2019 -- S 0729

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LC002101

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO BUSINESSES AND PROFESSIONS -- LOCAL TOBACCO CONTROL ACT

     Introduced By: Senators Crowley, Sheehan, Nesselbush, Quezada, and Metts

     Date Introduced: March 21, 2019

     Referred To: Senate Housing & Municipal Government

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 5 of the General Laws entitled "BUSINESSES AND PROFESSIONS"

is hereby amended by adding thereto the following chapter:

CHAPTER 89

LOCAL TOBACCO CONTROL ACT

     5-89-1. Short title.

     This chapter shall be known and may be cited as the "Local Tobacco Control Act".

     5-89-2. Definitions.

     As used in this chapter:

     (1) "Applicant" means any person who has applied for permission to engage in any act or

activity that is regulated pursuant to the provisions of this chapter.

     (2) "License" means any license required by this chapter.

     (3) "License fee" means any monies required by law to be paid for the issuance or

renewal of any license required by this chapter.

     (4) "Local licensing authority" means the town councils or license boards of the several

towns, the mayor and city council or license bureau of a city.

     (5) "Person" means any natural person, partnership, firm, joint stock company,

corporation, or employee thereof, or other legal entity.

     (6) "Sale" means any transfer of goods for money, trade, barter, or other consideration.

     (7) "Tobacco product" means any product containing tobacco or nicotine, and related

devices, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco,

dipping tobacco, bidis, snus, dissolvable tobacco products, electronic nicotine-delivery systems as

defined in § 11-9-13.9 and any liquids for use in electronic nicotine-delivery systems; provided,

however, that such term shall not include any product that has been approved by the United States

Food and Drug Administration, pursuant to its authority over drugs.

     5-89-3. Applicant license qualifications.

     In order to be eligible for a license, an applicant must:

     (1) Be a citizen of the United States or a resident alien;

     (2) Not have been convicted, in any jurisdiction, of violating state or federal tobacco

control laws;

     (3) Not have been declared by any court of competent jurisdiction incompetent by reason

of mental defect or disease unless the court has subsequently determined that his or her

competency has been restored;

     (4) Comply with any other requirements set by local ordinance.

     (5) Submit a complete application, by the terms of the local licensing authority's

ordinance, including a license fee.

     5-89-4. Investigation and action on application.

     After an examination of the application's contents, receipt of a license fee, and any further

inquiry and investigation that is deemed proper and necessary as to the good character,

competency, and integrity of the applicant and the persons named in the application, the local

licensing authority shall, as soon as practicable, issue a license in a form prescribed by it to the

applicant or notify the applicant of a denial of the license application. Persons shall file

applications with the local licensing authority where his or her business is located.

     5-89-5. Grounds for denial of application for license or renewal of license.

     The local licensing authority shall deny the application for or renewal of license if it finds

that the applicant:

     (1) Has violated any provision of chapter 9 of title 11, this chapter, or rules and local

ordinances promulgated consistent with this chapter;

     (2) Committed any act that would disqualify the applicant under § 5-89-8 or the applicant

has failed to meet the qualifications in § 5-89-3;

     (3) Practices fraud, deceit, or misrepresentation;

     (4) Makes a material misstatement in the application for issuance or renewal of a license;

or

     (5) Demonstrates incompetence or untrustworthiness in actions affecting the conduct of

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the business, required to be licensed under this chapter.

     5-89-6. Procedure for approval or denial of application - Hearings.

     The local licensing authority, in approving or denying an application for a license or

renewal of a license, shall proceed as follows:

     (1) If the application is approved, the local licensing authority shall issue a license in the

form provided in this chapter and local ordinances promulgated consistent with this chapter;

     (2) If the application is denied, the local licensing authority shall notify the applicant or

licensee, in writing, of the denial and state the reasons for its action;

     (3) Within fifteen (15) days from the receipt of notice, the applicant or licensee may

request a hearing in writing;

     (4) If a request for a hearing is received in a timely manner, the local licensing authority

shall set a date for a hearing and notify the parties of the time and place of the hearing;

     (5) All hearings shall be held in accordance with the provisions of chapter 35 of title 42.

     5-89-7. Renewal of licenses.

     Each license shall expire one year after its date of issuance. Subject to the power of the

local licensing authority to deny, revoke, or suspend a license, and set any additional

requirements on licensees by ordinance, any license shall be renewable by the local licensing

authority for the next one-year period upon proper application for renewal including payment of

license fees. An application for renewal of a license must be received by the local licensing

authority on a form provided by the authority not less than thirty (30) days prior to the expiration

date of the license, and the authority shall notify the licensee of its intent to refuse to renew the

license as soon as practicable. The licensee may, within fifteen (15) days after receipt of the

notice of intent to refuse to renew a license, request a hearing on the refusal in the manner

prescribed by this chapter. A licensee is permitted to continue to engage in business while its

renewal application is pending. Upon renewal of any license the local licensing authority shall

issue a renewed license.

     5-89-8. Grounds for suspension and revocation of licenses.

     (a) A license may be suspended or revoked if the licensee:

     (1) Violates any provisions of federal tobacco control law, chapter 9 of title11, or other

Rhode Island tobacco control law, including this chapter, and any rules and local ordinances

promulgated consistent with this chapter;

     (2) Practices fraud, deceit or misrepresentation;

     (3) Makes a material misstatement in the application for or renewal of the license;

     (b) While pursuing an appeal at the local licensing authority, or if the licensee does not

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seek a hearing, the licensee shall immediately cease to conduct business subject to licensing for

the time period provided in the order of suspension or permanently in the case of revocation and

shall post a notification, visible to customers and containing lettering a minimum of three-eighths

inch (3/8") high, that it is not licensed to sell or distribute tobacco products.

     5-89-9. Change in status of licensee.

     The licensee shall notify the local licensing authority, in writing, within five (5) days of

any material change in the information previously furnished or required to be furnished to the

local licensing authority or any occurrence that could reasonably be expected to affect the

licensee's privilege to a license under this chapter or local ordinances promulgated consistent with

this chapter.

     5-89-10. Prohibited activities.

     It is unlawful for any person to knowingly commit any of the following:

     (1) Sell any tobacco product to a person in Rhode Island or provide any service under this

chapter to a Rhode Island person without possessing a valid license:

     (2) Employ any individual to sell any tobacco product or provide any service or required

to be licensed under this chapter without possessing a valid license;

     (3) Sell or furnish any tobacco product to any person under the age of eighteen (18), or a

higher age set by local ordinance for sales of tobacco products; or

     (4) Violate federal tobacco control law, the prohibitions of chapter 9 of title 11, or other

Rhode Island tobacco control law including any applicable local ordinance adopted consistent

with this chapter or prohibitions on sales contained in this chapter.

     5-89-11. Licensee business procedures.

     Any licensee shall, after notice from the local licensing authority, discontinue any

advertising or the use of any advertisement, which in the opinion of the local licensing authority

tends to mislead the public. Misleading advertising includes advertising or displaying tobacco

products while the licensee's license to sell such products is suspended. Failure to comply with

such order of the local licensing authority shall be cause for revocation of the license.

     5-89-12. Judicial review.

     (a) Any person aggrieved by a final decision or order of the local licensing authority

made after a hearing or rehearing whether or not a petition for a hearing was filed, may obtain

judicial review of the decision by appeal to the superior court in accordance with chapter 35 of

title 42.

     (b) Filing of an appeal does not stay enforcement of the decision or order of the local

licensing authority unless the stay is obtained from the court upon application in accordance with

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the rules of court or from the local licensing authority upon any terms and conditions that it

deems proper.

     5-89-13. Engaging in business without a license - Penalties.

     Any person who, without a license, engages in the general business of tobacco retailer or

holds himself or herself out as a tobacco retailer, shall be punished by a fine of not less than two

hundred dollars ($200) nor more than five thousand dollars ($5000), or imprisonment in the adult

correctional institutions not exceeding six (6) months, or by both fine and imprisonment.

     5-89-14. License fees and fines not a tax.

     (a) License fees shall be set to cover all costs of administration and enforcement of this

chapter by the local licensing authority. Such fees are due upon application, and license fees are

only refundable at the discretion of a local licensing authority, even in the case of denial of the

application. Such fees are not a tax.

     (b) Local licensing authorities shall have the power to set fines appropriately to protect

public health and encourage licensed retailer compliance with Rhode Island tobacco control law

including this chapter and ordinances consistent with this chapter. Such fines are not a tax.

     5-89-15. Severability.

     If any provision of this chapter or the application of it to any person or circumstance is

held invalid, that invalidity shall not affect other provisions or applications of this chapter, which

can be given effect without the invalid provision or application, and to this end the provisions of

this chapter are declared to be severable.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO BUSINESSES AND PROFESSIONS -- LOCAL TOBACCO CONTROL ACT

***

     This act would create a comprehensive resolution scheme for cities and towns to follow

concerning the sale and control of tobacco in their communities.

     This act would take effect upon passage.

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