2014 -- S 3095 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO CRIMINAL OFFENSES - ELECTRONIC NICOTINE DELIVERY SYSTEMS

     Introduced By: Senators Ruggerio, Goodwin, Pearson, Ottiano, and Lynch

     Date Introduced: June 11, 2014

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 11-9-13, 11-9-13.1, 11-9-13.4, 11-9-13.6, 11-9-13.7, 11-9-13.8,

11-9-13.10, 11-9-13.13 and 11-9-14 of the General Laws in Chapter 11-9 entitled "Children" are

hereby amended to read as follows:

     11-9-13. Purchase, sale or delivery of tobacco products to persons under eighteen --

Posting notice of law. -- No person under eighteen (18) years of age shall purchase, nor shall any

person sell, give or deliver to any person under eighteen (18) years of age, any tobacco in the

form of cigarettes, bidi cigarettes, cigars, little cigars, flavored cigars known as "blunts"

unflavored "blunts", flavored and unflavored blunt wraps, cigarette rolling papers of any size or

composition, cigarillos, and tiparillos, pipe tobacco, chewing tobacco, electronic nicotine delivery

systems or snuff. Any person, firm, or corporation that owns, manages, or operates a place of

business in which tobacco products are sold, including sales through cigarette vending machines,

shall post notice of this law conspicuously in the place of business in letters at least three-eighths

of an inch (3/8") high.

     11-9-13.1. Cigarette and tobacco vending machines. -- (a) No cigarettes nor any other

tobacco product nor electronic nicotine delivery system product shall be sold from any device or

vending machine which is in an area not continuously supervised and in direct line of sight of an

authorized person employed by the person, firm, or corporation that owns the business occupying

the premises in which the device or vending machine is located, nor shall any tobacco product nor

electronic nicotine delivery system product be sold from any device or vending machine which is

in an area supervised by such an authorized person unless the device or vending machine is

equipped with an electronic locking device which will not allow the device or vending machine to

dispense a pack of cigarettes, or any other tobacco product, nor electronic nicotine delivery

system product unless it is electronically unlocked from a secured position inaccessible to the

public and under the supervision of an authorized person employed by the person, firm, or

corporation that owns the business occupying the premises in which the device or vending

machine is located. "Direct line of sight" means that the vending machine and the purchaser of

cigarettes or electronic nicotine delivery systems must be visible to the authorized person

pressing the unlock button while the unlock button is being activated. Provided, a locking device

shall not be required in an establishment licensed to sell alcoholic beverages which limits access

to persons over the age of twenty-one (21) years.

      (b) No cigarettes nor any other tobacco product nor electronic nicotine delivery system

product shall be sold from any device or vending machine from which non-tobacco products are

sold.

      (c) No cigarettes shall be sold in packs which contain less than twenty (20) cigarettes.

      (d) Any person, firm, or corporation who owns a business occupying the premises in

which a device or vending machine which dispenses cigarettes or any other tobacco product or

electronic nicotine delivery system product is located who shall violate any of the provisions of

subsections (a) and (b) of this section shall for the first offense be subject to a fine of seventy-five

dollars ($75.00), for the second offense, be subject to a fine of one hundred fifty dollars ($150),

and for the third and any subsequent offense, be subject to a fine of five hundred dollars ($500);

provided, that in the event that there are no offenses in three (3) successive years from the date of

the last offense, then the next offense shall be treated as the first offense.

      (e) Any person, firm or corporation who shall violate subsection (c) of this section shall

for the first offense be subject to a fine of seventy-five dollars ($75.00), for the second offense, be

subject to a fine of one hundred fifty dollars ($150), and for the third and any subsequent offense,

be subject to a fine of five hundred dollars ($500); provided, that in the event that there are no

offenses in three (3) successive years from the date of the last offense, then the next offense shall

be treated as the first offense.

      (f) One-half ( 1/2) of all the fines collected pursuant to this section shall be transferred to

the municipalities in which the citations originated. One-half ( 1/2) of all the fines collected

pursuant to this section shall be transferred to the general fund.

      (g) Severability. - If any provision of this section or the application of it to any person or

circumstance is held invalid, that invalidity shall not affect other provisions or applications of this

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section, which can be given effect without the invalid provision or application, and to this end the

provisions of this section are declared to be severable.

     11-9-13.4. Definitions. -- As used in this chapter:

      (1) "Bidi cigarette" means any product that (i) contains tobacco that is wrapped in

temburni or tender leaf or that is wrapped in any other material identified by rules of the

Department of Health that is similar in appearance or characteristics to the temburni or tender leaf

and (ii) does not contain a smoke filtering device.

      (2) "Court" means any appropriate district court of the state of Rhode Island.

      (3) "Dealer" is synonymous with the term "retail tobacco products dealer".

      (4) "Department of mental health, retardation and hospitals behavioral healthcare,

developmental disabilities and hospitals" means the state of Rhode Island mental health,

retardation behavioral healthcare, developmental disabilities and hospitals department, its

employees, agents or assigns.

      (5) "Department of taxation" means the state of Rhode Island taxation division, its

employees, agents, or assigns.

      (6) "License" is synonymous with the term "retail tobacco products dealer license" or

"electronic nicotine delivery system license."

      (7) "License holder" is synonymous with the term "retail tobacco products dealer" or

"electronic nicotine delivery system license."

      (8) "Person" means any individual person, firm, association, or corporation licensed as a

retail dealer to sell tobacco products within the state.

      (9) "Retail tobacco products dealer" means the holder of a license to sell tobacco

products at retail.

      (10) "Retail tobacco products dealer license" means a license to sell tobacco products at

retail as issued by the department of taxation.

      (11) "Spitting tobacco" also means snuff, powdered tobacco, chewing tobacco, dipping

tobacco, pouch tobacco or smokeless tobacco.

      (12) "Tobacco product(s)" means any product containing tobacco, including bidi

cigarettes, as defined in subdivision (1) of this section, which can be used for, but whose use is

not limited to, smoking, sniffing, chewing or spitting of the product.

      (13) "Underage individual" or "underage individuals" means any child under the age of

eighteen (18) years of age.

      (14) "Little cigars" means and includes any roll, made wholly or in part of tobacco,

irrespective of size or shape and irrespective of whether the tobacco is flavored, adulterated or

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mixed with any other ingredient, where such roll has a wrapper or cover made of tobacco

wrapped in leaf tobacco or any substance containing tobacco paper or any other material, except

where such wrapper is wholly or in greater part made of tobacco and such roll weighs over three

(3) pounds per thousand (1,000).

     (15) "Electronic nicotine delivery system" means an electronic device that may be used to

simulate smoking in the delivery of nicotine or other substance to a person inhaling from the

device, and includes, but is not limited to, an electronic cigarette, electronic cigar, electronic

cigarillo, electronic pipe or electronic hookah and any related device and any cartridge or other

component of such device.

     11-9-13.6. Duties of the department of mental health, retardation and hospitals

Duties of the department of behavioral healthcare, developmental disabilities and hospitals.

-- The department of mental health, retardation and hospitals behavioral healthcare,

developmental disabilities and hospitals shall:

      (1) Coordinate and promote the enforcement of the provisions of this chapter and serve

as the primary liaison from this department to other state or local agencies, departments, or

divisions on issues pertaining to stopping children's access to tobacco and electronic nicotine

delivery systems.

      (2) Provide retail tobacco products dealers signs concerning the prohibition of sales to

children under eighteen (18) years of age. The signs, conforming to the requirements of this

chapter, shall be sold at cost. This sign, or an exact duplicate of it made privately, shall be

displayed in all locations where tobacco products are sold.

      (3) Investigate concurrently with other state and local officials violations of this chapter.

      (4)(i) Utilize unannounced statewide compliance checks of tobacco product sales

including retail tobacco over-the-counter sales, mail order sales initiated via mail, facsimile,

telephone or internet ordering or other types of electronic communications, and tobacco and/or

electronic nicotine delivery systems vending machine sales as part of investigating compliance

with the provisions of this chapter. Underage individuals, acting as agents for the department of

mental health, retardation and hospitals behavioral healthcare, developmental disabilities and

hospitals and with the written permission of a parent or guardian, may purchase, with impunity

from prosecution, tobacco products for the purposes of law enforcement or government research

involving monitoring compliance with this chapter, provided that the underage individuals are

supervised by an adult law enforcement official. Any individual participating in an unannounced

compliance check of over-the-counter or vending machine sales, must state his or her accurate

age if asked by the sales representative of the retail establishment being checked.

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      (ii) In fulfilling the requirement of unannounced statewide compliance checks, the

department of mental health, retardation and hospitals behavioral healthcare, developmental

disabilities and hospitals shall maintain complete records of the unannounced compliance checks,

detailing, at least, the date of the compliance check, the name and address of the retail

establishment checked or the mail order company, the results of the compliance check (sale/no

sale), whether the sale was made as an over-the-counter sale, a mail order purchase or a tobacco

and/or or electronic nicotine delivery systems vending machine sale, and if a citation was issued

for any violation found. The records shall be subject to public disclosure. Further, the department

of mental health, retardation and hospitals behavioral healthcare, developmental disabilities and

hospitals shall report to the owner of each retail establishment checked or mail order company,

the results of any compliance check (sale/no sale) whether the sale was made as an over-the-

counter sale, a mail order purchase or a tobacco and/or electronic nicotine delivery systems

vending machine sale, and if a citation was issued for any violation found.

      (5) Seek enforcement, concurrently with other state and local officials, of the penalties as

detailed in this chapter.

      (6) Develop and disseminate community health education information and materials

relating to this chapter.

     11-9-13.7. Signs concerning sales to individuals under age eighteen (18). -- Signs

provided by the department of behavioral healthcare, developmental disabilities and hospitals, or

an exact duplicate of it made privately, shall: (1) Contain in red bold lettering a minimum of

three-eighths ( 3/8") inch high on a white background the following wording in both English and

Spanish:

     THE SALE OF CIGARETTES, AND OTHER TOBACCO AND ELECTRONIC

NICOTINE DELIVERY SYSTEM PRODUCTS TO PERSONS UNDER THE AGE OF 18 IS

AGAINST RHODE ISLAND LAW (Section 11-9-13.8(1), Rhode Island Statutes) PHOTO ID

FOR PROOF OF AGE IS REQUIRED FOR PURCHASE.

     (2) Contain the phone number at the department of behavioral healthcare, developmental

disabilities and hospitals, where violations of sections 11-9-13.2 -- 11-9-13.19 can be reported, in

addition to any other information required by the department of behavioral healthcare,

developmental disabilities and hospitals.

     (3) Be displayed prominently for public view wherever tobacco products are sold at each

cash register, each tobacco and/or electronic nicotine delivery systems vending machine, or any

other place from which tobacco products are sold. The signs shall be electronically available in

both English and Spanish online at the department of behavioral healthcare, developmental

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disabilities and hospitals' website.

     11-9-13.8. Prohibitions applicable to license holders and their employees and agents.

-- A person that holds a license issued under chapter 20 of title 44 and/or § 23-1-56, or an

employee or agent of that person, is prohibited from selling, distributing or delivering a tobacco

and/or electronic nicotine delivery system product:

      (1) To any individual that is under eighteen (18) years of age; or

      (2) In any form other than an original factory-wrapped package; or

      (3) As a single cigarette sale (section 44-20-31), or as a sale of cigarettes by the

individual piece, known as "loosies."

     11-9-13.10. Prohibition on the distribution of free tobacco products. -- The

distribution of free tobacco products and electronic nicotine delivery systems or coupons or

vouchers redeemable for free tobacco or electronic nicotine delivery system products to any

person under eighteen (18) years of age shall be prohibited. Further, the distribution of free

tobacco products or electronic nicotine delivery systems or coupons or vouchers redeemable for

free tobacco or electronic nicotine delivery system products shall be prohibited, regardless of the

age of the person to whom the products, coupons, or vouchers are distributed, within five hundred

(500) feet of any school. The attorney general shall bring an action for any violation of this

section. Every separate free tobacco product or electronic nicotine delivery system or coupon or

voucher redeemable for a free tobacco or electronic nicotine delivery system product in violation

of this section shall constitute a separate offense subject to a fine of five hundred dollars ($500).

The penalty shall be assessed against the business or individual responsible for initiating the

Rhode Island distribution of the free tobacco products or electronic nicotine delivery systems or

coupons or vouchers redeemable for free tobacco products or electronic nicotine delivery

systems.

     11-9-13.13. Nature and size of penalties. -- (a) Any person or individual that violates a

requirement of section 11-9-13.6(2), display of specific signage, shall be subject to a fine in court

of not less than thirty-five dollars ($35.00) nor more than five hundred dollars ($500) per civil

violation.

      (b) The license holder is responsible for all violations of this section that occur at the

location for which the license is issued. Any license holder that violates the prohibition of section

11-9-13.8(1) and/or (2) shall be subject to civil fines as follows:

      (1) A fine of two hundred fifty dollars ($250) for the first violation within any thirty-six

(36) month period;

      (2) A fine of five hundred dollars ($500) for the second violation within any thirty-six

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(36) month period;

      (3) A fine of one thousand dollars ($1,000) and a fourteen (14) day suspension of the

license to sell tobacco products or electronic nicotine delivery systems for the third violation

within any thirty-six (36) month period;

      (4) A fine of one thousand five hundred dollars ($1,500) and a ninety (90) day

suspension of the license to sell tobacco products or electronic nicotine delivery systems for each

violation in excess of three (3).

      (c) Any person that violates a prohibition of section 11-9-13.8(3), sale of single

cigarettes; section 11-9-13.8(2), regarding factory-wrapped packs; shall be subject to a penalty of

five hundred dollars ($500) for each violation.

      (d) The department of taxation and/or the department of health shall not issue a license to

any individual, business, firm, association, or corporation the license of which has been revoked

or suspended, to any corporation an officer of which has had his or her license revoked or

suspended, or to any individual who is or has been an officer of a corporation the license of which

has been revoked or suspended so long as such revocations or suspensions are in effect.

      (e) The court shall suspend the imposition of a license suspension of the license secured

from the Rhode Island tax administrator for violation of subdivisions (b)(3) and (b)(4) of this

section if the court finds that the license holder has taken measures to prevent the sale of tobacco

and/or electronic nicotine delivery systems to minors and the license holder can demonstrate to

the court that those measures have been taken and that employees have received training. No

person shall sell tobacco products and/or electronic nicotine delivery system products, at retail,

without first being trained in the legal sale of tobacco and/or electronic nicotine delivery system

products. Training shall teach employees what constitutes a tobacco and/or electronic nicotine

delivery system product, legal age of purchase, acceptable identification, how to refuse a direct

sale to a minor or secondary sale to an adult, and all applicable laws on tobacco sales and

distribution. Dealers shall maintain records indicating that the provisions of this section were

reviewed with all employees who conduct or will conduct tobacco and/or electronic nicotine

delivery systems sales. Each employee who sells or will sell tobacco and/or electronic nicotine

delivery system products shall sign an acknowledgement form attesting that the provisions of this

section were reviewed with him/her. Each form shall be maintained by the retailer for as long as

the employee is so employed and for no less than one year after termination of employment. The

measures to prevent the sale of tobacco and/or electronic nicotine delivery systems to minors

shall be defined by the department of mental health, retardation and hospitals behavioral

healthcare, developmental disabilities and hospitals in rules and regulations.

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     11-9-14. Use of tobacco by minors. -- No person under eighteen (18) years of age shall

smoke or chew use or possess when such possession is clearly visible tobacco and/or electronic

nicotine delivery system in any public street, place or resort, any tobacco and/or electronic

nicotine delivery system in any form whatsoever. Any person under eighteen (18) years of age

violating the provisions of this section shall be required to perform up to thirty (30) hours of

community service or shall be required to enter into a tobacco treatment program approved by

any local substance abuse prevention task force, at the option of a minor charged with a violation

of this section.

     SECTION 2. Chapter 23-1 of the General Laws entitled "Department of Health" is

hereby amended by adding thereto the following sections:

     23-1-55. Electronic nicotine delivery system distributor, and dealer licenses required

-- Definitions. – (a) Definitions. – Whenever used in §§ 23-1-56 to 23-1-58, unless the context

requires otherwise:

     (1) "Dealer" means any person whether located within or outside of this state who sells or

distributes electronic nicotine delivery system products to a consumer in this state;

     (2) "Distributor" means any person:

     (i) Whether located within or outside of this state, other than a dealer, who sells or

distributes electronic nicotine delivery system products within or into this state. Such term shall

not include any electronic nicotine delivery system products manufacturer, export warehouse

proprietor, or importer with a valid permit, if such person sells or distributes electronic nicotine

delivery system products in this state only to licensed distributors, or to an export warehouse

proprietor or another manufacturer with a valid permit;

     (ii) Selling electronic nicotine delivery system products directly to consumers in this state

by means of at least twenty-five (25) electronic nicotine delivery system product vending

machines;

     (iii) Engaged in this state in the business of manufacturing electronic nicotine delivery

system products or any person engaged in the business of selling electronic nicotine delivery

system products to dealers, or to other persons, for the purpose of resale only; provided that

seventy-five percent (75%) of all electronic nicotine delivery system products sold by that person

in this state are sold to dealers or other persons for resale and selling electronic nicotine delivery

system products directly to at least forty (40) dealers or other persons for resale; or

     (iv) Maintaining one or more regular places of business in this state for that purpose;

provided, that seventy-five percent (75%) of the sold electronic nicotine delivery system products

are purchased directly from the manufacturer and selling electronic nicotine delivery system

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products directly to at least forty (40) dealers or other persons for resale;

     (3) "Electronic nicotine delivery system" means the products as defined in § 11-9-

13.4(15).

     23-1-56. License. – (a) Each person engaging in the business of selling electronic

nicotine delivery system products in the state, including any distributor or dealer, shall secure a

license annually from the department before engaging in that business, or continuing to engage in

it. A separate application and license is required for each place of business operated by a

distributor or dealer. If the applicant for a license does not have a place of business in this state,

the license shall be issued for such applicant's principal place of business, wherever located. A

licensee shall notify the department within thirty (30) days in the event that it changes its

principal place of business. A separate license is required for each class of business if the

applicant is engaged in more than one of the activities required to be licensed by this section. No

person shall maintain or operate or cause to be operated a vending machine for electronic nicotine

delivery systems without procuring a dealer’s license for each machine.

     (b) The director shall have authority to set a reasonable fee not to exceed twenty five

dollars ($25.00) for the issuance of the license.

     (c) Each issued license shall be prominently displayed on the premises, if any, covered by

the license.

     (d) The director shall create and maintain a website setting forth the identity of all

licensed persons under this section, itemized by type of license possessed, and shall update the

site no less frequently than six (6) times per year.

     (e) A manufacturer or importer may sell or distribute electronic nicotine delivery systems

to a person located or doing business within the state, only if such person is a licensed distributor.

An importer may obtain electronic nicotine delivery systems only from a licensed manufacturer.

A distributor may sell or distribute electronic nicotine delivery systems to a person located or

doing business within this state, only if such person is a licensed distributor or dealer. A

distributor may obtain electronic nicotine delivery systems only from a licensed manufacturer,

importer, or distributor. A dealer may obtain electronic nicotine delivery systems only from a

licensed distributor.

     (f)(1) No license under this chapter may be granted, maintained or renewed if the

applicant, or any combination of persons owning directly or indirectly any interests in the

applicant:

     (i) Is delinquent in any tax filings for one month or more; or

     (ii) Had a license under this chapter revoked within the past two (2) years.

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     (2) No person shall apply for a new license or renewal of a license and no license shall be

issued or renewed for any person, unless all outstanding fines, fees or other charges relating to

any license held by that person have been paid.

     (3) No license shall be issued relating to a business at any specific location until all prior

licenses relating to that location have been officially terminated and all fines, fees or charges

relating to the prior licenses have been paid or otherwise resolved or if the director has found that

the person applying for the new license is not acting as an agent for the prior licensee who is

subject to any such related fines, fees or charges that are still due. Evidence of such agency status

includes, but is not limited to, a direct familial relationship and/or unemployment, contractual or

other formal financial or business relationship with the prior licensee.

     (4) No person shall apply for a new license pertaining to a specific location in order to

evade payment of any fines, fees or other charges relating to a prior license for that location.

     (5) No new license shall be issued for a business at a specific location for which a license

has already issued unless there is a bona fide, good faith change in ownership of the business at

that location.

     (6) No license or permit shall be issued, renewed or maintained for any person, including

the owners of the business being licensed that has been convicted of violating any criminal law

relating to tobacco products and/or electronic nicotine delivery system products, the payment of

taxes or fraud or has been ordered to pay civil fines of more than twenty-five thousand dollars

($25,000) for violations of any civil law relating to tobacco products and/or electronic nicotine

delivery system products, the payment of taxes or fraud.

     23-1-57. Penalties for unlicensed business. -- Any distributor or dealer who sells, offers

for sale, or possesses with intent to sell, electronic nicotine delivery system products, without a

license as provided in § 23-1-56, shall be fined in accordance with the provisions of and the

penalties contained in § 23-1-58.

     23-1-58. Penalty for operating without a dealer license. – (a) Any individual or

business who violates this chapter by selling or conveying an electronic nicotine delivery system

product without a retail license shall be cited for that violation and shall be required to appear in

district court for a hearing on the citation.

     (b) Any individual or business cited for a violation hereunder shall:

     (1) Either post a five hundred dollar ($500) bond with the district court within ten (10)

days of the citation; or

     (2) Sign and accept the citation indicating a promise to appear in court.

     (c) An individual or business who has accepted the citation may:

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     (1) Pay the five hundred dollar ($500) fine, either by mail or in person, within ten (10)

days after receiving the citation; or

     (2) If that individual or business has posted a bond, forfeit the bond by not appearing at

the scheduled hearing. If the individual or business cited pays the five hundred dollar ($500) fine

or forfeits the bond, that individual or business is deemed to have admitted the cited violation and

to have waived the right to a hearing on the issue of commission on the violation.

     (d) The court, after a hearing on a citation, shall make a determination as to whether a

violation has been committed. If it is established that the violation did occur, the court shall

impose a five hundred dollar ($500) fine, in addition to any court costs or fees.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL OFFENSES - ELECTRONIC NICOTINE DELIVERY SYSTEMS

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     This act would prohibit the sale of electronic nicotine delivery systems to persons under

eighteen (18), and would require a business selling, dealing or distributing an electronic nicotine

delivery system to obtain a license from the department of health.

     This act would take effect upon passage.

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