2001 Legislation
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HOUSE BILL NO. 363 – Tobacco products, sale to minor

HOUSE BILL NO. 363

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H0363......................................................by STATE AFFAIRS
TOBACCO PRODUCTS - SALE TO MINORS - Amends and repeals existing law
relating to the sale or distribution of tobacco products to a minor; to
further define terms, placing enforcement with the Idaho State Police; to
provide that civil penalties shall be deposited to the General Fund; and to
abolish the Prevention of Minors' Access to Tobacco Fund.
                                                                        
03/14    House intro - 1st rdg - to printing
03/15    Rpt prt - to St Aff

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 363
                                                                        
                                 BY STATE AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SALE OR DISTRIBUTION OF TOBACCO PRODUCTS TO A MINOR; AMENDING SEC-
  3        TION 39-5701, IDAHO CODE, TO REVISE A STATEMENT  OF  LEGISLATIVE  FINDINGS
  4        AND  INTENT; AMENDING SECTION 39-5702, IDAHO CODE, TO FURTHER DEFINE TERMS
  5        AND TO PROVIDE ENFORCEMENT OF THIS CHAPTER BY IDAHO STATE POLICE; AMENDING
  6        SECTION 39-5708, IDAHO CODE, AS  AMENDED  BY  SENATE  BILL  NO.  1048,  AS
  7        ENACTED BY THE FIRST REGULAR SESSION OF THE FIFTY-SIXTH IDAHO LEGISLATURE,
  8        TO  PROVIDE  THAT  CIVIL PENALTIES SHALL BE DEPOSITED TO THE GENERAL FUND;
  9        AMENDING SECTION 39-5710, IDAHO CODE, AS AMENDED BY SENATE BILL NO.  1048,
 10        AS  ENACTED BY THE FIRST REGULAR SESSION OF THE FIFTY-SIXTH IDAHO LEGISLA-
 11        TURE, TO GOVERN THE CONDUCT OF ENFORCEMENT ACTIONS; AND REPEALING  SECTION
 12        39-5711, IDAHO CODE.
                                                                        
 13    Be It Enacted by the Legislature of the State of Idaho:
 14
 15        SECTION  1.  That  Section 39-5701, Idaho Code, be, and the same is hereby
 16    amended to read as follows:
                                                                        
 17        39-5701.  LEGISLATIVE FINDINGS AND INTENT. The prevention of youth  access
 18    to tobacco products within the state of Idaho is hereby declared to be a state
 19    goal  to  promote  the  general  health  and  welfare of Idaho's young people.
 20    Twenty-seven percent (27%) of Idaho's youth currently smoke and almost twenty-
 21    seven percent (27%) of boys in Idaho use chewing  tobacco  which  is  signifi-
 22    cantly higher than the national average.
 23        Tobacco  is the number one killer in Idaho causing more deaths by far than
 24    alcohol, illegal drugs, car crashes, homicides, suicides, fires and AIDS  com-
 25    bined.  According  to  the  center  for  disease control and prevention (CDC),
 26    twenty-four thousand three hundred ninety-four (24,394) children in Idaho cur-
 27    rently under eighteen (18) years of age will  die  prematurely  from  tobacco-
 28    related  disease.  Tobacco costs the state over two hundred forty million dol-
 29    lars ($240,000,000) each year and is the  single  most  preventable  cause  of
 30    death and disability in Idaho.
 31        Furthermore, tobacco is usually the first drug used by young people who go
 32    on  to  use  alcohol  and other illegal drugs. A study from the CDC shows that
 33    teens who smoke are three (3) times more likely than nonsmokers to  use  alco-
 34    hol,  eight  (8) times more likely to use marijuana, and twenty-two (22) times
 35    more likely to use cocaine.
 36        Most minors buy their own tobacco products or steal from self-service dis-
 37    plays. Additionally, vending machines also create easy access for minors and a
 38    report from the CDC shows that even when vending machines  are  restricted  to
 39    "adult  areas"  such  as bars, children still succeed in purchasing cigarettes
 40    from vending machines.
 41        Therefore, iIt is this state's policy to prevent the illegal  sale,  theft
 42    and  easy access of tobacco products to minors and to prohibit the possession,
 43    distribution and use of tobacco products by minors and  to  punish  those  who
 44    disregard this law.
                                                                        
                                           2
                                                                        
  1        SECTION  2.  That  Section 39-5702, Idaho Code, be, and the same is hereby
  2    amended to read as follows:
                                                                        
  3        39-5702.  DEFINITIONS. The terms used in this chapter are defined as  fol-
  4    lows:
  5        (1)  "Business" means any company, partnership, firm, sole proprietorship,
  6    association,  corporation, organization, or other legal entity, or a represen-
  7    tative of the foregoing entities.
  8        (2)  "Department" means the Idaho state department of health  and  welfare
  9    police or its duly authorized representative.
 10        (3)  "Distribute"  means  to  give, deliver, sell, offer to give, offer to
 11    deliver, offer to sell or cause any person to do the same or hire  any  person
 12    to do the same.
 13        (4)  "Minor" means a person under eighteen (18) years of age.
 14        (5)  "Permit" means a permit issued by the department for the sale or dis-
 15    tribution of tobacco products.
 16        (6)  "Permittee"  means  the holder of a valid permit for the sale or dis-
 17    tribution of tobacco products.
 18        (7)  "Photographic identification"  means  state,  district,  territorial,
 19    possession,  provincial,  national  or  other  equivalent  government driver's
 20    license, identification card or military card, in all cases bearing  a  photo-
 21    graph and a date of birth, or a valid passport.
 22        (8)  "Random unannounced inspection" means an inspection of retail outlets
 23    by  a  law enforcement agency or by the department, with or without the assis-
 24    tance of a minor, to monitor compliance of this chapter.
 25        (9)  "Sample" means the use of generally recognized statistical  practices
 26    in conformity with the selection protocol as defined in 45 CFR 130.
 27        (10) "Seller" means the person who physically sells or distributes tobacco
 28    products.
 29        (101) "Tobacco  product" means any substance that contains tobacco includ-
 30    ing, but not limited to, cigarettes, cigars, pipes,  snuff,  smoking  tobacco,
 31    tobacco papers, or smokeless tobacco.
 32        (112) "Vending  machine" means any mechanical, electronic or other similar
 33    device which, upon the insertion of tokens, money or any other  form  of  pay-
 34    ment, dispenses tobacco products.
 35        (123) "Vendor  assisted sales" means any sale or distribution in which the
 36    customer has no access to the product except through  the  assistance  of  the
 37    seller.
 38        (134) "Without a permit" means a business that has failed to obtain a per-
 39    mit or a business whose permit is suspended or revoked.
                                                                        
 40        SECTION  3.  That  Section  39-5708, Idaho Code, as amended by Senate Bill
 41    No. 1048, as enacted by the First Regular Session  of  the  Fifty-sixth  Idaho
 42    Legislature,  be, and the same is hereby amended to read as follows:
                                                                        
 43        39-5708.  CIVIL  PENALTIES  FOR  VIOLATIONS   OF PERMIT. Any permittee who
 44    fails to comply with any part of this chapter, or any current state  or  local
 45    law  or rule or regulation regarding the sale or distribution of tobacco prod-
 46    ucts shall be subject to a civil penalty as provided in this section  or  have
 47    their  permit suspended, pursuant to compliance with the contested case provi-
 48    sions of the Idaho administrative procedure act, chapter 52, title  67,  Idaho
 49    Code, or both.
 50        (1)  If  a  seller  who is not a permittee violates section 39-5705, Idaho
 51    Code, and sells or distributes tobacco products to a minor, the  seller  shall
 52    be fined one hundred dollars ($100).
                                                                        
                                           3
                                                                        
  1        (2)  In  the case of a first violation, the permittee shall be notified in
  2    writing of penalties to be levied for further violations.
  3        (3)  In the case of a second violation, the permittee shall be fined   two
  4    hundred  dollars  ($200)  and  shall be notified in writing of penalties to be
  5    levied for further violations. For a violation of section 39-5705, Idaho Code,
  6    the permittee shall not be fined if the permittee can  show  that  a  training
  7    program was in place for the employee and that the permittee has a form signed
  8    by that employee on file stating that they understand the tobacco laws dealing
  9    with  minors  and the unlawful purchase of tobacco, but the permittee shall be
 10    notified in writing of penalties to be levied for any further violations.   If
 11    no such training is in place, the permittee shall be fined two hundred dollars
 12    ($200).
 13        (4)  In  the  case of a third violation in a two (2) year period, the per-
 14    mittee shall be fined two hundred dollars ($200) and the permit  may  be  sus-
 15    pended  for  up  to seven (7) days. If the violation is by an employee, at the
 16    same location, who was involved in any previous citation  for  violation,  the
 17    permittee  shall be fined four hundred dollars ($400).  Effective training and
 18    employment practices by the permittee, as determined by the  department  shall
 19    be  a  mitigating  factor  in determining permit suspension. Tobacco retailers
 20    must remove all tobacco products from all areas accessible to  or  visible  to
 21    the public while the permit is suspended.
 22        (5)  In  the  case  of  four  (4) or more violations within a two (2) year
 23    period, the permittee shall be fined four hundred dollars ($400) and the  per-
 24    mit shall be revoked until such time that the permittee demonstrates an effec-
 25    tive  training  plan to the department, but in no case shall the revocation be
 26    for less than thirty (30) days. Tobacco  retailers  must  remove  all  tobacco
 27    products  from all areas accessible to or visible to the public while the per-
 28    mit is revoked.
 29        (6)  All moneys collected for violations pursuant to this section shall be
 30    remitted to the prevention of minors' access to tobacco fund created  in  sec-
 31    tion 39-5711, Idaho Code general fund.
                                                                        
 32        SECTION  4.  That  Section  39-5710, Idaho Code, as amended by Senate Bill
 33    No. 1048, as enacted by the First Regular Session  of  the  Fifty-sixth  Idaho
 34    Legislature,  be, and the same is hereby amended to read as follows:
                                                                        
 35        39-5710.  CONDUCT OF ENFORCEMENT ACTIONS. (1) It is the intent of the leg-
 36    islature  that law enforcement agencies and the department  shall enforce this
 37    chapter and rules promulgated pursuant thereto in a manner that can reasonably
 38    be expected to significantly reduce the extent to which tobacco  products  are
 39    sold or distributed to minors.
 40        (2)  Law  enforcement agencies may conduct random, unannounced inspections
 41    at locations where tobacco products are sold or distributed to ensure  compli-
 42    ance  with  this chapter. A copy of all citations issued inspections conducted
 43    under this chapter shall be submitted to the department.
 44        (3)  Each year tThe department shall conduct  at  least  one  (1)  random,
 45    unannounced inspections per year, with the assistance of a minor, at all loca-
 46    tions  where tobacco products are sold or distributed at retail to ensure com-
 47    pliance with this chapter. Each  year  the  department  shall  conduct  random
 48    unannounced  inspections,  with the assistance of a minor, equal to the number
 49    of permittees multiplied by the violation percentage  rate  reported  for  the
 50    previous year multiplied by a factor of ten (10) of a representative sample of
 51    permittees  with the assistance of a minor. Local law enforcement agencies are
 52    encouraged to contract with the department to perform these  required  inspec-
 53    tions.
                                                                        
                                           4
                                                                        
  1        (4)  Minors may assist with random, unannounced inspections with the writ-
  2    ten  consent  of a parent or legal guardian. When assisting with these inspec-
  3    tions, minors shall not provide  false  identification,  nor  make  any  false
  4    statement regarding their age.
  5        (5)  Citizens  may file a written complaint of noncompliance of this chap-
  6    ter with the department, or with a law enforcement agency. Complaints shall be
  7    investigated and the proper enforcement actions taken.
  8        (6)  Within a reasonable time, nNot later than two (2) business days after
  9    an inspection has occurred, a representative of the business  inspected  shall
 10    be informed in writing of the results of the any inspection.
                                                                        
 11        SECTION  5.  That  Section 39-5711, Idaho Code, be, and the same is hereby
 12    repealed.

Statement of Purpose / Fiscal Impact


                  STATEMENT OF PURPOSE

                        RS 11226C2

This legislation removes the enforcement responsibility of the 
Prevention of Minors' Access to Tobacco Law from the Department 
of Health and Welfare and gives it to the Idaho State Police. 
It changes the formula for the required number of stings to one 
that is possible for the State Police to perform. It removes the 
emergency clause thus giving the State Police until July 1, 2001, 
to prepare for the program. It removes dated and unnecessary 
language in the intent language. It gives a definition for 
"sample". It directs that all fines that are levied will be placed 
in the General Fund.




                         FISCAL IMPACT

The Joint Finance and Appropriations Committee has appropriated 
$300,000.00 to the Idaho State Police to fund this program.






Contact
Name:	Sen. Clyde Boatright Rep. Wayne Meyer
Phone:	(208) 332-1000


STATEMENT OF PURPOSE/FISCAL NOTE		H 363