ARIZONA STATE SENATE
Fifty-Fifth Legislature, First Regular Session
e-liquids; tobacco products; vapor products
Purpose
Establishes licensure for the sale of tobacco products, vapor products, alternative nicotine products or e-liquids (tobacco, vapor or nicotine products) and prescribes licensure requirements, penalties and adjudication procedures. Modifies criminal penalties relating to underage tobacco possession and sales and expands the Smoke-Free Arizona Act prohibition to include vapor products and e-liquids. Contains requirements for enactment for initiatives and referendums (Proposition 105).
Background
In 2019, the Federal Food, Drug and Cosmetic Act was amended to raise the federal minimum age for the sale of tobacco products from 18 years old to 21 years old (legal age) (Further Consolidated Appropriations Act, 2020). Statute deems a person to be guilty of a petty offense if the person: 1) knowingly sells, gives or furnishes a tobacco product, vapor product or any instrument or paraphernalia designed for smoking or ingesting tobacco to a person who is under 18 years old (minor); and 2) is a minor who buys, possesses or knowingly receives a tobacco product, vapor product or any instrument or paraphernalia designed for smoking or ingesting tobacco. A minor who misrepresents their age to induce any person to sell, give or furnish a tobacco product, vapor product or any instrument or paraphernalia designed for smoking or ingesting of tobacco is guilty of a petty offense and must pay a fine up to $500 (A.R.S. 13-3622).
In 2006, Arizona voters passed the Smoke-Free Arizona Act to establish smoking restrictions. The Act prohibits smoking in all public places and places of employment, with outlined exceptions. A person who smokes where smoking is prohibited is guilty of a petty offense (A.R.S. 36-601.01).
The
DLLC regulates the production, distribution and sale of alcoholic beverages
through the State Liquor Board (Board) and the Office of the DLLC Director. The
Board: 1) grants and denies liquor license applications; 2) adopts
rules; and 3) hears appeals and holds hearings relating to liquor
regulation. The duties of the Director of the DLLC (Director) include: 1)
adopting rules to establish licensure requirements; 2) responding to
a law enforcement agency investigative reports relating to violations of liquor
regulations; 3) coordinating with law enforcement agencies to enforce
Arizona law against the consumption of spirituous liquor by underage persons;
and
4) establishing an investigation unit. The Director may suspend, revoke or
refuse to renew a liquor license for outlined violations and impose a civil
penalty between $200 and $3,000 (A.R.S. Title 4).
S.B. 1496 requires two-thirds of license fees to be deposited in the Liquor Licenses Fund. Any Liquor Licenses Fund monies that exceed the legislative appropriation to DLLC are deposited in state General Fund. If the collection of licensure fees results in a change in revenues, there may be a fiscal impact to the state General Fund associated with this legislation.
Provisions
Smoke-Free Arizona Act (Proposition 105)
1. Subjects the use of vapor products and e-liquids to the prohibition against smoking in all public places and places of employment, except as outlined.
2. Exempts, from the prohibition on smoking or use of vapor products and e-liquids, a retail vapor product and e-liquid store that is physically separated.
Arizona Criminal Code
3. Conforms the minimum legal age for the sale of tobacco, vapor or nicotine products to the federal minimum age of sale for tobacco products.
4. Subjects, to a maximum fine of $500, a person who sells, gives or furnishes tobacco, vapor or nicotine products to an underage person.
5. Allows a court, in addition to any other penalty, to suspend for 180 days the privilege to drive or the nonoperating ID license of an underaged person who violates the prohibition on misrepresentation of age by use of ID with intent to induce a person to sell, give or furnish tobacco, vapor or nicotine products.
6. Expands, to apply to tobacco products or alternative nicotine products, the nonapplicability of criminal penalties relating to a person's religious use of outlined products.
Tobacco, Vapor or Nicotine Product Licensure
7. Prohibits a person from selling tobacco, vapor or nicotine products without a license.
8. Requires a person desiring a license to sell tobacco, vapor or nicotine products (license) to apply on a form furnished by the Director.
9. Deems a license to be valid for two years and stipulates that a license authorizes the licensee to sell tobacco, vapor or nicotine products only at the location provided on the license.
10. Requires all applications for a new license to be filed with and determined by the Director.
11. Requires the DLLC to issue a license only after the applicant satisfactorily shows its qualifications.
12. Requires a person license applicant to file a copy of the application with the Director and:
a) with the city or town clerk for a license within a city or town; and
b) with the county clerk for a license in an unincorporated area of a county.
13. Authorizes the Director to charge, in an amount determined by the Director:
a) initial or renewal of license application fees to be paid at the application filing; and
b) a penalty fee for a licensee that fails to renew a license by the expiration date.
14. Deems a license renewal to be filed and received by the DLLC on the date shown by a postmark of U.S. Postal Service official mark, if the license renewal is deposited, properly addressed and placed in an official depository by the license expiration date.
15. Considers, as timely, a renewal for a license that expires on a Saturday, Sunday or legal holiday if received by the DLLC on the next business day.
16. Prohibits, from selling tobacco, vapor or nicotine products, a licensee who fails to renew the license by the expiration date and terminates a license that is not renewed within 60 days after the expiration date.
17. Allows the Director, if the licensee shows good cause, to waive a late penalty and renew a terminated license.
18. Allows the DLLC to issue licenses with staggered renewal dates.
19. Stipulates that one half of an annual license fee must be charged if a license is issued less than six months before the scheduled renewal date as a result of a staggered renewal system.
20. Allows all licensing functions to be conducted electronically.
State Preemption
21. Preempts any city, town or county adopted or modified rule, regulation, code or ordinance regulating the sale or marketing of tobacco, vapor or nicotine products in conflict with or more restrictive than state law.
22. Prohibits a city, town or county from limiting any right granted by the license and this legislation.
23. Allows a city, town or county to adopt and enforce lawful zoning requirements limiting retail tobacco store or retail vapor product and e-liquid stores.
24. Allows a city, town or county to limit location from being not closer than _______ from:
a) a public or private school providing primary or secondary education;
b) a fenced playground adjacent to a school or public park, homeless shelter, youth community or recreation center, or place of worship; or
c) another retail-oriented tobacco store or vapor store.
25. Allows a city, town or county to restrict billboards within ____ of school buildings and fenced school recreation areas.
26. Excludes from the establishments a city, town or county may restrict, a retail store that is larger than 10,000 square feet or that devotes less than 10 percent of its retail space to tobacco or vapor products and accessories.
27. Allows a business already operating to continue to operate as a retail tobacco store or retail vapor product and e-liquid store.
28. Specifies that a city, town, county, school district, charter school, community college district, stadium district, or the Arizona Board of Regents may regulate the sale, marketing or use of tobacco, vapor or nicotine products on owned, leased or operated property.
Age Verification
29. Prohibits a retailer from selling, furnishing or giving tobacco, vapor or nicotine products to a person who reasonably appears to be under 27 years old without following age verification procedures.
30. Requires a licensee, licensee's employee or any other person who questions that a person ordering, purchasing or otherwise procuring the serving or delivery of tobacco, vapor or nicotine products to:
a) demand and examine identification (ID) to determine that the ID appears to be valid and unaltered;
b) examine the ID photograph to determine that the person reasonably appears to be the same person in the ID; and
c) determine that the date of birth in the ID indicates the person is not under the legal age.
31. Prescribes the following to be the only acceptable forms of ID for age verification:
a) an unexpired Arizona driver license, except for a license that is issued to a person who is under 21 years old if it is 30 days after the person reaches 21 years;
b) an unexpired driver license issued by any other state, the district of Columbia, any U.S. territory or Canada that includes a person's picture and date of birth;
c) an unexpired Arizona nonoperating ID license, except for a nonoperating license that is issued to a person who is under 21 years old if it is 30 days after the person reaches 21 years;
d) a form of ID issued by any other state, the district of Columbia, any U.S. territory or Canada that is substantially equivalent to an Arizona nonoperating license and includes a person's picture and date of birth;
e) an unexpired armed forces ID card that includes the person's picture and date of birth; and
f) a valid, unexpired passport or resident alien card that contains a person's photograph and date of birth.
32. Deems a licensee or licensee's employee to not have violated age verification requirements if the licensee or employee follows the age verification procedures and:
a) records and retains a record of the ID on the particular visit; or
b) uses a biometric identity verification device to verify a person is not under the legal age.
33. Prescribes the following acceptable forms for recording a person's ID:
a) a writing containing the ID type, date of issuance, the name and date of birth on the ID and the person's signature;
b) an electronic file or printed document produced by a device that reads a person's age from the ID;
c) a dated and signed photocopy of the ID; and
d) a photograph or digital copy of the ID.
34. Specifies the ID record or biometric identity verification defense applies to licensee and employee actions after the outlined age verification procedure is performed during the particular visit to the licensed premises.
35. Specifies that a licensee or employee is not required to demand and examine the ID of a person if the licensee or employee previously performed the age verification procedure.
36. Presumes that a licensee or employee who has not recorded and retained a record of an ID:
a) did not follow any of the age verification procedures; and
b) for the purposes of State Liquor Board (Board) hearings on a license, knows the person attempting to purchase tobacco, vapor or nicotine products is under the legal tobacco and vapor use age.
37. Provides an affirmative defense, to a criminal charge relating to sales to a person who is under the legal age, if there is proof that the licensee or employee followed the entire age verification procedure but did not retain a record.
38. Provides a defense, to a violation of the age verification requirements, if the person procuring or attempting to procure tobacco, vapor or nicotine products is not under the legal age.
Grounds for License Suspension, Revocation or Refusal to Renew
39. Authorizes the Director, after notice and a hearing, to suspend, revoke or refuse to renew any license to sell tobacco, vapor or nicotine products if:
a) a person buys for resale, sells or deals in tobacco, vapor or nicotine products in Arizona without first procuring a license;
b) a person sells or deals in tobacco, vapor or nicotine products without complying with statutory requirements;
c) a licensee or other person sells, furnishes, disposes of or gives tobacco, vapor or nicotine products to an underage person;
d) a person employs a person under 18 years old to sell or dispose of tobacco, vapor or nicotine products, with a specified exception;
e) a licensee or employee knowingly allows a person on the premises to furnish tobacco, vapor or nicotine products to an underage person;
f) a licensee or employee k