S T A T E O F N E W Y O R K
________________________________________________________________________
933--A
2013-2014 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2013
___________
Introduced by Sens. MARTINS, BOYLE, CARLUCCI, GIPSON, GOLDEN, MARCHIONE
-- read twice and ordered printed, and when printed to be committed to
the Committee on Consumer Protection -- reported favorably from said
committee and committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the general business law, in relation to prohibiting the
retail sale and distribution of novelty lighters
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The general business law is amended by adding a new section
2 391-s to read as follows:
3 S 391-S. SALE AND DISTRIBUTION OF NOVELTY LIGHTERS PROHIBITED. 1.
4 DEFINITIONS:
5 (A) "AUDIO EFFECTS" MEANS MUSIC, ANIMAL SOUNDS, WHISTLES, BUZZERS,
6 BEEPERS OR OTHER NOISES NOT TYPICALLY CAUSED BY OR PERTINENT TO THE
7 FLAME-PRODUCING FUNCTION OF THE LIGHTER.
8 (B) "DISTRIBUTE" MEANS TO:
9 (I) DELIVER TO A PERSON OTHER THAN THE PURCHASER, FOR RETAIL SALE; OR
10 (II) PROVIDE AS PART OF A COMMERCIAL PROMOTION OR AS A PRIZE OR PREMI-
11 UM.
12 (C) "IMPORTER" MEANS A PERSON WHO CAUSES A LIGHTER TO ENTER THIS STATE
13 FROM A MANUFACTURING, WHOLESALE, DISTRIBUTION OR RETAIL SALES POINT
14 OUTSIDE THIS STATE, FOR THE PURPOSE OF SELLING OR DISTRIBUTING THE
15 LIGHTER WITHIN THIS STATE OR WITH THE RESULT THAT THE LIGHTER IS SOLD OR
16 DISTRIBUTED WITHIN THIS STATE.
17 (D) "LIGHTER" MEANS A MECHANICAL OR ELECTRICAL DEVICE OF A TYPE TYPI-
18 CALLY USED FOR IGNITING TOBACCO PRODUCTS BY USE OF A FLAME.
19 (E) "NOVELTY LIGHTER" MEANS A MECHANICAL OR ELECTRICAL DEVICE TYPICAL-
20 LY USED FOR THE PURPOSE OF PRODUCING A FLAME TO LIGHT CIGARETTES, CIGARS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02934-02-3
S. 933--A 2
1 OR PIPES AND WHICH, DUE TO THE PHYSICAL OR AUDIO FEATURES OF THE DEVICE,
2 EXCLUDING ITS CAPABILITY OF PRODUCING A FLAME, WOULD REASONABLY BE
3 EXPECTED TO CAUSE THE LIGHTER TO BE APPEALING OR ATTRACTIVE TO A CHILD
4 INCLUDING, BUT NOT LIMITED TO, LIGHTERS THAT RESEMBLE A CARTOON CHARAC-
5 TER, TOY, GUN, WATCH, MUSICAL INSTRUMENT, VEHICLE, ANIMAL, BEVERAGE,
6 SPORTING EQUIPMENT OR THAT IS CAPABLE OF CREATING AUDIO EFFECTS OR
7 DISPLAYING FLASHING LIGHTS.
8 (F) "SELL" MEANS TO PROVIDE OR PROMISE TO PROVIDE TO A WHOLESALE,
9 RETAIL, MAIL-ORDER OR OTHER PURCHASER IN EXCHANGE FOR CONSIDERATION.
10 2. NO PERSON, FIRM, PARTNERSHIP, ASSOCIATION OR CORPORATION SHALL
11 DISTRIBUTE, SELL AT RETAIL OR OFFER FOR RETAIL SALE IN THIS STATE, OR TO
12 ANY PERSON LOCATED IN THIS STATE, A NOVELTY LIGHTER.
13 3. THIS SECTION SHALL NOT APPLY: (A) TO A NOVELTY LIGHTER MANUFACTURED
14 BEFORE JANUARY FIRST, NINETEEN HUNDRED EIGHTY AND WHICH IS CONSIDERED A
15 COLLECTIBLE ITEM WITHIN THE COLLECTIBLE TRADE; (B) TO A DISPOSABLE OR
16 REFILLABLE LIGHTER WITH A LOGO, LABEL, DECAL OR ARTWORK PRINTED THEREON
17 OR ON HEAT SHRINKABLE SLEEVES ATTACHED THERETO BUT WHICH DOES NOT OTHER-
18 WISE RESEMBLE A NOVELTY LIGHTER; OR (C) IF NOT INTENDED FOR SALE OR USE
19 IN THE STATE, TO THE INTERSTATE TRANSPORTATION OF A NOVELTY LIGHTER OR
20 TO THE TEMPORARY STORAGE OF A NOVELTY LIGHTER WHILE IN INTERSTATE
21 COMMERCE.
22 4. THE DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES SHALL
23 ESTABLISH AND PUBLICIZE A TOLL FREE TELEPHONE HOTLINE NUMBER TO RECEIVE
24 INFORMATION FROM THE PUBLIC ABOUT SUSPECTED VIOLATIONS OF THIS SECTION.
25 THE DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES SHALL PROVIDE
26 INFORMATION ON ITS AGENCY WEBSITE REGARDING THIS SECTION AND THE DANGERS
27 OF NOVELTY LIGHTERS, AND PROVIDE THE OPPORTUNITY FOR PERSONS SUSPECTING
28 VIOLATIONS OF THIS SECTION TO TRANSMIT SUCH INFORMATION TO THE DIVISION
29 THROUGH THE INTERNET.
30 5. WHENEVER ANY POLICE OFFICER DESIGNATED IN SECTION 1.20 OF THE CRIM-
31 INAL PROCEDURE LAW OR A PEACE OFFICER DESIGNATED IN SUBDIVISION FOUR AND
32 SUBDIVISION SEVENTY-NINE PERTAINING TO THE OFFICE OF FIRE PREVENTION AND
33 CONTROL, OF SECTION 2.10 OF SUCH LAW, ACTING PURSUANT TO HIS OR HER
34 SPECIAL DUTIES, SHALL DISCOVER A NOVELTY LIGHTER IN VIOLATION OF THIS
35 SECTION, SUCH OFFICER IS HEREBY AUTHORIZED AND EMPOWERED FORTHWITH TO
36 SEIZE AND TAKE POSSESSION OF SUCH ITEMS. SUCH SEIZED ITEMS SHALL BE
37 TURNED OVER TO THE STATE FIRE ADMINISTRATOR OR HIS DESIGNEE.
38 6. ANY PERSON WHO VIOLATES THIS SECTION SHALL BE SUBJECT TO A CIVIL
39 PENALTY AS FOLLOWS:
40 (A) NOT MORE THAN TEN THOUSAND DOLLARS IF THE PERSON IS A MANUFACTURER
41 OR IMPORTER OF LIGHTERS.
42 (B) NOT MORE THAN ONE THOUSAND DOLLARS IF THE PERSON IS A WHOLESALER
43 OF LIGHTERS OR DISTRIBUTES LIGHTERS BY MEANS OTHER THAN DISTRIBUTION
44 DIRECTLY TO CONSUMERS.
45 (C) NOT MORE THAN FIVE HUNDRED DOLLARS IF THE PERSON IS:
46 (I) A RETAIL SELLER OF LIGHTERS; OR
47 (II) A PERSON DISTRIBUTING LIGHTERS, IF THE PERSON IS OTHER THAN A
48 MANUFACTURER, IMPORTER OR WHOLESALER.
49 (D) POSSESSION OF EACH NOVELTY LIGHTER IN VIOLATION OF THIS SECTION
50 SHALL CONSTITUTE A SEPARATE VIOLATION. IF A PERSON CONTINUES TO VIOLATE
51 THIS SECTION AFTER BEING GIVEN WRITTEN NOTICE OF THE VIOLATION, EACH DAY
52 THAT THE VIOLATION CONTINUES IS A SEPARATE OFFENSE SUBJECT TO A CIVIL
53 PENALTY.
54 7. THE DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES IS HEREBY
55 AUTHORIZED TO PROMULGATE SUCH RULES AND REGULATIONS AS ARE DEEMED NECES-
56 SARY TO IMPLEMENT THE PROVISIONS OF THIS SECTION, INCLUDING PRESCRIBING
S. 933--A 3
1 MINIMUM STANDARDS FOR ADMINISTRATION AND ENFORCEMENT OF THIS SECTION.
2 THE DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES MAY ASSESS
3 MONETARY PENALTIES AS ESTABLISHED HEREIN, SUCH PENALTIES COMMENCING ON
4 THE FIRST DAY FOLLOWING THE ABATEMENT DATE SPECIFIED IN AN ORDER, AND
5 CONTINUING UNTIL THE VIOLATION HAS BEEN ABATED. ABATEMENT OF VIOLATIONS
6 SHALL BE VERIFIED BY THE STATE FIRE ADMINISTRATOR.
7 8. IN ADDITION TO THE ENFORCEMENT AUTHORITY GRANTED TO THE DIVISION OF
8 HOMELAND SECURITY AND EMERGENCY SERVICES IN THIS SECTION, WHENEVER THERE
9 SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION MAY BE MADE BY THE
10 ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK, TO
11 A COURT OR JUSTICE HAVING JURISDICTION BY A SPECIAL PROCEEDING TO ISSUE
12 AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE
13 DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH VIOLATION; AND IF
14 IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE
15 DEFENDANT HAS, IN FACT, VIOLATED THIS SECTION, AN INJUNCTION MAY BE
16 ISSUED BY THE COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER
17 VIOLATIONS, WITHOUT REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN
18 INJURED OR DAMAGED THEREBY. IN ANY SUCH PROCEEDING, THE COURT MAY MAKE
19 ALLOWANCES TO THE ATTORNEY GENERAL AS PROVIDED IN PARAGRAPH SIX OF
20 SUBDIVISION (A) OF SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRAC-
21 TICE LAW AND RULES, AND DIRECT RESTITUTION. WHENEVER THE COURT SHALL
22 DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT MAY
23 IMPOSE A CIVIL PENALTY AS SET FORTH IN SUBDIVISION SIX OF THIS SECTION.
24 IN CONNECTION WITH ANY SUCH PROPOSED APPLICATION, THE ATTORNEY GENERAL
25 IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF THE RELEVANT
26 FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW
27 AND RULES.
28 S 2. This act shall take effect immediately. Notwithstanding such
29 effective date, no person shall be subject to a civil penalty for any
30 violation that occurs before the ninetieth day after such effective
31 date.