Bill Text: AZ HB2357 | 2019 | Fifty-fourth Legislature 1st Regular | Engrossed


Bill Title: Restrictions; electronic smoking devices

Spectrum: Partisan Bill (Republican 2-0)

Status: (Engrossed - Dead) 2019-05-27 - House Conference caucus date [HB2357 Detail]

Download: Arizona-2019-HB2357-Engrossed.html

 

 

 

Conference Engrossed

 

 

 

 

State of Arizona

House of Representatives

Fifty-fourth Legislature

First Regular Session

2019

 

 

 

HOUSE BILL 2357

 

 

 

AN ACT

 

amending sections 13-3622, 36-601.01, 36-798 and 36-798.06, Arizona Revised Statutes; amending title 36, chapter 6, article 14, Arizona Revised Statutes, by adding section 36-798.07; relating to public health control.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 


Be it enacted by the Legislature of the State of Arizona:

Section 1.  Section 13-3622, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3622.  Furnishing of tobacco product, vapor product or tobacco or shisha instruments or paraphernalia to minor; minor accepting or receiving tobacco product, vapor product or tobacco or shisha instruments or paraphernalia; illegally obtaining tobacco product, vapor product or tobacco or shisha instruments or paraphernalia by underage person; classification; definitions

A.  A person who knowingly sells, gives or furnishes a tobacco product, a vapor product or any instrument or paraphernalia that is solely designed for the smoking or ingestion of tobacco or shisha, including a hookah or waterpipe, to a minor is guilty of a petty offense.

B.  A minor who buys, or has in his possession or knowingly accepts or receives from any person, a tobacco product, a vapor product or any instrument or paraphernalia that is solely designed for the smoking or ingestion of tobacco or shisha, including a hookah or waterpipe, is guilty of a petty offense, and if the offense involves any instrument or paraphernalia that is solely designed for the smoking or ingestion of tobacco or shisha, shall pay a fine of not less than one hundred dollars $100 or perform not less than thirty hours of community restitution.

C.  A minor who misrepresents the  minor's age to any another person by means of a written instrument of identification with the intent to induce the other person to sell, give or furnish a tobacco product, a vapor product or any instrument or paraphernalia that is solely designed for the smoking or ingestion of tobacco or shisha, including a hookah or waterpipe, in violation of subsection A or B of this section is guilty of a petty offense and, notwithstanding section 13‑802, shall pay a fine of not more than five hundred dollars $500.

D.  This section does not apply to any of the following:

1.  Cigars, cigarettes or cigarette papers, smoking or chewing tobacco or any instrument or paraphernalia that is solely designed for the smoking or ingestion of tobacco or shisha, including a hookah or waterpipe, if it is used or intended to be used in connection with a bona fide practice of a religious belief and as an integral part of a religious or ceremonial exercise.

2.  Any instrument or paraphernalia that is solely designed for the smoking or ingestion of tobacco or shisha, including a hookah or waterpipe, that is given to or possessed by a minor if the instrument or paraphernalia was a gift or souvenir and is not used or intended to be used by the minor to smoke or ingest tobacco or shisha.

E.  For the purposes of this section:

1.  "Electronic smoking device":

(a)  Means a device that can be used to deliver aerosolized or vaporized nicotine to a person who inhales from the device, including an e-cigarette, e-cigar, e-pipe, vape pen or e-hookah, and any component, part or accessory of the device, whether or not sold separately.

(b)  Includes any substance that is intended to be aerosolized or vaporized during the use of the device.

1.  2.  "Shisha" includes any mixture of tobacco leaf and honey, molasses or dried fruit or any other sweetener.

2.  3.  "Tobacco product":

(a)  Means any of the following:

(a)  Cigars.

(b)  Cigarettes.

(c)  Cigarette papers of any kind.

(d)  Smoking tobacco of any kind.

(e)  Chewing tobacco of any kind product that is made or derived from tobacco or that contains nicotine and that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled or ingested by any other means.

(b)  Includes a cigarette, a cigar, pipe tobacco, chewing tobacco, shisha, snuff, snus and an electronic smoking device and any component, accessory, instrument or paraphernalia that is used in the consumption of a tobacco product, whether or not it contains nicotine, or that is solely designed for the smoking or ingesting of tobacco or shisha, including a hookah, a waterpipe, a filter, rolling papers, a pipe or liquids used in electronic smoking devices.

(c)  Does not include drugs, devices or combination products, as those terms are defined in the federal food, drug and cosmetic act, that are authorized for sale by the United States food and drug administration.

3.  "Vapor product" means a noncombustible tobacco‑derived product containing nicotine that employs a mechanical heating element, battery or circuit, regardless of shape or size, that can be used to heat a liquid nicotine solution contained in cartridges.  Vapor product does not include any product that is regulated by the United States food and drug administration under chapter V of the federal food, drug and cosmetic act. END_STATUTE

Sec. 2.  Subject to the requirements of article IV, part 1, section 1, Constitution of Arizona, section 36-601.01, Arizona Revised Statutes, is amended to read:

START_STATUTE36-601.01.  Smoke-free Arizona act

A.  Definitions. The following words and phrases, whenever used in this section, shall be construed as defined in this section:

1.  "Electronic smoking device":

(a)  Means any product containing or delivering nicotine or any other substance intended for human consumption that can be used by a person in any manner to inhale vapor or aerosol from the product.

(b)  Includes any device that is manufactured, distributed, marketed or sold as an e-cigarette, e-cigar, e-pipe, e-hookah or vape pen or under any other product name or descriptor.

1.  2.  "Employee" means any person who performs any service on a full‑time, part-time or contracted basis whether or not the person is denominated an employee or independent contractor or otherwise and whether or not the person is compensated or is a volunteer.

2.  3.  "Employer" means a person, a business, a partnership, an association, the state of Arizona and its political subdivisions, corporations, including a municipal corporations corporation, trust or non-profit nonprofit entity that employs the services of one or more individual persons.

3.  4.  "Enclosed area" means all space between a floor and ceiling that is enclosed on all sides by permanent or temporary walls or windows (exclusive of doorways), which extend from the floor to the ceiling.  Enclosed area includes a reasonable distance from any entrances, windows and ventilation systems so that persons entering or leaving the building or facility shall not be subjected to breathing tobacco smoke and so that tobacco smoke does not enter the building or facility through entrances, windows, ventilation systems or any other means bounded on at least two sides by walls, doorways or windows, whether open or closed. For the purposes of this paragraph, "wall" includes any retractable divider, garage door or other physical barrier, whether temporary or permanent and whether or not containing openings of any kind.

4.  5.  "Health care facility" means any enclosed area utilized used by any health care institution licensed according to title 36 chapter 4, chapter 6 article 7 of this chapter or chapter 4 or 17 of this title, or any health care professional licensed according to title 32 chapters chapter 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39, 41 or 42.

5.  6.  "Person" means an individual, partnership, corporation, limited liability company, entity, association, governmental subdivision or unit of a governmental subdivision, or a public or private organization of any character.

6.  7.  "Physically separated" means all space between a floor and ceiling which that is enclosed on all sides by solid walls or windows (exclusive of door or passageway) and independently ventilated from smoke-free areas, so that air within permitted smoking areas does not drift or get vented into smoke‑free areas.

7.  8.  "Places of employment" means an enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including office buildings, work areas, auditoriums, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, cafeterias, hallways, stairs, elevators, health care facilities, private offices and vehicles owned and operated by the employer during working hours when the vehicle is occupied by more than one person.  A private residence is not a  "place of employment unless it is used as a child care, adult day care or health care facility.

9.  "Public place" means any enclosed area to which the public is invited or in which the public is permitted, including airports, banks, bars, common areas of apartment buildings, condominiums or other multifamily housing facilities, educational facilities, entertainment facilities or venues, health care facilities, hotel and motel common areas, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports facilities, theaters and waiting rooms.  A private residence is not a  "public place unless it is used as a child care, adult day care, or health care facility.

10.  "Retail tobacco store" means a retail store that derives the majority of its sales from tobacco products and accessories.

11.  "Smoking":

(a)  Means inhaling, exhaling, burning or carrying or possessing any lighted tobacco product, including cigars, cigarettes, pipe tobacco and any other lighted tobacco product or heated cigar, cigarette, pipe, hookah or other lighted or heated tobacco or plant product intended for inhalation, including marijuana, whether natural or synthetic, in any manner or in any form.

(b)  Includes using an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or using any oral smoking device to circumvent the prohibition of smoking in this section.

12.  "Sports facilities" means enclosed areas of sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, billiard halls, bowling alleys and other similar places where members of the general public assemble to engage in physical exercise, participate in athletic competition or witness sporting events.

8.  13.  "Veteran and fraternal clubs" means a club as defined in A.R.S. 4-101(7)(a)(b) or (c) section 4-101, paragraph 7, subdivision (a), (b) or (c).

B.  Smoking is prohibited in all public places and places of employment within the state of Arizona, except the following:

1.  Private residences, except when used as a licensed child care, adult day care or health care facility.

2.  Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided, however, that if not more than fifty percent of rooms rented to guests in a hotel or motel are so designated.

3.  Retail tobacco stores that are physically separated so that smoke from retail tobacco stores does not infiltrate into areas where smoking is prohibited under the provisions of this section.

4.  Veterans and fraternal clubs when they are not open to the general public.

5.  Smoking when associated with a religious ceremony practiced pursuant to the American Indian religious freedom act of 1978.

6.  Outdoor patios so long as tobacco smoke does not enter areas where smoking is prohibited through entrances, windows, ventilation systems or other means.

7.  A theatrical performance upon on a stage or in the course of a film or television production if the smoking is part of the performance or production.

8.  Retail stores that sell electronic smoking devices exclusively and that have an independent ventilation system so that the emissions from electronic smoking devices used in the store do not infiltrate areas where smoking is prohibited under this section.

C.  The prohibition on smoking in places of employment shall be communicated to all existing employees by the effective date of this section and to all prospective employees upon on their application for employment.

D.  Notwithstanding any other provision of this section, an owner, operator, manager or other person or entity in control of an establishment, facility or outdoor area may declare that entire establishment, facility or outdoor area as a nonsmoking place.

E.  Posting of signs and ashtray removal.

1.   "No smoking signs or the international  "no smoking symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly and conspicuously posted by the owner, operator, manager or other person in control of that place identifying where smoking is prohibited by this section and where complaints regarding violations may be registered.

2.  Every public place and place of employment where smoking is prohibited by this section shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.

3.  All ashtrays shall be removed from any area where smoking is prohibited by this section by the owner, operator, manager or other person having control of the area.

F.  No An employer may not discharge or retaliate against an employee because that employee exercises any rights afforded by this section or reports or attempts to prosecute a violation of this section.

G.  The law This section shall be implemented and enforced by the department of health services as follows:

1.  The department shall design and implement a program, including the establishment of an internet website, to educate the public regarding the provisions of this law section.

2.  The department shall inform persons who own, manage, operate or otherwise control a public place or place of employment of the requirements of this law section and how to comply with its provisions including making information available and providing a toll-free telephone number and e-mail address to be used exclusively for this purpose.

3.  Any member of the public may report a violation of this law section to the department.  The department shall accept oral and written reports of violation and establish an e-mail address(es) and toll‑free telephone number(s) to be used exclusively for the purpose of reporting violations.  A person shall is not be required to disclose the person's identity when reporting a violation.

4.  If the department has reason to believe a violation of this law section exists, the department may enter upon on and into any public place or place of employment for purposes of determining compliance with this law section.  However, the department may inspect public places where food or alcohol is served at any time to determine compliance with this law section.

5.  If the department determines that a violation of this law section exists at a public place or place of employment, the department shall issue a notice of violation to the person who owns, manages, operates or otherwise controls the public place or place of employment.  The notice shall include the nature of each violation, date and time each violation occurred, and department contact person.

6.  The department shall impose a civil penalty on the person in an amount of not less than $100, but not more than $500 for each violation.  In considering whether to impose a fine and the amount of the fine, the department may consider whether the person has been cited previously and what efforts the person has taken to prevent or cure the violation including reporting the violation or taking action under subsection J of this section.  Each day that a violation occurs constitutes a separate violation.  The director may issue a notice that includes the proposed amount of the civil penalty assessment.  A person may appeal the assessment of a civil penalty by requesting a hearing.  If a person requests a hearing to appeal an assessment, the director shall not take further action to enforce and collect the assessment until the hearing process is complete.  The director shall impose a civil penalty only for those days on which the violation has been documented by the department.

7.  If a civil penalty imposed by this section is not paid, the attorney general or a county attorney shall file an action to collect the civil penalty in a justice court or the superior court in the county in which the violation occurred.

8. The department may apply for injunctive relief to enforce these provisions in the superior court in the county in which the violation occurred.  The court may impose appropriate injunctive relief and impose a penalty of not less than $100 but not more than $500 for each violation. Each day that a violation occurs constitutes a separate violation.  If the superior court finds the violations are willful wilful or evidence a pattern of noncompliance, the court may impose a fine up to $5000 $5,000 per violation.

9.  The department may contract with a third party to determine compliance with this law.

10.  The department may delegate to a state agency or political subdivision of this state any functions, powers or duties under this law.

11.  The director of the department may promulgate adopt rules for the implementation to implement and enforcement of enforce this law section.  The department is exempt from the rulemaking procedures in A.R.S. § title 41, chapter 6 except the department shall publish draft rules and thereafter take public input including hold at least two public hearings prior to implementing the rules.  This exemption expires May 1, 2007.

H.  Beginning On June 1, 2008 and every other June 1 thereafter each year, the director of the Arizona department of health services shall issue a report analyzing its activities to enforce this law section, including the activities of all of the state agencies or political subdivisions to whom the department has delegated responsibility under this law section.

I.  An owner, manager, operator or employee of a place regulated by this law section shall inform any person who is smoking in violation of this law section that smoking is illegal and request that the illegal smoking stop immediately.

J.  This law section does not create any new private right of action nor and does it not extinguish any existing common law causes of action.

K.  A person who smokes where smoking is prohibited is guilty of a petty offense with a fine of not less than fifty dollars $50 and not more than three hundred dollars $300.

L.  Smoke‑free Arizona fund

1.  The smoke-free Arizona fund is established consisting of all revenues deposited in the fund pursuant to §42-3251.02 section 42-3251.02 and interest earned on those monies.  The Arizona department of health services shall administer the fund.  On notice from the department, the state treasurer shall invest and divest monies in the fund as provided by §35-313 section 35-313 and monies earned from investment shall be credited to the fund.

2.  All money monies in the smoke-free Arizona fund shall be used to enforce the provisions of this section, provided however except that if there is money remaining monies remain after the department has met its enforcement obligations, that the remaining money monies shall be deposited in the tobacco products tax fund and used for education programs to reduce and eliminate tobacco use and for no other purpose.

3.  Monies in this fund are continuously appropriated, are not subject to further approval, do not revert to the state general fund and are exempt from the provisions of §36-190 section 35-190 relating to the lapsing of appropriations.

M.  This section does not prevent a political subdivision of the this state from adopting ordinances or regulations that are more restrictive than this section. nor does This section does not repeal any existing ordinance or regulation that is more restrictive than this section.

N.  Tribal sovereignty - this section has no application on Indian reservations as defined in ARS 42-3301(2) section 42-3301.END_STATUTE

Sec. 3.  Section 36-798, Arizona Revised Statutes, is amended to read:

START_STATUTE36-798.  Definitions

In this article, unless the context otherwise requires:

1.  "Bar" means that portion of any premises licensed under section 4‑209, subsection B, paragraph 6, 7, 11, 12 or 14 that is primarily used for the selling, consumption or serving of alcoholic beverages and that is not primarily used for the consumption of food on the premises.

2.  "Beedies" or "bidis" means a product containing tobacco that is wrapped in temburni leaf (diospyros melanoxylon) or tendu leaf (diospyros exculpra), or any other product that is offered to, or purchased by, consumers as beedies or bidis.

3.  "Cigar" means a roll of tobacco or any lawful substitute for tobacco that is wrapped in tobacco.

4.  "Cigarette" means a roll of tobacco or any lawful substitute for tobacco that is wrapped in paper or in any substance other than tobacco.

5.  "Electronic smoking device":

(a)  Means a device that can be used to deliver aerosolized or vaporized nicotine to a person who inhales from the device, including an e-cigarette, e-cigar, e-pipe, vape pen or e-hookah, and any component, part or accessory of the device, whether or not sold separately.

(b)  Includes any substance that is intended to be aerosolized or vaporized during the use of the device.

5.  6.  "Minor" means a person who is under eighteen years of age.

6.  7.  "Retail tobacco vendor" means a person who possesses tobacco or tobacco products for the purpose of selling them for consumption and not for resale.

7.  8.  "Smokeless tobacco" includes shredded tobacco, snuff, cavendish and plug, twist and other tobacco products that are intended for oral use but not for smoking.

8.  9.  "Smoking tobacco" includes any tobacco or tobacco product, other than cigarettes and cigars, that is intended to be smoked.

9.  10.  "Tobacco products": includes cigarettes, cigarette papers, cigars, smokeless tobacco and smoking tobacco.

(a)  Means any product that is made or derived from tobacco or that contains nicotine and that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled or ingested by any other means.

(b)  Includes a cigarette, a cigar, pipe tobacco, chewing tobacco, shisha, snuff, snus or an electronic smoking device and any component, accessory, instrument or paraphernalia that is used in the consumption of a tobacco product, whether or not it contains nicotine, or that is solely designed for the smoking or ingesting of tobacco or shisha, including a hookah, a waterpipe, a filter, rolling papers, a pipe or liquids used in electronic smoking devices.

(c)  Does not include drugs, devices or combination products, as those terms are defined in the federal food, drug and cosmetic act, that are authorized for sale by the united states food and drug administration.

10.  11.  "Vending machine" means any mechanical, electrical or electronic device that, on insertion of money, tokens or any other form of payment, automatically dispenses tobacco products. END_STATUTE

Sec. 4.  Section 36-798.06, Arizona Revised Statutes, is amended to read:

START_STATUTE36-798.06.  Delivery sales prohibited; common carriers; civil penalty; forfeiture; unlawful practice; exceptions; violation; classification; definitions

A.  A person shall not do either of the following:

1.  Cause a tobacco product to be ordered or purchased by anyone other than a licensed person or a retailer who orders or purchases from a licensed person, including by ordering or purchasing a tobacco product.

2.  Knowingly provide substantial assistance to a person who violates this section.

B.  A common carrier shall not knowingly transport a tobacco product for a person who is in violation of this section.

C.  Each order or purchase of a tobacco product in violation of subsection A, paragraph 1 of this section constitutes a separate violation under this section.

D.  In addition to any other penalty, a person who violates this section is subject to all of the following:

1.  A civil penalty in an amount not to exceed five thousand dollars $5,000 for each violation.

2.  An injunction to restrain a threatened or actual violation of this section.

3.  Recovery by this state for:

(a)  The costs of any investigation related to a violation of this section.

(b)  The cost of expert witness fees in any action related to a violation of this section.

(c)  The cost of the action related to a violation of this section.

(d)  Reasonable attorney fees.

4.  All state tobacco taxes due under title 42, chapter 3, except as prohibited under section 42‑3402, and all transaction privilege or use taxes due under title 42, chapter 5, including any penalties and interest.

E.  All tobacco products that are seized for a violation of this section shall be forfeited to the state and destroyed pursuant to section 42‑1124.

F.  A violation of this section is an unlawful practice under section 44‑1522 and is in addition to all other causes of action, remedies and penalties that are available to this state.  The attorney general may investigate and take appropriate action pursuant to title 44, chapter 10, article 7.

G.  This section does not apply to either of the following:

1.  The shipment of a tobacco product to a foreign trade zone that is established under 19 United States Code section 81 sections 81a through 81u and title 44, chapter 18 and that is located in this state if the tobacco product is from outside of this country, was ordered by a distributor in another state and is not distributed in this state.

2.  A government employee who is acting in the course of the employee's official duties.

H.  A person who violates this section is guilty of a class 6 felony.

I.  For the purposes of this section:

1.  "Electronic smoking device":

(a)  Means a device that can be used to deliver aerosolized or vaporized nicotine to a person who inhales from the device, including an e-cigarette, e-cigar, e-pipe, vape pen or e-hookah, and any component, part or accessory of the device, whether or not sold separately.

(b)  Includes any substance that is intended to be aerosolized or vaporized during the use of the device.

(c)  Does not include drugs, devices or combination products, as those terms are defined in the federal food, drug and cosmetic act, that are authorized for sale by the united states food and drug administration.

1.  2.  "Licensed person" means a person who is required to be licensed under section 42‑3401.

2.  3.  "Order or purchase" means any of the following:

(a)  By mail or delivery service.

(b)  Through the internet or a computer network.

(c)  By telephone.

(d)  Through any other electronic method.

3.  4.  "Person" means an individual, partnership, firm, association, corporation, limited liability company or partnership, joint venture or other entity.

4.  5.  "Retailer" has the same meaning prescribed in section 42‑5001.

5.  6.  "Tobacco product" means all luxuries included in section 42‑3052, paragraphs 5, 6 and 7.  Tobacco product does not include pipe tobacco, or cigars or electronic smoking devices.END_STATUTE

Sec. 5.  Title 36, chapter 6, article 14, Arizona Revised Statutes, is amended by adding section 36-798.07, to read:

START_STATUTE36-798.07.  Delivery sales; electronic smoking devices; age verification service; registration; warning

A.  A retailer that sells, offers for sale, gives or furnishes an electronic smoking device to another person by mail or delivery service, through an internet or a computer network, by telephone or through any other electronic method must use an independent, third-party age verification service that compares information that is available from public records to the personal information that is entered by the person during the ordering process and that establishes that the person is eighteen years of age or older.

B.  A retailer that engages in the delivery sales of an electronic smoking device as prescribed by subsection a of this section must do the following:

1.  Register with the attorney general's office. The retailer must provide the following information to the attorney general's office:

(a)  The individual's full name.

(b)  The retailer's trade name, if any.

(c)  The address of the retailer's principal place of business and of any other place of business.

(d)  The telephone number for each place of business that is listed in subdivision (c) of this paragraph.

(e)  The retailer's e-mail address.

(f)  The retailer's website address.

(g)  The name, address and telephone number for any agent in this state that is authorized to accept service on behalf of the retailer that is registering.

2.  Include on the outside of each shipping container that contains an electronic smoking device the following warning in a clear and conspicuous manner:

Arizona law prohibits the sale of electronic smoking devices to a person who is under eighteen years of age and requires the payment of all applicable taxes. You are legally responsible for all applicable unpaid taxes on these products. END_STATUTE

Sec. 6.  Requirements for enactment; three-fourths vote

Pursuant to article IV, part 1, section 1, Constitution of Arizona, section 36-601.01, Arizona Revised Statutes, as amended by section 2 of this act, is effective only on the affirmative vote of at least three‑fourths of the members of each house of the legislature.

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