2001 Legislation
Print Friendly

SENATE BILL NO. 1048 – Tobacco product/sale to minor/pnlty

SENATE BILL NO. 1048

View Daily Data Tracking History

View Bill Text

View Statement of Purpose / Fiscal Impact



Text to be added within a bill has been marked with Bold and
Underline. Text to be removed has been marked with
Strikethrough and Italic. How these codes are actually displayed will
vary based on the browser software you are using.

This sentence is marked with bold and underline to show added text.

This sentence is marked with strikethrough and italic, indicating
text to be removed.

Daily Data Tracking History



S1048......................................................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.
                                                                        
01/30    Senate intro - 1st rdg - to printing
01/31    Rpt prt - to St Aff
02/09    Rpt out - rec d/p - to 2nd rdg
02/12    2nd rdg - to 3rd rdg
02/20    3rd rdg - PASSED - 32-1-2
      AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Bunderson,
      Burtenshaw, Cameron, Darrington, Davis, Deide, Dunklin, Frasure,
      Geddes, Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, Lodge,
      Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen, Stegner,
      Stennett, Thorne, Wheeler, Williams,
      NAYS -- Whitworth
      Absent and excused -- Danielson, Goedde
    Floor Sponsor -- King-Barrutia
    Title apvd - to House
02/21    House intro - 1st rdg - to St Aff
02/26    Rpt out - rec d/p - to 2nd rdg
02/27    2nd rdg - to 3rd rdg
02/28    3rd rdg - PASSED - 55-9-6
      AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Boe, Bolz,
      Bradford, Bruneel, Callister, Campbell, Chase, Collins, Cuddy, Deal,
      Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20), Gould,
      Hadley, Hammond, Harwood, Henbest, Hornbeck, Jones, Kendell, Kunz,
      Lake, Langford, Loertscher, Mader, Marley, McKague, Meyer,
      Montgomery, Mortensen, Moss, Moyle, Pearce, Raybould, Ridinger,
      Robison, Sali, Sellman, Shepherd, Smylie, Stevenson, Stone, Trail,
      Wheeler, Mr. Speaker
      NAYS -- Clark, Higgins, Kellogg, Pischner, Pomeroy, Smith, Tilman,
      Wood, Young
      Absent and excused -- Crow, Gagner, Jaquet, Roberts, Schaefer, Swan
    Floor Sponsor -- Hornbeck
    Title apvd - to Senate
03/01    To enrol
03/02    Rpt enrol - Pres signed
03/05    Sp signed
03/06    To Governor
03/08    Governor signed
         Session Law Chapter 39
         Effective: 01/01/01

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1048
                                                                        
                                 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    at the same location, who was involved in any previous citation for violation,
 13    the permittee shall be fined four hundred dollars ($400).  Effective  training
 14    and  employment  practices  by  the permittee, as determined by the department
 15    shall be  a  mitigating  factor  in  determining  permit  suspension.  Tobacco
 16    retailers  must  remove  all  tobacco products from all areas accessible to or
 17    visible to 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.  Each  year  the department shall conduct random
 43    unannounced inspections, with the assistance of a minor, equal to  the  number
 44    of  permittees  multiplied  by  the violation percentage rate reported for the
 45    previous year multiplied by a factor of ten (10). Local law enforcement  agen-
 46    cies  are encouraged to contract with the department to perform these required
 47    inspections.
 48        (4)  Minors may assist with random, unannounced inspections with the writ-
 49    ten consent of a parent or legal guardian. When assisting with  these  inspec-
 50    tions,  minors  shall  not  provide  false  identification, nor make any false
 51    statement regarding their age.
 52        (5)  Citizens may file a written complaint of noncompliance of this  chap-
 53    ter with the department, or with a law enforcement agency. Complaints shall be
                                                                        
                                           3
                                                                        
  1    investigated and the proper enforcement actions taken.
  2        (6)  Within  a reasonable time, not later than two (2) business days after
  3    an inspection has occurred, a representative of the business  inspected  shall
  4    be informed in writing of the results of the inspection.
                                                                        
  5        SECTION  4.  An  emergency  existing  therefor,  which emergency is hereby
  6    declared to exist, this act shall be in full force and effect on and after its
  7    passage  and approval, and retroactively to January 1, 2001.

Statement of Purpose / Fiscal Impact


                       STATEMENT OF PURPOSE

                            RS 10690C2




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 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. The permittee will be notified in writing of penalties 
for further violations. If no training program is in place the $200.00
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 and is still 
working in the same store, the employer shall be fined $400.00 and his or her 
permit could be suspended. Effective training will 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. In any case, the revocation shall be no less than 
30 days.

The Department will be required to do at least one instead of two random 
inspections per year. ( Department has not been able to comply with Idaho law) 
Effective date of this legislation would be January 1, 2001.


In March of 2000, the U. S. Supreme Court determined that the Federal Drug 
Administration (FDA) had not been given authority to regulate tobacco and 
therefore the FDA no longer had the ability to fund inspections of tobacco 
retailers. The cost of inspections required under I.C. seq, had been funded with 
an FDA grant. The program is projected $370,000 in General Fund dollars to fund the
inspections of tobacco retailers required by state law using the following formula.

Number of Permits Issued for FY2001 = 1,845 (this is down from the 1,950 used
to project originally for budget request)

Under current law at least two inspections per outlet: 1,845 x 2 = 3,690 Cost per inspection
(from 1999 cost figures): $89.00

Budget to perform 3,690 inspections: 3,690 x $89.00 = $328,410.00 Add: 5% Program
Administration:    (328,410 x .05)  = 16,420.50

Total Program Budget Projection (under current law) $344,830.50


Number of Permits Issued for FY2001 = 1,845
Reported violation rate = 18.8%
Calculation for number of inspections for 2002   number of permits issued x
violation rate x 10, or:

1,845 x .188 x 10 = 3,468

Budget to perform 3,468 inspections: 3,468 x $89.00 $308,652.00
    Add:     5% Program Adinistration: (308,652 x .05) = 15,432.60

Total Program Budget Projection (under SB 1048)     $324,084.60

VARIANCE BETWEEN BUDGET PROJECTIONS:           $20,745.90
Legislation results in savings of $20, 746 based on the current program budget, 
and rewards retailers by lowering number of inspections as violation rate comes down.


Contact:
Vicki Patterson
Idaho Petroleum Marketers Association
321 7464

STATEMENT OF PURPOSE/FISCAL NOTE                     S 1048


REVISED				REVISED			REVISED			REVISED