Bill Text: HI SB1016 | 2020 | Regular Session | Amended
Bill Title: Relating To Sales Of Tobacco.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Engrossed - Dead) 2019-12-01 - Carried over to 2020 Regular Session. [SB1016 Detail]
Download: Hawaii-2020-SB1016-Amended.html
THE SENATE |
S.B. NO. |
1016 |
THIRTIETH LEGISLATURE, 2019 |
S.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO SALES OF TOBACCO.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the density of tobacco retailers around schools has a significant impact on the prevalence of youth tobacco use. A study published in the American Journal of Public Health showed that experimental smoking among high school-aged minors increases when tobacco retailers are closer to schools and densely populate those locations. Similarly, the incidence of smoking was significantly higher among students in schools with the highest density of surrounding tobacco retailers compared with students in schools without any tobacco retailers nearby. Another study found that tobacco retailers were more concentrated in school areas and more likely to be frequented by youth.
The legislature further finds that electronic smoking devices are especially popular among youth, surpassing cigarettes as the most commonly used tobacco product. The 2015 Hawaii Youth Risk Behaviors Survey found that twenty-five per cent of high school students and fifteen per cent of middle school students reported using electronic vapor products in the thirty days preceding the survey. The popularity of these devices is concerning, as electronic smoking devices are not safe alternatives to other tobacco products, and exposure to nicotine increases the risk of addiction and may disrupt critical brain development.
The legislature recognizes that tobacco advertising and retailers suggest that smoking is acceptable, and youth and children are particularly susceptible to these cues. Tobacco and electronic smoking device manufacturers employ tactics that appeal to youth, such as child-friendly flavors, celebrity endorsements, and high-tech design. The tobacco industry spends $24,300,000 on marketing per year in Hawaii. In addition, the electronic smoking device industry spent an estimated $115,000,000 on marketing in 2014, a nearly 1,700 per cent increase from 2011. Youth who walk or take public transportation to school may be exposed to advertising of tobacco products and electronic smoking devices at locations such as convenience stores, grocery stores, and gas stations.
The legislature notes its constitutional obligation to protect the public health and safety of state residents. In particular, article IX, section 1, of the Hawaii State Constitution directs that "[t]he State shall provide for the protection and promotion of the public health." The legislature finds that tobacco retail buffer zones encourage responsible tobacco retailing, reduce tobacco-related health disparities, and most importantly, reduce youth tobacco use, especially the use of electronic smoking devices. Many cities in California and New York have already implemented tobacco retail buffer zones, ranging from three hundred to fifteen hundred feet, around schools, parks, libraries, and other youth-oriented areas, within which sales of tobacco products and permits for tobacco retailers are prohibited.
The purpose of this Act is to:
(1) Reduce the use of, access to, and exposure to tobacco products by youth by prohibiting the issuance and renewal of retail tobacco permits for, and the sale of a tobacco product or an electronic smoking device at, a place of business within seven hundred fifty feet of preschools, schools, and public playgrounds; and
(2) Codify the department of taxation's administrative rule specifying when the department may suspend, revoke, or decline to renew a retail tobacco permit.
SECTION 2. Chapter 245, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§245- Good cause to suspend, revoke, or decline
to renew a retail tobacco permit.
(a) In addition to any other
acts or conditions provided by law, the department may suspend or, after
hearing, revoke or decline to renew any retail tobacco permit issued under this
chapter whenever the department finds that the applicant or permittee has
failed to comply with this chapter or any rule adopted under this chapter, or
for any other good cause. Good cause
includes but is not limited to instances where an applicant or permittee has:
(1) Submitted a
false or fraudulent application or provided a false statement in an
application;
(2) Possessed or
displayed a false or fraudulent retail tobacco permit;
(3) Failed to meet
or maintain the conditions and requirements necessary to qualify for the
granting of a retail tobacco permit;
(4) Procured a
retail tobacco permit through fraud, misrepresentation, or deceit;
(5) Aided and
abetted a person or entity that does not possess a retail tobacco permit to
directly or indirectly perform activities requiring a retail tobacco permit;
(6) Instances of
noncompliance, violation, or conviction of any law directly pertaining to the
sale, importation, acquisition, possession, stamping, distribution,
transportation, or smuggling of cigarettes, counterfeit cigarettes, counterfeit
tax stamps, or other tobacco products in violation of county, state, or federal
law;
(7) Intentionally
failed to make accessible for inspection any records of the permittee for the
purpose of determining compliance with this chapter to any representative of
the department or the attorney general; or
(8) Failed to
comply with applicable tax obligations.
Upon suspending or revoking any retail tobacco
permit, the department shall request that the permittee immediately surrender
any retail tobacco permit or duplicate issued to the permittee, and the
permittee shall surrender the permit or duplicate promptly to the department as
requested.
(b) In assessing whether good cause exists when considering
a revocation, suspension, or declination to renew a retail tobacco permit based
upon a person's or entity's employee's violations of section 712-1258, the department
may consider whether the sale of the tobacco product to the minor was an
isolated incident, and if not, the extent to which the person or entity acted
in reckless disregard of the risk that tobacco products would be sold to minors.
(c) In determining
good cause the department may consider:
(1) The nature,
circumstances, extent, and gravity of the violation;
(2) With respect to
the permittee, the degree of culpability and any history of prior compliance or
prior violations; and
(3) Such other
matters as justice may require or as the department deems relevant.
(d) Revocation, suspension, or declination to renew a retail tobacco permit shall have no effect on liability for payment of taxes, fees, penalties, or interest incurred or imposed."
SECTION 3. Chapter 328J, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§328J- Tobacco products and electronic smoking
devices; prohibited locations. (a) It shall be unlawful to sell a tobacco
product or an electronic smoking device at a place of business located within seven hundred fifty
feet of a public or private preschool; a public or private elementary,
intermediate, or high school; or
public playground. The distance of seven
hundred fifty feet shall be measured from the boundary of the preschool, school, or playground to the boundary
of the place of business' premises.
(b) Any person
who violates this section shall be fined $500 for the offense and no less than
$500 and no more than $2,000 for each subsequent offense. Each day a violation continues shall
constitute a separate offense.
(c) For purposes of this section:
"Public playground"
means an area of land that is used for outdoor play or recreation, especially
by children, maintained by county or state government, that contains one or
more of the following:
(1) Pieces of
recreational equipment such as a slide or a swing;
(2) Facilities
for playing informal games such as a baseball diamond or tennis court; or
(3) Fields for
playing of sports such as soccer or football.
Public or
private beaches shall not be deemed public playgrounds.
"To sell" shall have the same meaning as in section 712‑1257."
SECTION 4. Section
245-2.5, Hawaii Revised Statutes, is amended to read as follows:
"[[]§245-2.5[]] Retail tobacco permit. (a)
Beginning December 1, 2006, every retailer engaged in the retail sale of
cigarettes and other tobacco products upon which a tax is required to be paid
under this chapter shall obtain a retail tobacco permit. No place of business within seven hundred
fifty feet of a public or private preschool; public or private elementary,
intermediate, or high school; or public playground shall seek a permit under
this section."
(b) Beginning March 1, 2007, it shall be unlawful for any retailer engaged in the retail sale of cigarettes and other tobacco products upon which a tax is required to be paid under this chapter to sell, possess, keep, acquire, distribute, or transport cigarettes or other tobacco products for retail sale unless a retail tobacco permit has been issued to the retailer under this section and the retail tobacco permit is in full force and effect.
(c) The retail tobacco permit shall be issued by
the department upon application by the retailer in the form and manner
prescribed by the department, and the payment of a fee of $20[.];
provided that the place of business for which the permit is sought shall not be
within seven hundred fifty feet of a public or private preschool; a public or
private elementary, intermediate, or high school; or a public playground. Permits shall be valid for one year, from
December 1 to November 30, and renewable annually[.]; provided that a
permit issued for a place of business that is located within seven hundred fifty
feet of a public or private preschool; a public or private elementary,
intermediate, or high school; or
a public playground shall be void. The
distance of seven hundred fifty feet shall be measured from the boundary of the
preschool, school, or public
playground to the boundary of the place of business' premises. Public or private beaches, public or private
day care centers located in or adjacent to commercial areas, and vocational or
licensing schools, or other schools attended primarily by adults, shall not be
deemed schools or public playgrounds for purposes of this subsection. Whenever a retail tobacco permit is defaced,
destroyed, or lost, or the permittee relocates the permittee's business, the
department may issue a duplicate retail tobacco permit to the permittee for a
fee of $5 per copy. (d) A separate retail tobacco permit shall be
obtained for each place of business owned, controlled, or operated by a
retailer. A retailer that owns or
controls more than one place of business may submit a single application for
more than one retail tobacco permit. Each
retail tobacco permit issued shall clearly describe the place of business where
the operation of the business is conducted.
(e) Any entity that operates as a dealer or wholesaler and also sells cigarettes or other tobacco products to consumers at retail shall acquire a separate retail tobacco permit.
(f) A retail tobacco permit shall be nonassignable
and nontransferable from one entity to another entity. A retail tobacco permit may be transferred
from one business location to another business location after an application
has been filed with the department requesting that transfer and approval has
been obtained from the department.
(g) A
retail tobacco permit issued under this section shall be displayed at all times
in a conspicuous place at the place of business requiring the retail tobacco
permit.
(h) Any sales of cigarettes or tobacco products made through a cigarette or tobacco product vending machine are subject to the terms, conditions, and penalties of this chapter. A retail tobacco permit need not be displayed on cigarette or tobacco product vending machines if the retail tobacco permit holder is the owner of the cigarette or tobacco product vending machines and the cigarette or tobacco product vending machines are operated at the location described in the retail tobacco permit.
(i) No retailer shall purchase any pack of cigarettes
without the appropriate tax stamp being affixed to the bottom of the pack as
required by this chapter.
(j) A vehicle from which cigarettes or tobacco products are sold is considered a place of business and requires a retail tobacco permit. Retail tobacco permits for a vehicle shall be issued bearing a specific motor vehicle identification number and are valid only when physically carried in the vehicle having the corresponding motor vehicle identification number. Retail tobacco permits for vehicles shall not be moved from one vehicle to another.
(k) A permittee shall be subject to the inspection and investigation requirements of this chapter and shall provide the department or the attorney general with any information deemed necessary to verify compliance with the requirements of this chapter.
(l) A permittee shall keep a complete and
accurate record of the permittee's cigarette or tobacco product inventory. The records shall:
(1) Include:
(A) A written statement containing the name and
address of the permittee's source of its cigarettes and tobacco products;
(B) The date of delivery, quantity, trade name or
brand, and price of the cigarettes and tobacco products; and
(C) Documentation in the form of any purchase
orders, invoices, bills of lading, other written statements, books, papers, or
records in whatever format, including electronic format, which substantiate the
purchase or acquisition of the cigarettes and tobacco products stored or
offered for sale; and
(2) Be offered for inspection and examination
within twenty-four hours of demand by the department or the attorney general,
and shall be preserved for a period of three years; provided that:
(A) Specified records may be destroyed if the department and the attorney general both consent to their destruction within the three-year period; and
(B) Either the department or the attorney general may adopt rules pursuant to chapter 91 that require specified records to be kept longer than a period of three years.
[(m) The department may suspend or, after hearing,
revoke or decline to renew any retail tobacco permit issued under this chapter
whenever the department finds that the applicant or permittee has failed to
comply with this chapter or any rule adopted under this chapter, or for any
other good cause. Good cause includes
but is not limited to instances where an applicant or permittee has:
(1) Submitted a
false or fraudulent application or provided a false statement in an
application; or
(2) Possessed or
displayed a false or fraudulent retail tobacco permit.
Upon suspending or revoking any retail tobacco
permit, the department shall request that the permittee immediately surrender
any retail tobacco permit or duplicate issued to the permittee, and the
permittee shall surrender the permit or duplicate promptly to the department as
requested.
(n)] (m) Whenever the department suspends, revokes, or
declines to renew a retail tobacco permit[,] pursuant to section
245- , the department shall notify the applicant or permittee
immediately and afford the applicant or permittee a hearing, if requested and
if a hearing has not already been afforded.
After the hearing, the department shall:
(1) Rescind its order of suspension;
(2) Continue the suspension;
(3) Revoke the retail tobacco permit;
(4) Rescind its order of revocation;
(5) Decline to renew the retail tobacco permit; or
(6) Renew the retail tobacco permit.
[(o)] (n) Any cigarette, package of cigarettes, carton
of cigarettes, container of cigarettes, tobacco product, package of tobacco
products, or any container of tobacco products unlawfully sold, possessed,
kept, stored, acquired, distributed, or transported in violation of this
section may be seized and ordered forfeited pursuant to chapter 712A."
SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect upon its approval; provided that section 3 shall take effect on January 1, 2020.
Report Title:
Tobacco; Electronic Smoking Devices; Tobacco Retailer Buffer Zones; Keiki Caucus
Description:
Prohibits a business from seeking a new retail tobacco permit or renewal of an existing permit if the place of business is located within 750 feet of a preschool, school, or public playground. Beginning January 1, 2020, prohibits the sale of tobacco products and electronic smoking devices by businesses that are located within 750 feet of a preschool, school, or public playground. Codifies the Department of Taxation's administrative rule specifying when the Department may suspend, revoke, or decline to renew a retail tobacco permit. (SD1)
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