10-8-41.6.  Regulation of retail tobacco specialty business.

(1)  As used in this section:

Terms Used In Utah Code 10-8-41.6

  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Municipality: means :
(a) a city of the first class, city of the second class, city of the third class, city of the fourth class, city of the fifth class;
(b) a town, as classified in Section 10-2-301; or
(c) a metro township as that term is defined in Section 10-2a-403 unless the term is used in the context of authorizing, governing, or otherwise regulating the provision of municipal services. See Utah Code 10-1-104
  • Person: means an individual, corporation, partnership, organization, association, trust, governmental agency, or any other legal entity. See Utah Code 10-1-104
  • Property: includes both real and personal property. See Utah Code 48-2e-1156
  • State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 48-2e-1156
  • United States: includes each state, district, and territory of the United States of America. See Utah Code 48-2e-1156
  • (a)  “Community location” means:

    (i)  a public or private kindergarten, elementary, middle, junior high, or high school;

    (ii)  a licensed child-care facility or preschool;

    (iii)  a trade or technical school;

    (iv)  a church;

    (v)  a public library;

    (vi)  a public playground;

    (vii)  a public park;

    (viii)  a youth center or other space used primarily for youth oriented activities;

    (ix)  a public recreational facility;

    (x)  a public arcade; or

    (xi)  for a new license issued on or after July 1, 2018, a homeless shelter.

    (b)  “Department” means the Department of Health, created in Section 26-1-4.

    (c)  “Local health department” means the same as that term is defined in Section 26A-1-102.

    (d)  “Permittee” means a person licensed under this section to conduct business as a retail tobacco specialty business.

    (e)  “Retail tobacco specialty business” means a commercial establishment in which:

    (i)  the sale of tobacco products accounts for more than 35% of the total quarterly gross receipts for the establishment;

    (ii)  20% or more of the public retail floor space is allocated to the offer, display, or storage of tobacco products;

    (iii)  20% or more of the total shelf space is allocated to the offer, display, or storage of tobacco products; or

    (iv)  the retail space features a self-service display for tobacco products.

    (f)  “Self-service display” means the same as that term is defined in Section 76-10-105.1.

    (g)  “Tobacco product” means:

    (i)  any cigar, cigarette, or electronic cigarette, as those terms are defined in Section 76-10-101;

    (ii)  a tobacco product, as that term is defined in Section 59-14-102, including:

    (A)  chewing tobacco; or

    (B)  any substitute for a tobacco product, including flavoring or additives to tobacco; and

    (iii)  tobacco paraphernalia, as that term is defined in Section 76-10-104.1.

    (2)  The regulation of a retail tobacco specialty business is an exercise of the police powers of the state, and through delegation, to other governmental entities.

    (3) 

    (a)  A person may not operate a retail tobacco specialty business in a municipality unless the person obtains a license from the municipality in which the retail tobacco specialty business is located.

    (b)  A municipality may only issue a retail tobacco specialty business license to a person if the person complies with the provisions of Subsections (4) and (5).

    (4) 

    (a)  Except as provided in Subsection (7), a municipality may not issue a license for a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty business is located within:

    (i)  1,000 feet of a community location;

    (ii)  600 feet of another retail tobacco specialty business; or

    (iii)  600 feet from property used or zoned for:

    (A)  agriculture use; or

    (B)  residential use.

    (b)  For purposes of Subsection (4)(a), the proximity requirements shall be measured in a straight line from the nearest entrance of the retail tobacco specialty business to the nearest property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard to intervening structures or zoning districts.

    (5) 

    (a)  Except as provided in Subsection (5)(b), beginning July 1, 2018, a municipality may not issue or renew a license for a person to conduct business as a retail tobacco specialty business until the person provides the municipality with proof that the retail tobacco specialty business has:

    (i)  a valid permit for a retail tobacco specialty business issued under Title 26, Chapter 62, Tobacco Retail Permit, by the local health department having jurisdiction over the area in which the retail tobacco specialty business is located; and

    (ii)  a valid license to sell tobacco products from the State Tax Commission.

    (b)  A person that was licensed to conduct business as a retail tobacco specialty business in a municipality before July 1, 2018, shall obtain a permit from a local health department under Title 26, Chapter 62, Tobacco Retail Permit, on or before January 1, 2019.

    (6) 

    (a)  Nothing in this section:

    (i)  requires a municipality to issue a retail tobacco specialty business license; or

    (ii)  prohibits a municipality from adopting more restrictive requirements on a person seeking a license or renewal of a license to conduct business as a retail tobacco specialty business.

    (b)  A municipality may suspend or revoke a retail tobacco specialty business license issued under this section:

    (i)  if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;

    (ii)  if a licensee violates the regulations restricting the sale and distribution of cigarettes and smokeless tobacco to protect children and adolescents issued by the United States Food and Drug Administration, 21 C.F.R. Part 1140;

    (iii)  upon the recommendation of the department or a local health department under Title 26, Chapter 62, Tobacco Retail Permit; or

    (iv)  under any other provision of state law or local ordinance.

    (7) 

    (a)  In accordance with Subsection (7)(b), a retail tobacco specialty business that has a business license and is operating in a municipality in accordance with all applicable laws except for the requirement in Subsection (4), on or before December 31, 2015, is exempt from Subsection (4).

    (b)  A retail tobacco specialty business may maintain an exemption under Subsection (7)(a) if:

    (i)  the retail tobacco specialty business license is renewed continuously without lapse or permanent revocation;

    (ii)  the retail tobacco specialty business does not close for business or otherwise suspend the sale of tobacco products for more than 60 consecutive days;

    (iii)  the retail tobacco specialty business does not substantially change the business premises or business operation; and

    (iv)  the retail tobacco specialty business maintains the right to operate under the terms of other applicable laws, including:

    (A)  Title 26, Chapter 38, Utah Indoor Clean Air Act;

    (B)  zoning ordinances;

    (C)  building codes; and

    (D)  the requirements of a retail tobacco specialty business license issued before December 31, 2015.

    Amended by Chapter 231, 2018 General Session