2001 Legislation
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SENATE BILL NO. 1035 – Tobacco product/sale to minor/pnlty

SENATE BILL NO. 1035

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S1035......................................................by STATE AFFAIRS
TOBACCO PRODUCTS - SALE TO MINORS - Amends existing law relating to sale or
distribution of tobacco products to a minor to clarify the conditions which
constitute a violation; to provide a schedule of penalties for violations;
and to provide a formula for determination of the number of inspections to
be conducted.
                                                                        
01/25    Senate intro - 1st rdg - to printing
01/26    Rpt prt - to St Aff

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1035
                                                                        
                                 BY STATE AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SALE OR DISTRIBUTION OF TOBACCO PRODUCTS TO A MINOR; AMENDING SEC-
  3        TION 39-5705, IDAHO CODE, TO STRIKE A REQUIREMENT TO VERIFY AGE;  AMENDING
  4        SECTION 39-5708, IDAHO CODE, TO PROVIDE A SCHEDULE OF PENALTIES FOR VIOLA-
  5        TION OF PERMIT; AMENDING SECTION 39-5710, IDAHO CODE, TO PROVIDE A FORMULA
  6        FOR  DETERMINATION OF THE NUMBER OF INSPECTIONS TO BE CONDUCTED; DECLARING
  7        AN EMERGENCY AND PROVIDING RETROACTIVE APPLICATION.
                                                                        
  8    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  9        SECTION 1.  That Section 39-5705, Idaho Code, be, and the same  is  hereby
 10    amended to read as follows:
                                                                        
 11        39-5705.  SALE  OR  DISTRIBUTION  OF  TOBACCO  PRODUCTS TO A MINOR. (1) It
 12    shall be unlawful to sell, distribute or offer tobacco products to a minor.
 13        (2)  Tobacco products may not be sold or distributed at retail to any per-
 14    son under eighteen (18) years of age unless the  seller  first  verifies  that
 15    person's  age  by means of photographic identification containing the person's
 16    date of birth.
 17        (3)  It shall be an affirmative defense that the seller of a tobacco prod-
 18    uct to a minor in violation of this section had requested, examined  and  rea-
 19    sonably  relied upon a photographic identification from such person establish-
 20    ing that person's age as at least eighteen (18) years of age prior to  selling
 21    such  person a tobacco product. The failure of a seller to request and examine
 22    photographic identification from a person under eighteen  (18)  years  of  age
 23    prior  to  the  sale  of  a  tobacco product to such person shall be construed
 24    against the seller and form a conclusive basis for the seller's  violation  of
 25    this section.
                                                                        
 26        SECTION  2.  That  Section 39-5708, Idaho Code, be, and the same is hereby
 27    amended to read as follows:
                                                                        
 28        39-5708.  CIVIL PENALTIES FOR VIOLATIONS  OF  PERMIT.  Any  permittee  who
 29    fails  to  comply with any part of this chapter, or any current state or local
 30    law or rule or regulation regarding the sale or distribution of tobacco  prod-
 31    ucts  shall  be subject to a civil penalty as provided in this section or have
 32    their permit suspended, pursuant to compliance with the contested case  provi-
 33    sions  of  the Idaho administrative procedure act, chapter 52, title 67, Idaho
 34    Code, or both.
 35        (1)  If a seller who is not a permittee violates  section  39-5705,  Idaho
 36    Code,  and  sells or distributes tobacco products to a minor, the seller shall
 37    be fined one hundred dollars ($100).
 38        (2)  In the case of a first violation, the permittee shall be notified  in
 39    writing of penalties to be levied for further violations.
 40        (3)  In the case of a first second violation, the permittee shall be fined
 41    two hundred dollars ($200) and shall be notified in writing of penalties to be
                                                                        
                                           2
                                                                        
  1    levied for further violations. For a violation of section 39-5705, Idaho Code,
  2    the  permittee  shall  not  be fined if the permittee can show that a training
  3    program was in place for the employee and that the permittee has a form signed
  4    by that employee on file stating that they understand the tobacco laws dealing
  5    with minors and the unlawful purchase of tobacco, but the permittee  shall  be
  6    notified  in writing of penalties to be levied for any further violations.  If
  7    no such training is in place, the permittee shall be fined two hundred dollars
  8    ($200).
  9        (34)  In the case of a second third violation in a two  (2)  year  period,
 10    the  permittee  shall be fined four two hundred dollars ($4200) and the permit
 11    may be suspended for up to seven (7) days. If the violation is by an  employee
 12    of  the permittee who was involved in any previous citation for violation, the
 13    permittee shall be fined four hundred dollars ($400). Effective  training  and
 14    employment  practices  by the permittee, as determined by the department shall
 15    be a mitigating factor in determining  permit  suspension.  Tobacco  retailers
 16    must  remove  all  tobacco products from all areas accessible to or visible to
 17    the public while the permit is suspended.
 18        (45)  In the case of three four (34) or more violations within a  two  (2)
 19    year  period,  the  permittee shall be fined one thousand four hundred dollars
 20    ($1,0400) and the permit shall be revoked until such time that  the  permittee
 21    demonstrates  an  effective  training  plan  to the department, but in no case
 22    shall the revocation be for less than thirty (30) days. Tobacco retailers must
 23    remove all tobacco products from all areas accessible to  or  visible  to  the
 24    public while the permit is revoked.
 25        (56)  All  moneys  collected for violations pursuant to this section shall
 26    be remitted to the prevention of minors' access to  tobacco  fund  created  in
 27    section 39-5711, Idaho Code.
                                                                        
 28        SECTION  3.  That  Section 39-5710, Idaho Code, be, and the same is hereby
 29    amended to read as follows:
                                                                        
 30        39-5710.  CONDUCT OF ENFORCEMENT ACTIONS. (1) It is the intent of the leg-
 31    islature that law enforcement agencies and the department  shall enforce  this
 32    chapter and rules promulgated pursuant thereto in a manner that can reasonably
 33    be  expected  to significantly reduce the extent to which tobacco products are
 34    sold or distributed to minors.
 35        (2)  Law enforcement agencies may conduct random, unannounced  inspections
 36    at  locations where tobacco products are sold or distributed to ensure compli-
 37    ance with this chapter. A copy of all  citations  issued  under  this  chapter
 38    shall be submitted to the department.
 39        (3)  The   department   shall  conduct  at  least  two  one  (21)  random,
 40    unannounced inspections per year, with the assistance of a minor, at all loca-
 41    tions where tobacco products are sold or distributed at retail to ensure  com-
 42    pliance with this chapter. The department shall conduct additional inspections
 43    sufficient  to  equal  in  number  the  number of permittees multiplied by the
 44    violation percentage rate reported for the previous year multiplied by a  fac-
 45    tor  of  ten  (10).  Local law enforcement agencies are encouraged to contract
 46    with the department to perform these required inspections.
 47        (4)  Minors may assist with random, unannounced inspections with the writ-
 48    ten consent of a parent or legal guardian. When assisting with  these  inspec-
 49    tions,  minors  shall  not  provide  false  identification, nor make any false
 50    statement regarding their age.
 51        (5)  Citizens may file a written complaint of noncompliance of this  chap-
 52    ter with the department, or with a law enforcement agency. Complaints shall be
 53    investigated and the proper enforcement actions taken.
                                                                        
                                           3
                                                                        
  1        (6)  Within  a reasonable time, not later than two (2) business days after
  2    an inspection has occurred, a representative of the business  inspected  shall
  3    be informed in writing of the results of the inspection.
                                                                        
  4        SECTION  4.  An  emergency  existing  therefor,  which emergency is hereby
  5    declared to exist, this act shall be in full force and effect on and after its
  6    passage  and approval, and retroactively to January 1, 2001.

Statement of Purpose / Fiscal Impact


                 STATEMENT OF PURPOSE
                       RS10690C1
This legislation changes the sections dealing with the penalties
for the sale of tobacco to youth. The penalties remain the same
for the person who actually sells the tobacco to the youth. On
the first violation the permitee(person holding permit to sell,
usually the owner of the business) will be notified of penalties
to be levied for further violations. On the second offense
permitee will be fined $200.00 unless permitee can show that
there was a training program was in place and has a form signed
by the employee stating that they understand the tobacco laws dealing with
minors and the unlawful purchase of tobacco but permittee will be
notified in writing of penalties for further violations. If no
training program is in place the $200.09 fine will be levied.
Third offense - violation in a two year period. If the employee of
the permittee has been involved in a prior violation, the
employer shall be fined $400.00 and could Effective training will
a be a mitigating factor in determining permit suspension. In the
case of four or more violations in the two year period, the
permittee will be fined $400.00 and the permit will be revoked
until such time as the permittee can demonstrate that an effective
training program is in place but in any case the revocation shall
be no less than 30 days.

The Department will be required to do one instead of two random
inspections per year. ( Department has not been able to comply with
Idaho law)


                FISCAL IMPACT STATEMENT
                           
It is estimated that each inspection done by or for the
department cost approximately $70.00. This will cut those costs
in half with only one required inspection a year rather than two.




Contact:
Vicki Patterson, Idaho Petroleum Marketers Association
11303 Hickory Loop Drive
Boise, Id. 83713
              Phone:   321 7464
                 FAX:     321-4924
     email: Lincoln@micron . net



STATEMENT OF PURPOSE/FISCAL NOTE                                S 103