          (i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
289     or permanent revocation;
290          (ii) the retail tobacco specialty business does not close for business or otherwise
291     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
292     more than 60 consecutive days;
293          (iii) the retail tobacco specialty business does not substantially change the business
294     premises or business operation; and
295          (iv) the retail tobacco specialty business maintains the right to operate under the terms
296     of other applicable laws, including:
297          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
298          (B) zoning ordinances;
299          (C) building codes; and
300          (D) the requirements of the license described in Subsection (7)(a)(i).
301          (c) A retail tobacco specialty business that does not qualify for an exemption under
302     Subsection (7)(a) is exempt from Subsection (4) if:
303          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
304     general tobacco retailer permit or a retail tobacco specialty business permit under Title 26,
305     Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local
306     health department having jurisdiction over the area in which the retail tobacco specialty
307     business is located; and
308          (ii) the retail tobacco specialty business is operating in the county in accordance with
309     all applicable laws except for the requirement in Subsection (4)[; and].
310          [(iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
311     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.]
312          (d) A retail tobacco specialty business may maintain an exemption under Subsection
313     (7)(c) if:
314          (i) on or before December 31, 2020, the retail tobacco specialty business receives a
315     retail tobacco specialty business permit from the local health department having jurisdiction
316     over the area in which the retail tobacco specialty business is located;
317          (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
318     or permanent revocation;
319          (iii) the retail tobacco specialty business does not close for business or otherwise
320     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
321     more than 60 consecutive days; [and]
322          (iv) the retail tobacco specialty business does not substantially change the business
323     premises or business operation as the business existed when the retail tobacco specialty
324     business received a permit under Subsection (7)(d)(i); and
325          [(iv)] (v) the retail tobacco specialty business maintains the right to operate under the
326     terms of other applicable laws, including:
327          (A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
328          (B) zoning ordinances;
329          (C) building codes; and
330          (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
331          Section 3. Section 26-62-202 is amended to read:
332          26-62-202. Permit application.
333          (1) A local health department shall issue a permit under this chapter for a tobacco
334     retailer if the local health department determines that the applicant:
335          (a) accurately provided all information required under Subsection (3) and, if applicable,
336     Subsection (4); and
337          (b) meets all requirements for a permit under this chapter.
338          (2) An applicant for a permit shall:
339          (a) submit an application described in Subsection (3) to the local health department
340     with jurisdiction over the area where the tobacco retailer is located; and
341          (b) pay all applicable fees described in Section 26-62-203.
342          (3) The application for a permit shall include:
343          (a) the name, address, and telephone number of each proprietor;
344          (b) the name and mailing address of each proprietor authorized to receive
345     permit-related communication and notices;
346          (c) the business name, address, and telephone number of the single, fixed location for
347     which a permit is sought;
348          (d) evidence that the location for which a permit is sought has a valid tax commission
349     license;
350          (e) information regarding whether, in the past 24 months, any proprietor of the tobacco
351     retailer has been determined to have violated, or has been a proprietor at a location that has
352     been determined to have violated:
353          (i) a provision of this chapter;
354          (ii) Chapter 38, Utah Indoor Clean Air Act;
355          (iii) Title 76, Chapter 10, Part 1, Cigarettes and Tobacco and Psychotoxic Chemical
356     Solvents;
357          (iv) Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
358          (v) a provision of the Federal Food, Drug, and Cosmetic Act, Subchapter IX, 21 U.S.C.
359     Sec. 387 et seq.;
360          [(v)] (vi) regulations restricting the sale and distribution of cigarettes and smokeless
361     tobacco issued by the United States Food and Drug Administration, 21 C.F.R. Part 1140; or
362          [(vi)] (vii) any other provision of state law or local ordinance regarding the sale,
363     marketing, or distribution of a tobacco product, an electronic cigarette product, or a nicotine
364     product; and
365          (f) the dates of all violations disclosed under this Subsection (3).
366          (4) (a) In addition to the information described in Subsection (3), an applicant for a
367     retail tobacco specialty business permit shall include evidence showing whether the business is
368     located within:
369          (i) 1,000 feet of a community location;
370          (ii) 600 feet of another retail tobacco specialty business; or
371          (iii) 600 feet of property used or zoned for agricultural or residential use.
372          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
373     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
374     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
375     to intervening structures or zoning districts.
376          (5) The department or a local health department may not deny a permit to a retail
377     tobacco specialty business under Subsection (4) if the retail tobacco specialty business meets
378     the requirements described in Subsection 10-8-41.6(7) or 17-50-333(7).
379          (6) (a) The department shall establish by rule made in accordance with Title 63G,
380     Chapter 3, Utah Administrative Rulemaking Act, a permit process for local health departments
381     in accordance with this chapter.
382          (b) The permit process established by the department under Subsection (6)(a) may not
383     require any information in an application that is not required by this section.
384          Section 4. Section 26-62-205 is amended to read:
385          26-62-205. Permit requirements for a retail tobacco specialty business.
386          (1) A retail tobacco specialty business shall:
387          [(1)] (a) electronically verify proof of age for any individual that enters the premises of
388     the business in accordance with Part 4, Proof of Age Requirements;
389          [(2)] (b) except as provided in Subsection 76-10-105.1(4), prohibit any individual from
390     entering the business if the individual is under 21 years old; and
391          [(3)] (c) prominently display at the retail tobacco specialty business a sign on the
392     public entrance of the business that communicates:
393          [(a)] (i) the prohibition on the presence of an individual under 21 years old in a retail
394     tobacco specialty business in Subsection 76-10-105.1(4); and
395          [(b)] (ii) the prohibition on the sale of tobacco products and electronic cigarette
396     products to an individual under 21 years old as described in Sections 76-10-104, 76-10-104.1,
397     76-10-105.1, and 76-10-114.
398          (2) A retail tobacco specialty business may not:
399          (a) employ an individual under 21 years old to sell a tobacco product, an electronic
400     cigarette product, or a nicotine product; or
401          (b) permit an employee under 21 years old to sell a tobacco product, an electronic
402     cigarette product, or a nicotine product.
403          Section 5. Section 26-62-301 is amended to read:
404          26-62-301. Permit violation.
405          A person is in violation of the permit issued under this chapter if the person violates:
406          (1) a provision of this chapter;
407          (2) a provision of licensing laws under Section 10-8-41.6 or Section 17-50-333;
408          (3) a provision of Title 76, Chapter 10, Part 1, Cigarettes and Tobacco and Psychotoxic
409     Chemical Solvents;
410          (4) a provision of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
411          (5) a provision of the Federal Food, Drug, and Cosmetic Act, Subchapter IX, 21 U.S.C.
412     Sec. 387 et seq.;
413          [(5)] (6) a regulation restricting the sale and distribution of cigarettes and smokeless
414     tobacco issued by the United States Food and Drug Administration under 21 C.F.R. Part 1140;
415     or
416          [(6)] (7) any other provision of state law or local ordinance regarding the sale,
417     marketing, or distribution of a tobacco product, an electronic cigarette product, or a nicotine
418     product.
419          Section 6. Section 26-62-303 is amended to read:
420          26-62-303. Inspection of retail tobacco businesses.
421          The department or a local health department may inspect a tobacco retailer to determine
422     whether the tobacco retailer:
423          (1) continues to meet the qualifications for the permit issued under this chapter;
424          (2) if applicable, continues to meet the requirements for a retail tobacco specialty
425     business license issued under Section 10-8-41.6 or Section 17-50-333;
426          (3) engaged in a pattern of unlawful activity under Title 76, Chapter 10, Part 16,
427     Pattern of Unlawful Activity Act;
428          (4) violated a provision of the Federal Food, Drug, and Cosmetic Act, Subchapter IX,
429     21 U.S.C. Sec. 387 et seq.;
430          [(4)] (5) violated any of the regulations restricting the sale and distribution of cigarettes
431     and smokeless tobacco issued by the United States Food and Drug Administration under 21
432     C.F.R. Part 1140; or
433          [(5)] (6) has violated any other provision of state law or local ordinance.
434          Section 7. Section 26-62-304 is amended to read:
435          26-62-304. Hearing -- Evidence of criminal conviction.
436          (1) At a civil hearing conducted under Section 26-62-302, evidence of the final
437     criminal conviction of a tobacco retailer [or employee] for violation of Section 76-10-114 at
438     the same location and within the same time period as the location and time period alleged in
439     the civil hearing for violation of this chapter for sale of a tobacco product, an electronic
440     cigarette product, or a nicotine product to an individual under 21 years old is prima facie
441     evidence of a violation of this chapter.
442          (2) If the tobacco retailer is convicted of violating Section 76-10-114, the enforcing
443     agency:
444          (a) [may not] shall assess an additional monetary penalty under this chapter for the
445     same offense for which the conviction was obtained; and
446          (b) [may] shall revoke or suspend a permit in accordance with Section 26-62-305 [or
447     26-62-402].
448          Section 8. Section 26-62-305 is amended to read:
449          26-62-305. Penalties.
450          (1) (a) If an enforcing agency determines that a person has violated the terms of a
451     permit issued under this chapter, the enforcing agency [may] shall impose the penalties
452     described in this section.
453          (b) If multiple violations are found in a single inspection by an enforcing agency or
454     investigation by a law enforcement agency under Section 77-39-101, the enforcing agency shall
455     treat the multiple violations as one single violation under Subsections (2), (3), and (4), and the
456     enforcing agency shall impose the penalty described in Subsection (2).
457          (2) [Except as provided in Subsection (3) and Section 26-62-402, if] If a violation is
458     found in an inspection by an enforcing agency or from an investigation by a law enforcement
459     agency under Section 77-39-101, the enforcing agency shall:
460          (a) on the first violation:
461          (i) impose a fine of $5,000; and
462          (ii) immediately suspend the permit for 30 consecutive days; and
463          (b) on the second violation at the same retail location within two years of the first
464     violation:
465          (i) impose a fine of $10,000; and
466          (ii) revoke the permit for the tobacco retailer.
467          (3) If a violation of the permit under Section 26-62-301 is found in an inspection by an
468     enforcing agency under the provisions of this chapter, and the violation does not involve the
469     sale of a tobacco product, an electronic cigarette product, or a nicotine product to an individual
470     under 21 years old, the enforcing agency shall:
471          (a) on a first violation at a retail location, impose a penalty of [no more than] $500;
472          (b) on a second violation at the same retail location that occurs within one year of a
473     previous violation, impose a penalty of [no more than] $750;
474          (c) on a third violation at the same retail location that occurs within two years after two
475     previous violations, impose:
476          (i) a suspension of the permit for 30 consecutive business days within [60] 120 days
477     after the day on which the third violation occurs; [or] and
478          (ii) a penalty of [no more than] $1,000; and
479          (d) on a fourth or subsequent violation within two years of three previous violations:
480          (i) impose a penalty of [no more than $1,000] $1,500;
481          (ii) revoke a permit of the retailer; and
482          (iii) if applicable, recommend to a municipality or county that a retail tobacco specialty
483     business license issued under Section 10-8-41.6 or 17-50-333 be suspended or revoked.
484          [(3) If a violation is found in an investigation of a general tobacco retailer by a law
485     enforcement agency under Section 77-39-101 for the sale of a tobacco product, an electronic
486     cigarette product, or a nicotine product to an individual under 21 years old and the violation is
487     committed by the owner of the general tobacco retailer, the enforcing agency shall:]
488          [(a) on a first violation, impose a fine of no more than $2,000 on the general tobacco
489     retailer; and]
490          [(b) on the second violation for the same general tobacco retailer within one year of the
491     first violation:]
492          [(i) impose a fine not exceeding $5,000; and]
493          [(ii) revoke the permit for the general tobacco retailer.]
494          [(4) If a violation is found in an investigation of a retail tobacco specialty business by a
495     law enforcement agency under Section 77-39-101 for the sale of a tobacco product, an
496     electronic cigarette product, or a nicotine product to an individual under 21 years old, the
497     enforcing agency shall apply the provisions of Section 26-62-402.]
498          [(5)] (4) (a) [Except when a transfer described in Subsection (6) occurs, a] A local
499     health department may not issue a permit to:
500          (i) a tobacco retailer for whom a permit is suspended or revoked under Subsection (2)
501     or (3) [or Section 26-62-402]; or
502          (ii) a tobacco retailer that has the same proprietor, director, corporate officer, partner,
503     or other holder of significant interest as another tobacco retailer for whom a permit is
504     suspended or revoked under Subsection (2) or (3) [or Section 26-62-402].
505          (b) A person whose permit:
506          (i) is suspended under this section may not apply for a new permit for any other
507     tobacco retailer for a period of 12 months after the day on which an enforcing agency suspends
508     the permit; and
509          (ii) is revoked under this section [or Section 26-62-402] may not apply for a new
510     permit for any tobacco retailer for a period of 24 months after the day on which an enforcing
511     agency revokes the permit.
512          [(6)] (5) Violations of this chapter, Section 10-8-41.6, Section 17-50-333, or Section
513     26-62-402 that occur at a tobacco retailer location shall stay on the record for that tobacco
514     retailer location unless:
515          (a) the tobacco retailer is transferred to a new proprietor; and
516          (b) the new proprietor provides documentation to the local health department that the
517     new proprietor is acquiring the tobacco retailer in an arm's length transaction from the previous
518     proprietor.
519          Section 9. Section 26-62-306 is amended to read:
520          26-62-306. Recognition of tobacco retailer training program.
521          (1) In determining the amount of the monetary penalty to be imposed for [an
522     employee's] a violation of this chapter, a hearing officer shall reduce the civil penalty by at
523     least 50% if the hearing officer determines that:
524          (a) the tobacco retailer has implemented a documented employee training program; and
525          (b) the employees have completed that training program within 30 days after the day on
526     which each employee commences the duties of selling a tobacco product, an electronic
527     cigarette product, or a nicotine product.
528          (2) (a) For the first offense at a location, if the hearing officer determines under
529     Subsection (1) that the tobacco retailer [licensee] has not implemented a documented training
530     program with a written curriculum for employees at that location regarding compliance with
531     this chapter, the hearing officer may suspend all or a portion of the penalty if:
532          (i) the tobacco retailer agrees to initiate a training program for employees at that
533     location; and
534          (ii) the training program begins within 30 days after the hearing officer makes a
535     determination under this Subsection (2)(a).
536          (b) If the hearing officer determines at a subsequent hearing that the tobacco retailer
537     has not implemented the training program within the time period required under Subsection
538     (2)(a)(ii), the hearing officer shall promptly impose the suspended monetary penalty, unless the
539     tobacco retailer demonstrates good cause for an extension of time for implementation of the
540     training program.
541          Section 10. Section 26-62-401 is amended to read:
542          26-62-401. Verification of proof of age.
543          (1) As used in this section:
544          (a) "Employee" means an employee of a retail tobacco specialty business.
545          (b) "Electronic verification program" means a technology used by a retail tobacco
546     specialty business to confirm proof of age for an individual.
547          (2) A retail tobacco specialty business shall require that an employee verify proof of
548     age as provided in this section.
549          (3) To comply with Subsection (2), an employee shall:
550          (a) request the individual present proof of age; and
551          (b) verify the validity of the proof of age electronically in accordance with Subsection
552     (4).
553          (4) A retail tobacco specialty business shall use an electronic verification program to
554     assist the business in complying with the requirements of this section.
555          (5) (a) A retail tobacco specialty business may not disclose information obtained under
556     this section except as provided under this part.
557          (b) Information obtained under this section:
558          (i) shall be kept for at least 180 days; and
559          (ii) is subject to inspection upon request by a peace officer or the representative of an
560     enforcing agency.
561          (6) (a) If an employee does not verify proof of age under this section, the employee
562     may not permit an individual to:
563          (i) except as provided in Subsection (6)(b), enter a retail tobacco specialty business; or
564          (ii) purchase a tobacco product or an electronic cigarette product.
565          (b) In accordance with Subsection 76-10-105.1(4), an individual who is under 21 years
566     old may be permitted to enter a retail tobacco specialty business if the individual is:
567          (i) [the individual is] accompanied by a parent or legal guardian who provides proof of
568     age; or
569          (ii) (A) [the individual is] present at the retail tobacco specialty [shop for a bona fide
570     commercial purpose other than to purchase a tobacco product or an electronic cigarette
571     product.] business solely for the purpose of providing a commercial service to the retail
572     tobacco specialty business, including making a commercial delivery;
573          (B) monitored by the proprietor of the retail tobacco specialty business or an employee
574     of the retail tobacco specialty business; and
575          (C) not permitted to make any purchase or conduct any commercial transaction other
576     than the service described in Subsection (6)(b)(ii)(A).
577          (7) To determine whether the individual described in Subsection (2) is 21 years old or
578     older, the following may request an individual described in Subsection (2) to present proof of
579     age:
580          (a) an employee;
581          (b) a peace officer; or
582          (c) a representative of an enforcing agency.
583          Section 11. Section 76-10-105.1 is amended to read:
584          76-10-105.1. Requirement of direct, face-to-face sale of a tobacco product, an
585     electronic cigarette product, or a nicotine product -- Minors not allowed in tobacco
586     specialty shop -- Penalties.
587          (1) As used in this section:
588          (a) (i) "Face-to-face exchange" means a transaction made in person between an
589     individual and a retailer or retailer's employee.
590          (ii) "Face-to-face exchange" does not include a sale through a:
591          (A) vending machine; or
592          (B) self-service display.
593          (b) "Retailer" means a person who:
594          (i) sells a tobacco product, an electronic cigarette product, or a nicotine product to an
595     individual for personal consumption; or
596          (ii) operates a facility with a vending machine that sells a tobacco product, an
597     electronic cigarette product, or a nicotine product.
598          (c) "Self-service display" means a display of a tobacco product, an electronic cigarette
599     product, or a nicotine product to which the public has access without the intervention of a
600     retailer or retailer's employee.
601          (2) Except as provided in Subsection (3), a retailer may sell a tobacco product, an
602     electronic cigarette product, or a nicotine product only in a face-to-face exchange.
603          (3) The face-to-face sale requirement in Subsection (2) does not apply to:
604          (a) a mail-order, telephone, or Internet sale made in compliance with Section
605     59-14-509;
606          (b) a sale from a vending machine or self-service display that is located in an area of a
607     retailer's facility:
608          (i) that is distinct and separate from the rest of the facility; and
609          (ii) where the retailer only allows an individual who complies with Subsection (4) to be
610     present; or
611          (c) a sale at a retail tobacco specialty business.
612          (4) An individual who is under 21 years old may not enter or be present at a retail
613     tobacco specialty business unless the individual is:
614          (a) accompanied by a parent or legal guardian; or
615          (b) (i) present at the retail tobacco specialty business [for a bona fide commercial
616     purpose other than to purchase a tobacco product, an electronic cigarette product, or a nicotine
617     product.] solely for the purpose of providing a service to the retail tobacco specialty business,
618     including making a delivery;
619          (ii) monitored by the proprietor of the retail tobacco specialty business or an employee
620     of the retail tobacco specialty business; and
621          (iii) not permitted to make any purchase or conduct any commercial transaction other
622     than the service described in Subsection (4)(b)(i).
623          (5) A parent or legal guardian who accompanies, under Subsection (4)(a), an individual
624     into an area described in Subsection (3)(b) or into a retail tobacco specialty business may not
625     allow the individual to purchase a tobacco product, an electronic cigarette product, or a
626     nicotine product.
627          (6) A violation of Subsection (2) or (4) is a:
628          (a) class C misdemeanor on the first offense;
629          (b) class B misdemeanor on the second offense; and
630          (c) class A misdemeanor on any subsequent offenses.
631          (7) An individual who violates Subsection (5) is guilty of an offense under Section
632     76-10-104.
633          Section 12. Section 76-10-111 is amended to read:
634          76-10-111. Restrictions on sale of smokeless tobacco, electronic cigarette
635     products, or nicotine products -- Exceptions.
636          (1) The Legislature finds that:
637          (a) smokeless tobacco, or chewing tobacco, is harmful to the health of individuals who
638     use those products because research indicates that they may cause mouth or oral cancers;
639          (b) the use of smokeless tobacco among juveniles in this state is increasing rapidly;
640          (c) the use of electronic cigarette products may lead to unhealthy behavior such as the
641     use of tobacco products; and
642          (d) it is necessary to restrict the gift of the products described in this Subsection (1) in
643     the interest of the health of the citizens of this state.
644          (2) (a) Except as provided in Subsection (3), it is unlawful for a manufacturer,
645     wholesaler, and retailer to:
646          (i) give or distribute without charge any smokeless tobacco, chewing tobacco, [or]
647     electronic cigarette product, or nicotine product in this state;
648          (ii) sell, offer for sale, or furnish any electronic cigarette product or nicotine product at
649     less than the cost, including the amount of any applicable tax, of the product to the
650     manufacturer, wholesaler, or retailer; or
651          (iii) give, distribute, sell, offer for sale, or furnish any electronic cigarette product or
652     nicotine product for free or at a lower price because the recipient of the electronic cigarette
653     product or nicotine product makes another purchase.
654          (b) The price that a manufacturer, wholesaler, or retailer may charge under Subsection
655     (2)(a)(ii) does not include a discount for:
656          (i) a physical manufacturer coupon:
657          (A) that is surrendered to the wholesaler or retailer at the time of sale; and
658          (B) for which the manufacturer will reimburse the wholesaler or the retailer for the full
659     amount of the discount described in the manufacturer coupon and provided to the purchaser;
660          (ii) a rebate that will be paid to the manufacturer, the wholesaler, or the retailer for the
661     full amount of the rebate provided to the purchaser; or
662          (iii) a promotional fund that will be paid to the manufacturer, the wholesaler, or the
663     retailer for the full amount of the promotional fund provided to the purchaser.
664          (c) Any individual who violates this section is guilty of:
665          (i) a class C misdemeanor for the first offense; and
666          (ii) a class B misdemeanor for any subsequent offense.
667          (3) Smokeless tobacco, chewing tobacco, [or] an electronic cigarette product, or a
668     nicotine product may be distributed to adults without charge at professional conventions where
669     the general public is excluded.
670          Section 13. Section 76-10-114 is amended to read:
671          76-10-114. Unlawful sale of a tobacco product, electronic cigarette product, or
672     nicotine product.
673          (1) As used in this section:
674          (a) "Compensatory service" means service or unpaid work performed by an employee,
675     in lieu of the payment of a fine or imprisonment.
676          (b) "Employee" means an employee or an owner of a tobacco retailer.
677          (2) It is unlawful for an employee to knowingly or intentionally sell or give a tobacco
678     product [or], an electronic cigarette product, or a nicotine product in the course of business to
679     an individual who is under 21 years old.
680          (3) An employee who violates this section is:
681          (a) on a first violation:
682          (i) guilty of an infraction; and
683          (ii) subject to:
684          (A) a fine not exceeding $1,000; or
685          (B) compensatory service; and
686          (b) on any subsequent violation:
687          (i) guilty of a class C misdemeanor; and
688          (ii) subject to:
689          (A) a fine not exceeding $2,000; or
690          (B) compensatory service.
691          Section 14. Section 76-10-115 is amended to read:
692          76-10-115. Unlawful transfer or use of proof of age.
693          (1) As used in this section:
694          (a) "Proof of age" means:
695          (i) a valid identification card issued under Title 53, Chapter 3, Part 8, Identification
696     Card Act;
697          (ii) a valid identification that:
698          (A) is substantially similar to an identification card issued under Title 53, Chapter 3,
699     Part 8, Identification Card Act;
700          (B) is issued in accordance with the laws of a state other than Utah in which the
701     identification is issued;
702          (C) includes date of birth; and
703          (D) has a picture affixed;
704          (iii) a valid driver license certificate that is issued under Title 53, Chapter 3, Uniform
705     Driver License Act, or in accordance with the laws of the state in which the valid driver license
706     is issued;
707          (iv) a valid United States military identification card that:
708          (A) includes date of birth; and
709          (B) has a picture affixed; or
710          (v) a valid passport.
711          (b) "Proof of age" does not include a driving privilege card issued in accordance with
712     Section 53-3-207.
713          (2) An individual who knowingly and intentionally transfers that individual's proof of
714     age to another individual to aid that individual in purchasing a tobacco product [or], an
715     electronic cigarette product, or a nicotine product, or in gaining admittance to any part of the
716     premises of a retail tobacco specialty business, is guilty of a class B misdemeanor.
717          (3) An individual who knowingly and intentionally uses proof of age containing false
718     information with the intent to purchase a tobacco product [or], an electronic cigarette product,
719     or a nicotine product, or to gain admittance to any part of the premises of a retail tobacco
720     specialty business, is guilty of a class A misdemeanor.
721          Section 15. Repealer.
722          This bill repeals:
723          Section 26-62-402, Penalties.