Bill Text: NJ A1111 | 2012-2013 | Regular Session | Introduced
Bill Title: Prohibits sale of tobacco products in vending machines and establishes requirements for retail sales of tobacco.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-10 - Introduced, Referred to Assembly Health and Senior Services Committee [A1111 Detail]
Download: New_Jersey-2012-A1111-Introduced.html
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Assemblyman ANGEL FUENTES
District 5 (Camden and Gloucester)
SYNOPSIS
Prohibits sale of tobacco products in vending machines and establishes requirements for retail sales of tobacco.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning the sale of tobacco products and amending and supplementing chapter 40A of Title 54 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) a. Notwithstanding the provisions of section 202 of P.L.1948, c.65 (C.54:40A-4) to the contrary, a person who owns a vending machine shall not use that vending machine to sell, offer for sale, give away or deliver any tobacco product at or on any public or private premises.
As used in this act, "tobacco product" means any cigarettes made of tobacco or any other matter or substance which can be smoked or any cigarette paper or tobacco in any form, including smokeless tobacco.
b. A vending machine used in violation of this act may be sealed or seized and forfeited to the municipality in which the violation occurred subject to the limitations of N.J.S.2C:64-5; except that the forfeiture shall not become effective until the municipality notifies in writing the owner of the vending machine and posts a notice on the machine stating that, unless the machine is removed within 72 hours of the posting of the notice and any daily fines imposed are paid, forfeiture shall occur. Ninety days after forfeiture, the municipality may sell the vending machine at a public auction, after giving notice of the sale by certified mail to the owner, if his name and address is known, and by publication at least five days before the date of the sale in one newspaper circulating in the municipality in which the machine is to be sold.
c. At any time prior to the sale, a vending machine seized by or forfeited to a municipality pursuant to this section, may be redeemed by its owner, or other person entitled to it, upon payment to the municipality of an amount equal to the actual expense incurred by the municipality in removing the machine plus 6% interest.
2. (New section) A retail dealer who holds a license to sell tobacco products pursuant to section 202 of P.L.1948, c.65 (C.54:40A-4) shall only display tobacco products available for retail sale in an area under control of or within the line of sight of the retail dealer or other employee of the establishment.
As used in this section: "under control" means in a locked display case or within the reach of the retail dealer or other employee standing behind the counter; and "within the line of sight" means visible to the retail dealer or other employee standing behind the counter.
The provisions of this section shall not be construed to preclude a municipality from adopting more stringent restrictions on the sale of tobacco products than are required pursuant to this section.
The provisions of this section shall not apply to any business establishment, including, but not limited to, a tobacco specialty store, to which persons under 18 years of age are not admitted or are not admitted unless accompanied by an adult.
3. (New section) A person who violates the provisions of this act shall be liable to a civil penalty of not less than $100 and not more than $300 for the first violation and $1,000 for the second and each subsequent violation, for each day that the person is determined to be in violation of this act. The civil penalty imposed pursuant to this section shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes or a law enforcement officer having enforcement authority in that municipality may issue a summons for a violation of the provisions of this act and may serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this section shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid into the treasury of the municipality in which the violation occurred for the general uses of the municipality.
4. Section 102 of P.L.1948, c.65 (C.54:40A-2) is amended to read as follows:
102. For the purposes of this act and unless otherwise required by the context:
a. "Cigarette" means any roll for smoking made wholly or in part of tobacco, or any other substance or substances other than tobacco, irrespective of size, shape or flavoring, the wrapper or cover of which is made of paper or any other substance or material, excepting tobacco. A "single cigarette" is a cigarette sold or offered for sale individually.
b. "Director" means the Director of the Division of Taxation, in the Department of the Treasury.
c. "Distributor" means and includes any person, wherever resident or located, who brings or causes to be brought into this State unstamped cigarettes purchased directly from the manufacturers thereof and stores, sells or otherwise disposes of the same after they shall reach this State.
d. "Wholesale dealer" shall include any person, wherever resident or located, other than a distributor, as defined herein, who:
(1) Purchases cigarettes from any other person who purchases from the manufacturer and who acquires such cigarettes solely for the purpose of bona fide resale to retail dealers or to other persons for the purposes of resale only; or
(2) Services retail outlets by the maintenance of an established place of business for the purchase of cigarettes, including, but not limited to, the maintenance of warehousing facilities for the storage and distribution of cigarettes.
e. "Retail dealer" means any person who is engaged in this State in the business of selling cigarettes at retail. [Any person placing a cigarette vending machine at, on or in any premises shall be deemed to be a retail dealer for each such vending machine.]
f. "Consumer" means any person except a distributor or a manufacturer who acquires for consumption, storage or use in this State cigarettes to which New Jersey revenue stamps have not been attached.
g. "Place of business" means and includes any place where cigarettes are sold or where cigarettes are brought or kept for the purpose of sale or consumption, including so far as applicable any vessel, vehicle, airplane[,] or train [or cigarette vending machine].
h. "Licensed distributor" means any distributor, as defined in this act, licensed under the provisions of this act.
i. "Licensed wholesale dealer" means any wholesale dealer, as defined in this act, licensed under the provisions of this act.
j. "Licensed retail dealer" means any retail dealer, as defined in this act, licensed under the provisions of this act.
k. "Licensed consumer" means any consumer, as defined in this act, licensed under the provisions of this act.
l. "Person" means any individual, firm, corporation, copartnership, joint venture, association, receiver, trustee, guardian, executor, administrator, or any other person acting in a fiduciary capacity, or any estate, trust or group or combination acting as a unit, the State Government and any political subdivision thereof, and the plural as well as the singular, unless the intention to give a more limited meaning is disclosed by the context.
m. "Rules and regulations" means those made and promulgated by the director in the administration of this act.
n. "Sale" means any sale, transfer, exchange, theft, barter, gift, or offer for sale and distribution, in any manner or by any means whatsoever.
o. "Stamp" means any impression, device, stamp, label or print manufactured, printed or made as prescribed by the director.
p. "Taxpayer" means any person subject to a tax imposed by this act, or any person required to be licensed under this act.
q. "Treasurer" means the State Treasurer.
r. "Use" means the exercise of any right or power incidental to the ownership of cigarettes.
s. "Manufacturer" means and includes any person, wherever resident or located, who manufactures or produces, or causes to be manufactured or produced, cigarettes and sells, uses, stores or distributes the same regardless of whether they are intended for sale, use or distribution within or without this State.
t. "Manufacturer's representative" means and includes any person, employed by a manufacturer, who, for promotional purposes, sells, stores, handles or distributes cigarettes, within this State, limited exclusively to cigarettes manufactured by the employing manufacturer.
u. "Licensed manufacturer" means any manufacturer, as defined in this act, licensed under the provisions of this act.
v. "Licensed manufacturer's representative" means any manufacturer's representative, as defined in this act, licensed under the provisions of this act.
(cf: P.L.2004, c.96, s.3.)
5. Section 202 of P.L.1948, c.65 (C.54:40A-4) is amended to read as follows:
202. a. All licenses shall be issued by the director, who shall make rules and regulations respecting applications therefor and issuance thereof.
b. The following individuals related to distributors, wholesale dealers, [retail dealers operating more than nine cigarette vending machines,] and retail dealers who sell cigarettes at retail at more than nine premises shall submit with applications for a license, fingerprints, which shall be processed through the Federal Bureau of Investigation and the New Jersey State Police, and such other information as the director may require:
(1) Individuals having any interest whatsoever in a proprietorship or company.
(2) Partners of a partnership, regardless of percentage.
(3) Joint venturers in a joint venture.
(4) Officers, directors, and all stockholders holding directly or indirectly a beneficial interest in more than 5% of the outstanding shares of a corporation.
(5) Employees receiving in excess of [$30,000.00] $30,000 per annum compensation whether as salary, commission, bonus or otherwise and persons who, in the judgment of the director are employed in a supervisory capacity or have the power to make or substantially affect discretionary business judgments of the applicant entity with regard to the cigarette business.
(6) Other persons who the director establishes have the ability to control the applicant entity through any means including but not limited to, contracts, loans, mortgages or pledges of securities where such control is inimical to the policies of this act because such person is a career offender or a member of a career offender cartel as defined in paragraph (2) of subsection e. of this section. Individuals licensed pursuant to the "Casino Control Act," P.L.1977, c.110 (C.5:12-1 et seq.) shall only be required to produce evidence of said licensure in satisfaction of the foregoing.
The provisions in this subsection as to wholesale dealers, [retail dealers operating more than nine cigarette vending machines,] and retail dealers who sell cigarettes at retail at more than nine premises do not apply to retail grocery stores and supermarkets primarily engaged in the self-service sale of foods and household supplies for off-premises consumption, to drug stores and pharmacies engaged in the retail sale of prescription drugs and patent medicines and which may carry a number of lines of related merchandise, or to restaurants, hotels and motels operated by national corporations with such premises in six or more states and primarily engaged in the sale of foods for retail consumption or in the rental of rooms for lodging.
c. The director shall not issue any license under this act where he has reasonable cause to believe that anyone required to submit information under this act has willfully withheld information requested of him for the purpose of determining the eligibility of the applicant to receive a license or where the director has reasonable cause to believe that information submitted in the application is false and misleading and is not made in good faith.
d. The director shall not issue any license under this act where he has reasonable cause to believe that anyone required to be licensed or anyone required to submit information under this act, has been convicted of any offense in any jurisdiction which would be at the time of conviction a crime involving moral turpitude.
It is further provided that any applicant or person required to submit information who has a charge pending pursuant to any of the foregoing shall disclose that fact to the director. The director may then withhold action on new applications or, in the case of an application for the renewal of a license, issue a temporary license until there has been a disposition of the charge. The director shall have the discretion to waive the prohibition against licensure herein provided upon the presentation of proof that a period of not less than five years has elapsed since the last conviction or the expiration of any period of incarceration imposed with respect thereto.
e. The director shall not issue any license where the applicant or anyone required to submit information has been identified as a career offender or a member of a career offender cartel in such a manner as to create a reasonable belief that the association is of such a nature as to be inimical to the policies of this act or to the taxation, distribution, and sale of cigarettes within the State. The director may request the Attorney General for advice respecting whether a person is a "career offender" within the meaning of this subsection, or is a "contumacious defiant" within the meaning of subsection f. of this section.
As used in this subsection:
(1) "career offender" means any person whose behavior is pursued in an occupational manner or context for the purpose of economic gain, utilizing such methods as are deemed criminal violations of the public policy of this State; and (2) "career offender cartel" means any group of persons who operate together as career offenders.
f. The director shall not issue any license where the applicant or anyone required to submit information has been found to be contumaciously defiant before any legislative investigative body or other official investigative body of this State or of the United States when such body is engaged in the investigation of organized crime, official corruption or the cigarette industry itself.
g. Each such license shall lapse on March 31 of the period for which it is issued, and each such license shall be continued annually upon the conditions that the licensee shall have paid the required fee and complied with all the provisions of this act and the rules and regulations of the director made pursuant thereto.
h. For each license issued to a distributor there shall be paid to the director a fee of [$350.00] $350. If a distributor sells or intends to sell cigarettes at two or more places of business, whether established or temporary, a separate license shall be required for each place of business. Each license, or certificate, thereof, and such other evidence of license shall be exhibited in the place of business for which it is issued and in such manner as may be prescribed by the director. The director shall require each licensed distributor to file with him a bond in an amount not less than [$6,000.00] $6,000 to guarantee the proper performance of his duties and the discharge of his liabilities under this act. The bond shall be executed by such licensed distributor as principal, and by a corporation approved by the director and duly authorized to engage in business as a surety company in the State of New Jersey, as surety. The bond shall run concurrently with the distributor's license.
For each license issued to a manufacturer, and for each continuance thereof, there shall be paid to the director a fee of [$10.00] $10.
For each license issued to a manufacturer's representative, and for each continuance thereof, there shall be paid to the director a fee of [$5.00] $5.
For each license issued to a wholesale dealer, there shall be paid to the director a fee of [$250.00] $250. If a wholesale dealer sells or intends to sell cigarettes at two or more places of business, whether established or temporary, a separate license shall be required for each place of business. Each license, or certificate thereof, and such other evidence of license shall be exhibited in the place of business for which it is issued and in such manner as may be prescribed by the director.
For each license issued to a retail dealer and for each continuance thereof, [excepting a retail dealer operating a cigarette vending machine,] there shall be paid to the director a fee of $40 in 1996 and $50 in 1997 and each year thereafter. For each license issued to a retail dealer operating a vending machine for the sale of cigarettes and for each continuance thereof, there shall be paid to the director a fee of $40 in 1996 and $50 in 1997 and each year thereafter. Of the license fee of $40 and $50, respectively, $30 shall be credited in 1996 and $40 shall be credited in 1997 and each year thereafter to the special projects and development fund in the Department of Health and Senior Services established pursuant to section 7 of P.L.1966, c.36 (C.26:2F-7) for the purposes specified therein, and $5 shall be credited each year, beginning with 1996, to the division for administrative costs associated with the requirements established pursuant to subsection i. of this section and section 2 of P.L.1995, c.320 (C.26:3A2-20.1). The director shall determine and certify to the State Treasurer on a monthly basis the amount of revenues collected by the director which are to be credited to the special projects and development fund in the Department of Health and Senior Services.
If a retail dealer sells or intends to sell cigarettes at two or more places of business, whether established or temporary, or whether in the same building or not, a separate license shall be required for each place of business. [Each vending machine for the sale of cigarettes shall be separately licensed and be deemed a separate place of business.] Each license, or certificate thereof, and such other evidence of license shall be exhibited in the place of business for which it is issued and in such manner as may be prescribed by the director.
Any person licensed only as a distributor or as a manufacturer or as a manufacturer's representative or as a wholesale dealer or as a retail dealer shall not operate in any other capacity except under that for which he is licensed herein, unless the appropriate license or licenses therefor are first secured.
For each license issued to a consumer and for each continuance thereof there shall be paid to the director a fee of [$1.00] $1. Each license, or certificate thereof, or such other evidence of license as may be prescribed by the director, shall be so kept by the consumer as to be readily available for inspection.
No license shall be issued to any person except upon the payment of the full fee therefor, any statute or exemption to the contrary notwithstanding. No license shall be assignable or transferable, except as hereinafter provided, but in the case of death, bankruptcy, receivership, or incompetency of the licensee, or if for any other reason whatsoever the business of the licensee shall devolve upon another by operation of law, the director may, in his discretion, extend said license for a limited time to the executor, administrator, trustee, receiver, or person upon whom the same has devolved. A purchaser or assignee of a licensed wholesaler or licensed distributor, or any other person upon whom the business of a licensed wholesaler or licensed distributor shall devolve by operation of law, shall upon application to the director, be entitled to an assignment or transfer of the wholesale or distributor license for the balance of the existing license period upon payment of a transfer fee of [$5.00] $5 and subject to his qualification to be a licensed wholesaler or licensed distributor under the provisions of this act. [The license issued for each vending machine for the sale of cigarettes may be transferred from machine to machine in the same ownership.] No refund of the license fee shall be paid to any person upon the surrender or revocation of any license except a license fee paid or collected in error. But, upon payment of a [$1.00] $1 fee, there may be obtained (1) a duplicate license, or certificate thereof, in the event the original is lost, destroyed or defaced, and (2) an amended license, or certificate thereof, upon a change in the location of the place of business of any distributor or dealer.
i. The director shall require an applicant for a cigarette retail dealer license[, including a license to operate a vending machine for the sale of cigarettes,] to include on the application the address of the place of business where the cigarettes will be sold or the address where the vending machine will be located, as the case may be.
If the place of business or the vending machine is moved to a different address than that provided on the license application, the licensee shall notify the director within 30 days of the change of address.
(cf: P.L.1997, c.373, s.1)
6. Section 2 of P.L.1987, c.423 (C.54:40A-4.1) is amended to read as follows:
2. Notwithstanding any other provision of law to the contrary, a person to whom a license is issued pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.) shall, as a condition of the license, conspicuously post a legible sign at the point of display of the tobacco products and at the point of sale. The sign[, which also shall be posted conspicuously on any licensed cigarette vending machine,] shall be at least six inches by three inches in bold letters at least one-quarter inch high and shall read as follows:
"A person who sells or offers to sell a tobacco product to a person under 19 years of age shall pay a penalty of up to $1,000 and may be subject to a license suspension or revocation.
Proof of age may be required for purchase."
(cf: P.L.2005, c.384, s.6.)
7. This act shall take effect on the 90th day after enactment.
STATEMENT
This bill prohibits the sale of tobacco products in vending machines and requires that those products only be displayed in an area under control of the retailer or other employee of the establishment.
Specifically, the bill provides as follows:
· A vending machine used to sell tobacco in violation of the bill may be sealed or seized and forfeited to the municipality in which the violation occurred.
· In retail establishments that sell tobacco products, the products are to only be displayed in a locked display case or within reach of retail dealer or employee standing behind the counter and within the line of sight of person standing behind the counter.
· A person who violates the bill's provisions is subject to a civil penalty ranging from $100 to $1,000 a day, for each day that the person is determined to be in violation of the bill.
· A municipality is free to adopt even more stringent restrictions on the sale of tobacco products than are required pursuant to this bill.
· Local boards of health and law enforcement authorities are given responsibility for enforcing the penalties imposed in this bill, and a civil penalty recovered from a violator is to be paid to the municipality where the violation occurred.
· Exempts any business, including but not limited to, a tobacco specialty store, to which persons under 19 are not admitted unless with an adult.
The bill takes effect on the 90th day after enactment.
