Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 189 Fourth Substitute (2021GS)

Sponsor

Sen. Vickers, E.

Final action

Governor Signed 3/17/2021

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• amends provisions relating to a retail tobacco specialty business that is within a certain distance from a school;
• modifies the requirements for a tobacco retail permit;
• clarifies provisions relating to who may be in a retail tobacco specialty business; and
• modifies penalties for selling a tobacco product, electronic cigarette product, or a nicotine product to an individual who is younger than 21 years old.

Every vote on this bill

Bill text

TOBACCO RETAILER AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Evan J. Vickers
House Sponsor: 
Paul Ray
LONG TITLE
General Description:
This bill amends provisions relating to tobacco retailers.
Highlighted Provisions:
This bill:
▸ amends provisions relating to a retail tobacco specialty business that is within a
certain distance from a school;
▸ modifies the requirements for a tobacco retail permit;
▸ clarifies provisions relating to who may be in a retail tobacco specialty business;
and
▸ modifies penalties for selling a tobacco product, electronic cigarette product, or a
nicotine product to an individual who is younger than 21 years old.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
10-8-41.6
, as last amended by Laws of Utah 2020, Sixth Special Session, Chapter 18
17-50-333
, as last amended by Laws of Utah 2020, Sixth Special Session, Chapter 18
26-62-205
, as last amended by Laws of Utah 2020, Chapters 302, 347
26-62-304
, as last amended by Laws of Utah 2020, Chapters 302, 347
26-62-305
, as last amended by Laws of Utah 2020, Chapters 302, 347 and last amended
by Coordination Clause, Laws of Utah 2020, Chapter 302
26-62-306
, as last amended by Laws of Utah 2020, Chapter 347
26-62-401
, as enacted by Laws of Utah 2020, Chapter 302
76-10-105.1
, as last amended by Laws of Utah 2020, Chapters 302 and 347
REPEALS:
26-62-402
, as enacted by Laws of Utah 2020, Chapter 302
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
10-8-41.6
 is amended to read:
10-8-41.6.
Regulation of retail tobacco specialty business.
(1) As used in this section:
(a) "Community location" means:
(i) a public or private kindergarten, elementary, middle, junior high, or high school;
(ii) a licensed child-care facility or preschool;
(iii) a trade or technical school;
(iv) a church;
(v) a public library;
(vi) a public playground;
(vii) a public park;
(viii) a youth center or other space used primarily for youth oriented activities;
(ix) a public recreational facility;
(x) a public arcade; or
(xi) for a new license issued on or after July 1, 2018, a homeless shelter.
(b) "Department" means the Department of Health, created in Section 
26-1-4
.
(c) "Electronic cigarette product" means the same as that term is defined in Section
76-10-101
.
(d) "Flavored electronic cigarette product" means the same as that term is defined in
Section 
76-10-101
.
(e) "Licensee" means a person licensed under this section to conduct business as a
retail tobacco specialty business.
(f) "Local health department" means the same as that term is defined in Section
26A-1-102
.
(g) "Nicotine product" means the same as that term is defined in Section 
76-10-101
.
(h) "Retail tobacco specialty business" means a commercial establishment in which:
(i) sales of tobacco products, electronic cigarette products, and nicotine products
account for more than 35% of the total quarterly gross receipts for the establishment;
(ii) 20% or more of the public retail floor space is allocated to the offer, display, or
storage of tobacco products, electronic cigarette products, or nicotine products;
(iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
tobacco products, electronic cigarette products, or nicotine products;
(iv) the commercial establishment:
(A) holds itself out as a retail tobacco specialty business; and
(B) causes a reasonable person to believe the commercial establishment is a retail
tobacco specialty business;
(v) any flavored electronic cigarette product is sold; or
(vi) the retail space features a self-service display for tobacco products, electronic
cigarette products, or nicotine products.
(i) "Self-service display" means the same as that term is defined in Section
76-10-105.1
.
(j) "Tobacco product" means:
(i) a tobacco product as defined in Section 
76-10-101
; or
(ii) tobacco paraphernalia as defined in Section 
76-10-101
.
(2) The regulation of a retail tobacco specialty business is an exercise of the police
powers of the state by the state or by delegation of the state's police powers to other
governmental entities.
(3) (a) A person may not operate a retail tobacco specialty business in a municipality
unless the person obtains a license from the municipality in which the retail tobacco specialty
business is located.
(b) A municipality may only issue a retail tobacco specialty business license to a
person if the person complies with the provisions of Subsections (4) and (5).
(4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
business is located within:
(i) 1,000 feet of a community location;
(ii) 600 feet of another retail tobacco specialty business; or
(iii) 600 feet from property used or zoned for:
(A) agriculture use; or
(B) residential use.
(b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
to intervening structures or zoning districts.
(5) A municipality may not issue or renew a license for a person to conduct business as
a retail tobacco specialty business until the person provides the municipality with proof that the
retail tobacco specialty business has:
(a) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local health
department having jurisdiction over the area in which the retail tobacco specialty business is
located; and
(b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
Commission in accordance with Section 
59-14-201
 or 
59-14-301
 to sell a tobacco product; and
(ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
license issued by the State Tax Commission in accordance with Section 
59-14-803
 to sell an
electronic cigarette product or a nicotine product.
(6) (a) Nothing in this section:
(i) requires a municipality to issue a retail tobacco specialty business license; or
(ii) prohibits a municipality from adopting more restrictive requirements on a person
seeking a license or renewal of a license to conduct business as a retail tobacco specialty
business.
(b) A municipality may suspend or revoke a retail tobacco specialty business license
issued under this section:
(i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
Part 16, Pattern of Unlawful Activity Act;
(ii) if a licensee violates federal law or federal regulations restricting the sale and
distribution of tobacco products or electronic cigarette products to protect children and
adolescents;
(iii) upon the recommendation of the department or a local health department under
Title 26, Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit; or
(iv) under any other provision of state law or local ordinance.
(7) (a) A retail tobacco specialty business is exempt from Subsection (4) if:
(i) on or before December 31, 2018, the retail tobacco specialty business was issued a
license to conduct business as a retail tobacco specialty business;
(ii) the retail tobacco specialty business is operating in a municipality in accordance
with all applicable laws except for the requirement in Subsection (4); and
(iii) beginning July 1, [
] 
, the retail tobacco specialty business is not located
within 1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high
school.
(b) A retail tobacco specialty business may maintain an exemption under Subsection
(7)(a) if:
(i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
or permanent revocation;
(ii) the retail tobacco specialty business does not close for business or otherwise
suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
more than 60 consecutive days;
(iii) the retail tobacco specialty business does not substantially change the business
premises or business operation; and
(iv) the retail tobacco specialty business maintains the right to operate under the terms
of other applicable laws, including:
(A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
(B) zoning ordinances;
(C) building codes; and
(D) the requirements of the license described in Subsection (7)(a)(i).
(c) A retail tobacco specialty business that does not qualify for an exemption under
Subsection (7)(a) is exempt from Subsection (4) if:
(i) on or before December 31, 2018, the retail tobacco specialty business was issued a
general tobacco retailer permit or a retail tobacco specialty business permit under Title 26,
Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local
health department having jurisdiction over the area in which the retail tobacco specialty
business is located;
(ii) the retail tobacco specialty business is operating in the municipality in accordance
with all applicable laws except for the requirement in Subsection (4); and
(iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
(d) [
A
] 
Except as provided in Subsection (7)(e), a
 retail tobacco specialty business may
maintain an exemption under Subsection (7)(c) if:
(i) on or before December 31, 2020, the retail tobacco specialty business receives a
retail tobacco specialty business permit from the local health department having jurisdiction
over the area in which the retail tobacco specialty business is located;
(ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
or permanent revocation;
(iii) the retail tobacco specialty business does not close for business or otherwise
suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
more than 60 consecutive days; [
and
]
(iv) the retail tobacco specialty business does not substantially change the business
premises or business operation as the business existed when the retail tobacco specialty
business received a permit under Subsection (7)(d)(i); and
[
(iv)
] 
(v)
 the retail tobacco specialty business maintains the right to operate under the
terms of other applicable laws, including:
(A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
(B) zoning ordinances;
(C) building codes; and
(D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
(e) A retail tobacco specialty business described in Subsection (7)(a) or (b) that is
located within 1,000 feet of a public or private kindergarten, elementary, middle, junior high,
or high school before July 1, 2022, is exempt from Subsection (4)(a)(iii)(B) if the retail tobacco
specialty business:
(i) relocates, before July 1, 2022, to a property that is used or zoned for commercial use
and located within a group of architecturally unified commercial establishments built on a site
that is planned, developed, owned, and managed as an operating unit; and
(ii) continues to meet the requirements described in Subsection (7)(b) that are not
directly related to the relocation described in this Subsection (7)(e).
Section 2. Section 
17-50-333
 is amended to read:
17-50-333.
Regulation of retail tobacco specialty business.
(1) As used in this section:
(a) "Community location" means:
(i) a public or private kindergarten, elementary, middle, junior high, or high school;
(ii) a licensed child-care facility or preschool;
(iii) a trade or technical school;
(iv) a church;
(v) a public library;
(vi) a public playground;
(vii) a public park;
(viii) a youth center or other space used primarily for youth oriented activities;
(ix) a public recreational facility;
(x) a public arcade; or
(xi) for a new license issued on or after July 1, 2018, a homeless shelter.
(b) "Department" means the Department of Health, created in Section 
26-1-4
.
(c) "Electronic cigarette product" means the same as that term is defined in Section
76-10-101
.
(d) "Flavored electronic cigarette product" means the same as that term is defined in
Section 
76-10-101
.
(e) "Licensee" means a person licensed under this section to conduct business as a
retail tobacco specialty business.
(f) "Local health department" means the same as that term is defined in Section
26A-1-102
.
(g) "Nicotine product" means the same as that term is defined in Section 
76-10-101
.
(h) "Retail tobacco specialty business" means a commercial establishment in which:
(i) sales of tobacco products, electronic cigarette products, and nicotine products
account for more than 35% of the total quarterly gross receipts for the establishment;
(ii) 20% or more of the public retail floor space is allocated to the offer, display, or
storage of tobacco products, electronic cigarette products, or nicotine products;
(iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
tobacco products, electronic cigarette products, or nicotine products;
(iv) the commercial establishment:
(A) holds itself out as a retail tobacco specialty business; and
(B) causes a reasonable person to believe the commercial establishment is a retail
tobacco specialty business;
(v) any flavored electronic cigarette product is sold; or
(vi) the retail space features a self-service display for tobacco products, electronic
cigarette products, or nicotine products.
(i) "Self-service display" means the same as that term is defined in Section
76-10-105.1
.
(j) "Tobacco product" means:
(i) the same as that term is defined in Section 
76-10-101
; or
(ii) tobacco paraphernalia as defined in Section 
76-10-101
.
(2) The regulation of a retail tobacco specialty business is an exercise of the police
powers of the state by the state or by the delegation of the state's police power to other
governmental entities.
(3) (a) A person may not operate a retail tobacco specialty business in a county unless
the person obtains a license from the county in which the retail tobacco specialty business is
located.
(b) A county may only issue a retail tobacco specialty business license to a person if
the person complies with the provisions of Subsections (4) and (5).
(4) (a) Except as provided in Subsection (7), a county may not issue a license for a
person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
business is located within:
(i) 1,000 feet of a community location;
(ii) 600 feet of another retail tobacco specialty business; or
(iii) 600 feet from property used or zoned for:
(A) agriculture use; or
(B) residential use.
(b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
to intervening structures or zoning districts.
(5) A county may not issue or renew a license for a person to conduct business as a
retail tobacco specialty business until the person provides the county with proof that the retail
tobacco specialty business has:
(a) a valid permit for a retail tobacco specialty business issued under Title 26, Chapter
62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local health
department having jurisdiction over the area in which the retail tobacco specialty business is
located; and
(b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
Commission in accordance with Section 
59-14-201
 or 
59-14-301
 to sell a tobacco product; or
(ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
license issued by the State Tax Commission in accordance with Section 
59-14-803
 to sell an
electronic cigarette product or a nicotine product.
(6) (a) Nothing in this section:
(i) requires a county to issue a retail tobacco specialty business license; or
(ii) prohibits a county from adopting more restrictive requirements on a person seeking
a license or renewal of a license to conduct business as a retail tobacco specialty business.
(b) A county may suspend or revoke a retail tobacco specialty business license issued
under this section:
(i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
Part 16, Pattern of Unlawful Activity Act;
(ii) if a licensee violates federal law or federal regulations restricting the sale and
distribution of tobacco products or electronic cigarette products to protect children and
adolescents;
(iii) upon the recommendation of the department or a local health department under
Title 26, Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit; or
(iv) under any other provision of state law or local ordinance.
(7) (a) [
A
] 
Except as provided in Subsection (7)(e), a
 retail tobacco specialty business
is exempt from Subsection (4) if:
(i) on or before December 31, 2018, the retail tobacco specialty business was issued a
license to conduct business as a retail tobacco specialty business;
(ii) the retail tobacco specialty business is operating in a county in accordance with all
applicable laws except for the requirement in Subsection (4); and
(iii) beginning July 1, [
] 
, the retail tobacco specialty business is not located
within 1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high
school.
(b) A retail tobacco specialty business may maintain an exemption under Subsection
(7)(a) if:
(i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
or permanent revocation;
(ii) the retail tobacco specialty business does not close for business or otherwise
suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
more than 60 consecutive days;
(iii) the retail tobacco specialty business does not substantially change the business
premises or business operation; and
(iv) the retail tobacco specialty business maintains the right to operate under the terms
of other applicable laws, including:
(A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
(B) zoning ordinances;
(C) building codes; and
(D) the requirements of the license described in Subsection (7)(a)(i).
(c) A retail tobacco specialty business that does not qualify for an exemption under
Subsection (7)(a) is exempt from Subsection (4) if:
(i) on or before December 31, 2018, the retail tobacco specialty business was issued a
general tobacco retailer permit or a retail tobacco specialty business permit under Title 26,
Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit, by the local
health department having jurisdiction over the area in which the retail tobacco specialty
business is located;
(ii) the retail tobacco specialty business is operating in the county in accordance with
all applicable laws except for the requirement in Subsection (4); and
(iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
(d) A retail tobacco specialty business may maintain an exemption under Subsection
(7)(c) if:
(i) on or before December 31, 2020, the retail tobacco specialty business receives a
retail tobacco specialty business permit from the local health department having jurisdiction
over the area in which the retail tobacco specialty business is located;
(ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
or permanent revocation;
(iii) the retail tobacco specialty business does not close for business or otherwise
suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
more than 60 consecutive days; [
and
]
(iv) the retail tobacco specialty business does not substantially change the business
premises or business operation as the business existed when the retail tobacco specialty
business received a permit under Subsection (7)(d)(i); and
[
(iv)
] 
(v)
 the retail tobacco specialty business maintains the right to operate under the
terms of other applicable laws, including:
(A) Title 26, Chapter 38, Utah Indoor Clean Air Act;
(B) zoning ordinances;
(C) building codes; and
(D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
(e) A retail tobacco specialty business described in Subsection (7)(a) or (b) that is
located within 1,000 feet of a public or private kindergarten, elementary, middle, junior high,
or high school before July 1, 2022, is exempt from Subsection (4)(a)(iii)(B) if the retail tobacco
specialty business:
(i) relocates, before July 1, 2022, to a property that is used or zoned for commercial use
and located within a group of architecturally unified commercial establishments built on a site
that is planned, developed, owned, and managed as an operating unit; and
(ii) continues to meet the requirements described in Subsection (7)(b) that are not
directly related to the relocation described in this Subsection (7)(e).
Section 3. Section 
26-62-205
 is amended to read:
26-62-205.
Permit requirements for a retail tobacco specialty business.
(1)
 A retail tobacco specialty business shall:
[
(1)
] 
(a)
 electronically verify proof of age for any individual that enters the premises of
the business in accordance with Part 4, Proof of Age Requirements;
[
(2)
] 
(b)
 except as provided in Subsection 
76-10-105.1
(4), prohibit any individual from
entering the business if the individual is under 21 years old; and
[
(3)
] 
(c)
 prominently display at the retail tobacco specialty business a sign on the
public entrance of the business that communicates:
[
(a)
] 
(i)
 the prohibition on the presence of an individual under 21 years old in a retail
tobacco specialty business in Subsection 
76-10-105.1
(4); and
[
(b)
] 
(ii)
 the prohibition on the sale of tobacco products and electronic cigarette
products to an individual under 21 years old as described in Sections 
76-10-104
, 
76-10-104.1
,
76-10-105.1
, and 
76-10-114
.
(2) A retail tobacco specialty business may not:
(a) employ an individual under 21 years old to sell a tobacco product, an electronic
cigarette product, or a nicotine product; or
(b) permit an employee under 21 years old to sell a tobacco product, an electronic
cigarette product, or a nicotine product.
Section 4. Section 
26-62-304
 is amended to read:
26-62-304.
Hearing -- Evidence of criminal conviction.
(1) At a civil hearing conducted under Section 
26-62-302
, evidence of the final
criminal conviction of a tobacco retailer [
or employee
] for violation of Section 
76-10-114
 at
the same location and within the same time period as the location and time period alleged in
the civil hearing for violation of this chapter for sale of a tobacco product, an electronic
cigarette product, or a nicotine product to an individual under 21 years old is prima facie
evidence of a violation of this chapter.
(2) If the tobacco retailer is convicted of violating Section 
76-10-114
, the enforcing
agency:
(a) [
may not
] 
shall
 assess an additional monetary penalty under this chapter for the
same offense for which the conviction was obtained; and
(b) [
may
] 
shall
 revoke or suspend a permit in accordance with Section 
26-62-305
 or
26-62-402
.
Section 5. Section 
26-62-305
 is amended to read:
26-62-305.
Penalties.
(1) (a) If an enforcing agency determines that a person has violated the terms of a
permit issued under this chapter, the enforcing agency may impose the penalties described in
this section.
(b) If multiple violations are found in a single inspection by an enforcing agency or 
a
single
 investigation by a law enforcement agency under Section 
77-39-101
, the enforcing
agency shall treat the multiple violations as one single violation under Subsections (2), (3), and
(4).
(2) Except as provided in [
Subsection
] 
Subsections
 (3) [
and Section 
26-62-402
] 
and
(4)
, if a violation is found in [
an inspection by an enforcing agency or
] an investigation by a
law enforcement agency under Section 
77-39-101
or an inspection by an enforcing agency
, the
enforcing agency shall:
(a) on a first violation at a retail location, impose a penalty of [
no more than $500
]
$1,000
;
(b) on a second violation at the same retail location that occurs within one year of a
previous violation, impose a penalty of [
no more than $750
] 
$1,500
;
(c) on a third violation at the same retail location that occurs within two years after two
previous violations, impose:
(i) a suspension of the permit for 30 consecutive business days within 60 days after the
day on which the third violation occurs; or
(ii) a penalty of [
no more than $1,000
] 
$2,000
; and
(d) on a fourth or subsequent violation within two years of three previous violations:
(i) impose a penalty of [
no more than $1,000
] 
$2,000
;
(ii) revoke a permit of the retailer; and
(iii) if applicable, recommend to a municipality or county that a retail tobacco specialty
business license issued under Section 
10-8-41.6
 or 
17-50-333
 be suspended or revoked.
(3) If a violation is found in an investigation of a general tobacco retailer by a law
enforcement agency under Section 
77-39-101
 for the sale of a tobacco product, an electronic
cigarette product, or a nicotine product to an individual under 21 years old and the violation is
committed by the owner of the general tobacco retailer, the enforcing agency shall:
(a) on a first violation, impose a fine of [
no more than
] $2,000 on the general tobacco
retailer; and
(b) on the second violation for the same general tobacco retailer within one year of the
first violation:
(i) impose a fine [
not exceeding
] 
of
 $5,000; and
(ii) revoke the permit for the general tobacco retailer.
(4) If a violation is found in an investigation of a retail tobacco specialty business by a
law enforcement agency under Section 
77-39-101
 for the sale of a tobacco product, an
electronic cigarette product, or a nicotine product to an individual under 21 years old, the
enforcing agency shall[
 apply the provisions of Section 
26-62-402
.
]
:
(a) on the first violation:
(i) impose a fine of $5,000; and
(ii) immediately suspend the permit for 30 consecutive days; and
(b) on the second violation at the same retail location within two years of the first
violation:
(i) impose a fine of $10,000; and
(ii) revoke the permit for the retail tobacco specialty business.
(5) (a) Except when a transfer described in Subsection (6) occurs, a local health
department may not issue a permit to:
(i) a tobacco retailer for whom a permit is suspended or revoked under Subsection (2)
or (3) or Section 
26-62-402
; or
(ii) a tobacco retailer that has the same proprietor, director, corporate officer, partner,
or other holder of significant interest as another tobacco retailer for whom a permit is
suspended or revoked under Subsection (2) [
or
]
,
 (3)
,
 or [
Section 
26-62-402
] 
(4)
.
(b) A person whose permit:
(i) is suspended under this section may not apply for a new permit for any other
tobacco retailer for a period of 12 months after the day on which an enforcing agency suspends
the permit; and
(ii) is revoked under this section [
or Section 
26-62-402
] may not apply for a new
permit for any tobacco retailer for a period of 24 months after the day on which an enforcing
agency revokes the permit.
(6) Violations of this chapter, Section 
10-8-41.6
, 
or
 Section 
17-50-333
[
, or Section
26-62-402
] that occur at a tobacco retailer location shall stay on the record for that tobacco
retailer location unless:
(a) the tobacco retailer is transferred to a new proprietor; and
(b) the new proprietor provides documentation to the local health department that the
new proprietor is acquiring the tobacco retailer in an arm's length transaction from the previous
proprietor.
Section 6. Section 
26-62-306
 is amended to read:
26-62-306.
Recognition of tobacco retailer training program.
(1) In determining the amount of the monetary penalty to be imposed for [
an
employee's
] 
a
 violation of this chapter, a hearing officer shall reduce the civil penalty by at
least 50% if the hearing officer determines that:
(a) the tobacco retailer has implemented a documented employee training program; and
(b) the employees have completed that training program within 30 days after the day on
which each employee commences the duties of selling a tobacco product, an electronic
cigarette product, or a nicotine product.
(2) (a) For the first offense at a location, if the hearing officer determines under
Subsection (1) that the tobacco retailer [
licensee
] has not implemented a documented training
program with a written curriculum for employees at that location regarding compliance with
this chapter, the hearing officer may suspend all or a portion of the penalty if:
(i) the tobacco retailer agrees to initiate a training program for employees at that
location; and
(ii) the training program begins within 30 days after the hearing officer makes a
determination under this Subsection (2)(a).
(b) If the hearing officer determines at a subsequent hearing that the tobacco retailer
has not implemented the training program within the time period required under Subsection
(2)(a)(ii), the hearing officer shall promptly impose the suspended monetary penalty, unless the
tobacco retailer demonstrates good cause for an extension of time for implementation of the
training program.
Section 7. Section 
26-62-401
 is amended to read:
26-62-401.
Verification of proof of age.
(1) As used in this section:
(a) "Employee" means an employee of a retail tobacco specialty business.
(b) "Electronic verification program" means a technology used by a retail tobacco
specialty business to confirm proof of age for an individual.
(2) A retail tobacco specialty business shall require that an employee verify proof of
age as provided in this section.
(3) To comply with Subsection (2), an employee shall:
(a) request the individual present proof of age; and
(b) verify the validity of the proof of age electronically in accordance with Subsection
(4).
(4) A retail tobacco specialty business shall use an electronic verification program to
assist the business in complying with the requirements of this section.
(5) (a) A retail tobacco specialty business may not disclose information obtained under
this section except as provided under this part.
(b) Information obtained under this section:
(i) shall be kept for at least 180 days; and
(ii) is subject to inspection upon request by a peace officer or the representative of an
enforcing agency.
(6) (a) If an employee does not verify proof of age under this section, the employee
may not permit an individual to:
(i) except as provided in Subsection (6)(b), enter a retail tobacco specialty business; or
(ii) purchase a tobacco product or an electronic cigarette product.
(b) In accordance with Subsection 
76-10-105.1
(4), an individual who is under 21 years
old may be permitted to enter a retail tobacco specialty business if 
the individual is
:
(i) [
the individual is
] accompanied by a parent or legal guardian who provides proof of
age; or
(ii) 
(A)
 [
the individual is
] present at the retail tobacco specialty [
shop for a bona fide
commercial purpose other than to purchase a tobacco product or an electronic cigarette
product.
] 
business solely for the purpose of providing a commercial service to the retail
tobacco specialty business, including making a commercial delivery;
(B) monitored by the proprietor of the retail tobacco specialty business or an employee
of the retail tobacco specialty business; and
(C) not permitted to make any purchase or conduct any commercial transaction other
than the service described in Subsection (6)(b)(ii)(A).
(7) To determine whether the individual described in Subsection (2) is 21 years old or
older, the following may request an individual described in Subsection (2) to present proof of
age:
(a) an employee;
(b) a peace officer; or
(c) a representative of an enforcing agency.
Section 8. Section 
76-10-105.1
 is amended to read:
76-10-105.1.
Requirement of direct, face-to-face sale of a tobacco product, an
electronic cigarette product, or a nicotine product -- Minors not allowed in tobacco
specialty shop -- Penalties.
(1) As used in this section:
(a) (i) "Face-to-face exchange" means a transaction made in person between an
individual and a retailer or retailer's employee.
(ii) "Face-to-face exchange" does not include a sale through a:
(A) vending machine; or
(B) self-service display.
(b) "Retailer" means a person who:
(i) sells a tobacco product, an electronic cigarette product, or a nicotine product to an
individual for personal consumption; or
(ii) operates a facility with a vending machine that sells a tobacco product, an
electronic cigarette product, or a nicotine product.
(c) "Self-service display" means a display of a tobacco product, an electronic cigarette
product, or a nicotine product to which the public has access without the intervention of a
retailer or retailer's employee.
(2) Except as provided in Subsection (3), a retailer may sell a tobacco product, an
electronic cigarette product, or a nicotine product only in a face-to-face exchange.
(3) The face-to-face sale requirement in Subsection (2) does not apply to:
(a) a mail-order, telephone, or Internet sale made in compliance with Section
59-14-509
;
(b) a sale from a vending machine or self-service display that is located in an area of a
retailer's facility:
(i) that is distinct and separate from the rest of the facility; and
(ii) where the retailer only allows an individual who complies with Subsection (4) to be
present; or
(c) a sale at a retail tobacco specialty business.
(4) An individual who is under 21 years old may not enter or be present at a retail
tobacco specialty business unless the individual is:
(a) accompanied by a parent or legal guardian; or
(b) 
(i)
 present at the retail tobacco specialty business [
for a bona fide commercial
purpose other than to purchase a tobacco product, an electronic cigarette product, or a nicotine
product.
] 
solely for the purpose of providing a service to the retail tobacco specialty business,
including making a delivery;
(ii) monitored by the proprietor of the retail tobacco specialty business or an employee
of the retail tobacco specialty business; and
(iii) not permitted to make any purchase or conduct any commercial transaction other
than the service described in Subsection (4)(b)(i).
(5) A parent or legal guardian who accompanies, under Subsection (4)(a), an individual
into an area described in Subsection (3)(b) or into a retail tobacco specialty business may not
allow the individual to purchase a tobacco product, an electronic cigarette product, or a
nicotine product.
(6) A violation of Subsection (2) or (4) is a:
(a) class C misdemeanor on the first offense;
(b) class B misdemeanor on the second offense; and
(c) class A misdemeanor on any subsequent offenses.
(7) An individual who violates Subsection (5) is guilty of an offense under Section
76-10-104
.
Section 9. 
Repealer.
This bill repeals:
Section 
26-62-402
,
Penalties.