HB1296ham001 94TH GENERAL ASSEMBLY

Human Services Committee

Filed: 3/2/2005

09400HB1296ham001 LRB094 07517 LJB 42595 a

AMENDMENT TO HOUSE BILL 1296

AMENDMENT NO. ______. Amend House Bill 1296 by replacing everything after the enacting clause with the following:

"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.

"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) 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.

(d) 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.

(e) 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. The Commission shall adopt rules governing the application procedure for retail tobacco licenses and the issuance of a license and any other rules necessary for the administration and enforcement of this Act.

Section 25. Fee for licenses. 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.

Section 30. 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 35. Enforcement.

(a) The Commission may revoke the license of a licensee for a violation of this Act. A decision of the Commission to revoke a license is appealable to the appropriate circuit 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.

(b) The Commission shall impose a fine upon any person who violates the provisions of this 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.

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

(d) 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.

(e) 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.".