HB1296 94TH GENERAL ASSEMBLY

LRB094 07517 LJB 37684 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB1296

Introduced 02/09/05, by Rep. Paul D. Froehlich - Karen A. Yarbrough - Deborah L. Graham - Elizabeth Coulson - John A. Fritchey, et al.

SYNOPSIS AS INTRODUCED:

New Act

Creates the Tobacco Control Act. Provides definitions. Prohibits any person from selling tobacco without obtaining a license. Requires retailers without a license to keep all tobacco products and paraphernalia from public view and prohibits the display of any tobacco-related advertisement that would lead a person to believe tobacco could be obtained from the retailer. Prohibits certain sales or dispersals of tobacco products. Requires an application for a tobacco retailer's license to be submitted in the name of the proprietor to the Illinois Liquor Control Commission and provides that a license issued in error or on the basis of false or misleading information shall be revoked. Sets forth the information to be provided in applications for new or renewal licenses. Requires the Commission to issue a license upon receipt of an application except for certain circumstances. Provides that a license is nontransferable and that violations accumulated against a location or business will continue to be counted against that location or business unless the location or business has been transferred in an arm's length transaction. Requires a retailer to pay a fee set by the Commission for a new or renewal license. Requires retailers to display the license and to display a sign at each point of sale, including on each vending machine. Provides for violations and compliance checks. Provides for penalties. Provides for severability. Effective July 1, 2006.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning tobacco.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Tobacco Control Act.

Section 5. Definitions. The following words and phrases, whenever used in this Act, have the meanings defined in this Section unless the context clearly requires otherwise:

"Commission" means the Illinois Liquor Control Commission.

"Person" means any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

"Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a Person has a 10% or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or can or does share ultimate control over the day-to-day operations of a business.

"Retailer" means any person who sells tobacco products to individuals for personal consumption or who operates a facility containing vending machines that dispense tobacco products or self-service displays of tobacco products.

"Smoking" means possessing a lighted tobacco product, tobacco paraphernalia, or any other weed or plant, including, but not limited to, a lighted pipe, lighted cigar, or lighted cigarette of any kind, or the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant, including, but not limited to, a pipe, cigar, or cigarette of any kind.

"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

"Tobacco product" means (i) any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco and (ii) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any product specifically approved by the federal Food and Drug Administration for use in treating nicotine or tobacco product dependence.

"Vending machine" means a machine, appliance, or other mechanical device operated by currency, token, debit card, or credit card that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

Section 10. Tobacco retailer license required.

(a) It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this Act for each location at which that retail activity is to occur.

(b) A retailer without a valid tobacco retailer's license, including, but not limited to, a revoked license, shall:

(1) keep all tobacco products and tobacco paraphernalia from public view; and

(2) not display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of the products from the retailer's location or that would lead a reasonable consumer to believe that the products can be obtained at the retailer's location.

(c) Nothing in this Act shall be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the right to act as a retailer at the location identified on the face of the license.

(d) Any retailer that sells tobacco products without a tobacco retailer's license shall be subject to the fines and penalties in Section 50 of this Act.

Section 15. Prohibitions concerning sales of tobacco products.

(a) No license may be issued to authorize retailing at other than a fixed location.

(b) No retailer may sell or distribute tobacco products to any person under 18 years of age. Violations of this subsection (b) are subject to the penalties contained in the Sale of Tobacco to Minors Act.

(c) Each retailer shall request and examine the photographic identification of any person purchasing tobacco products so as to verify that the purchaser is 18 years of age or older. No verification is required for any person who appears without reasonable doubt to be over the age of 27 years.

(d) No retailer may break or otherwise open any cigarette or smokeless tobacco package to sell or distribute individual cigarettes or a number of unpackaged cigarettes that is smaller than the minimum cigarette package size of 20 cigarettes or any quantity of cigarette tobacco or smokeless tobacco that is smaller than the smallest package distributed by the manufacturer for individual consumer use.

(e) No person shall give away, barter, exchange, distribute or in any way dispense free of charge or at nominal cost any tobacco product samples or any coupon redeemable for any tobacco products on any public street, alley, or sidewalk, in any public park, ground, or playground, in areas open to the public, in any publicly owned or operated building, or at any place located within 100 feet of any building or other location used primarily as a school, child care facility, or for the education or recreation of children under 18 years of age.

(f) No retailer may sell or distribute tobacco products at any place located within 100 feet of any building or other location used primarily as a school, child care facility, or for the education or recreation of children under 18 years of age. This prohibition shall not apply to those businesses engaged in the retail sale of tobacco products at a location that would otherwise be prohibited by this Act that were in existence prior to the effective date of this Act. This exemption shall apply to any new owner at the same location providing the same services.

(g) Any retailer that sells or distributes tobacco products through a vending machine pursuant to the Sale of Tobacco to Minors Act shall obtain a tobacco retailer's license from the Commission.

Section 20. Application procedure.

(a) Application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. A license that is issued in error or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to subsection (a) of Section 50 of this Act.

(b) All applications for new and renewal licenses shall be submitted on a form supplied by the Commission and shall contain all of the following information:

(1) The name, address, and telephone number of each proprietor.

(2) The business name, address, and telephone number of the single fixed location for which a tobacco retailer's license is sought.

(3) The name and mailing address authorized by each proprietor to receive all license-related communications and notices. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in paragraph (2).

(4) Any other information the Commission deems necessary for the administration or enforcement of this Act.

Section 25. Issuance of license. Upon the receipt of an application for a tobacco retailer's license and the license fee, the Commission shall issue a license unless substantial record evidence demonstrates that (i) the application is incomplete or inaccurate or (ii) the application seeks authorization for retailing that is prohibited pursuant to any other local, State, or federal law.

Section 30. Nontransferability of licenses.

(a) A tobacco retailer's license is nontransferable. If the information required in the license application pursuant to Section 20 of this Act changes, a new tobacco retailer's license is required before the business may continue to act as a tobacco retailer. This includes, but is not limited to, the retailer changing locations or the new ownership of the business.

(b) Notwithstanding any other provision of this Act, violations accumulated against a location or business shall continue to be counted against the location or business unless the location or business has been transferred to a new proprietor and the new proprietor provides the Commission with documentation demonstrating by clear and convincing evidence that the new proprietor has acquired or is acquiring the location or business in an arm's length transaction.

Section 35. Fee for licenses.

(a) A tobacco retailer's license is invalid unless the appropriate fee has been paid in full and the term of the license has not expired. The term of a tobacco retailer's license is one year. Each retailer shall apply to the Commission for the renewal of his or her tobacco retailer's license no later than 30 days prior to expiration of the term.

(b) The fee to issue or to renew a tobacco retailer's license shall be established by the Commission. The fee shall be calculated so as to recover the total cost of both license administration and license enforcement. All fees shall be used exclusively to fund the administration and enforcement of licenses. Fees are nonrefundable except as may be required by law.

(c) A tobacco retailer's license that is not timely renewed pursuant to subsection (a) of this Section shall expire at the end of its term. To reinstate a license that has expired due to the failure to timely pay the renewal fee, the proprietor must (i) submit the renewal fee plus a reinstatement fee of 10% of the renewal fee and (ii) submit a signed affidavit affirming that the proprietor has not sold any tobacco products or tobacco paraphernalia during any period that the license was expired.

Section 40. Other requirements and prohibitions.

(a) Each license shall be prominently displayed in a publicly and readily visible location at the licensed location.

(b) Every retailer of tobacco products shall place and maintain, in legible condition, at each point of sale of tobacco products to consumers, including the front of each vending machine, a sign stating the following:

WARNING - IT IS A VIOLATION OF THE LAW FOR CIGARETTES OR OTHER TOBACCO PRODUCTS TO BE SOLD TO ANY PERSON UNDER THE AGE OF 18.

The sign shall not be less than 8 inches by 11 inches in size, except for a sign placed on the front of a vending machine. The sign for a vending machine shall not be less than 4 inches by 4 inches in size. The text of the printed sign shall be in red letters on a white background, and the letters must be at least one inch high.

Section 45. License violations; compliance checks.

(a) It shall be a violation of a tobacco retailer's license for a licensee, including his or her agent or employee, to violate any of the following laws:

(1) any local, State, or federal tobacco-related law;

(2) any local, State, or federal sign laws; or

(3) any local, State, or federal laws restricting the age of purchase for any product.

(b) Compliance with this Act may be monitored by any local, State, or federal law enforcement agency. Any unit of local government may enforce the penal provisions of this Act. The law enforcement agency or unit or local government shall compile a record of violations under this Act and forward it to the Commission for administrative review.

Compliance checks shall determine, at a minimum, if the retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance checks shall determine compliance with other tobacco-related laws.

Section 50. Enforcement.

(a) In addition to any other penalty authorized by law, a tobacco retailer's license shall be revoked if the Commission finds, after notice to the licensee and opportunity to be heard, that the licensee, including his or her agents or employees, has violated any of the requirements, conditions, or prohibitions of this Act.

A decision of the Commission to revoke a license is appealable to the appropriate municipal court and must be filed with the applicable clerk's office and the Commission within 10 days after mailing of the Commission's decision to the licensee. An appeal shall stay all proceedings in furtherance of the appealed action. A revocation pursuant to subsection (b) of this Section is not subject to appeal.

(b) A tobacco retailer's license shall be revoked if the Commission finds, after notice and opportunity to be heard by the tobacco retailer, that one or more of the bases for denial of a license under Section 20 existed at the time application was made or at anytime before the license was issued. The revocation shall be without prejudice to the filing of a new application for a license.

(c) The Commission shall impose a fine upon any person who violates the provisions of this Act, except that subsection (b) of Section 15 is subject to the penalties contained in the Sale of Tobacco to Minors Act. Penalties imposed shall include the following:

(1) for a first violation, a fine of $500;

(2) for a second violation, occurring after a final determination of liability for a first violation and within a 12 month period after a final determination of liability for a first violation, a fine of $1,000 and a suspension of the tobacco retailer's license for 30 days; and

(3) for a third violation, occurring after a final determination of liability for a second violation and within a 12 month period after the determination of liability for a second violation, a fine of $1,500 and a revocation of the tobacco retailer's license for one year.

Each instance in which Section 15 of this Act is violated shall constitute a separate and distinct offense.

The Commission shall impose a $1,000 fine upon any person who sells tobacco products without a license as required by Section 10 of this Act or after a license issued pursuant to this Act has been suspended. Each instance in which a person sells tobacco products in violation of Section 10 of this Act shall constitute a separate and distinct violation.

(d) The Commission may suspend any license issued under the provisions of this Act if it is determined that the licensee has violated any of the provisions of this Act not requiring the revocation of a license under subsection (a).

The Commission shall adopt rules governing license suspension hearings under this Act.

(e) In addition to imposing the fines and other penalties provided by this Act, the Commission may, in the name of the People of the State of Illinois, through the Attorney General of the State of Illinois or the State's Attorney of any county in which the action is brought, petition for an order enjoining a violation or for an order enforcing compliance with this Act. Upon the filing of a verified petition in court, the court may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin the violation, and if it is established that the person has violated or is violating the injunction, the court may punish the offender for contempt of court. Proceedings under this Section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this Act.

(f) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Act shall constitute a violation of this Act subject to the fines and penalties contained in this Act.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99. Effective date. This Act takes effect July 1, 2006.