0001| AN ACT | 0002| RELATING TO PUBLIC HEALTH; ENACTING THE TOBACCO PREVENTION AND MINORS | 0003| ACT; REPEALING THE TOBACCO PRODUCTS ACT; REPEALING AND ENACTING | 0004| SECTIONS OF THE NMSA 1978; PROVIDING PENALTIES. | 0005| | 0006| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0007| Section 1. SHORT TITLE.--This act may be cited as the "Tobacco | 0008| Prevention and Minors Act". | 0009| Section 2. FINDINGS.--The legislature finds that: | 0010| A. approximately four hundred fifty thousand Americans, | 0011| including nearly two thousand two hundred New Mexicans, die each year | 0012| of diseases caused by cigarette smoking, according to the American | 0013| cancer society; | 0014| B. the United States surgeon general has determined that | 0015| smoking is the leading cause of preventable death in the United | 0016| States; | 0017| C. nicotine in tobacco was found in a 1988 report of the | 0018| United States surgeon general to be a powerfully addictive drug. | 0019| Forty percent of all teenagers who smoke daily have made at least one | 0020| serious but unsuccessful attempt to quit, according to the United | 0021| States surgeon general. It is important, therefore, to prevent young | 0022| people from using nicotine until they are mature and capable of making | 0023| an informed and rational decision about its use and dangers; | 0024| D. every day more than three thousand minors begin smoking; | 0025| of those, approximately one thousand will eventually die of tobacco- | 0001| related illnesses, according to the United States department of health | 0002| and human services; | 0003| E. an estimated two hundred fifty-five million packs of | 0004| cigarettes are sold illegally to minors every year in the United | 0005| States, according to the American journal of public health; and | 0006| F. fifty-eight percent of youths from the ages of twelve to | 0007| seventeen years buy their own cigarettes, according to a 1992 report | 0008| by the centers for disease control and prevention. | 0009| Section 3. DEFINITIONS.--As used in the Tobacco Prevention and | 0010| Minors Act: | 0011| A. "minor" means an individual who is less than eighteen | 0012| years of age; | 0013| B. "person" means an individual or other legal entity; | 0014| C. "place of business" means each location at which tobacco | 0015| products are sold, including vending machines; | 0016| D. "tobacco product" means any substance that contains | 0017| tobacco, including cigarettes, cigars, pipe tobacco, snuff, smoking | 0018| tobacco or smokeless tobacco; and | 0019| E. "unit" means the tobacco use prevention unit in the | 0020| department of health. | 0021| Section 4. TOBACCO USE PREVENTION UNIT--DUTIES.-- | 0022| A. The "tobacco use prevention unit" is created in the | 0023| attorney general's office. The unit shall be headed by a director. | 0024| B. The unit shall: | 0025| (1) issue licenses for the sale of tobacco products; | 0001| (2) provide to persons licensed to sell tobacco | 0002| products signs that meet the requirements specified in Section 6 of | 0003| the Tobacco Prevention and Minors Act; | 0004| (3) investigate, concurrently with local officials, | 0005| violations of the Tobacco Prevention and Minors Act; | 0006| (4) impose civil fines under the Tobacco Prevention | 0007| and Minors Act; | 0008| (5) bring license suspension, revocation and | 0009| nonrenewal actions under the Tobacco Prevention and Minors Act; and | 0010| (6) take such other action as it deems necessary or | 0011| appropriate to administer and enforce the provisions of the Tobacco | 0012| Prevention and Minors Act. | 0013| Section 5. LICENSES.-- | 0014| A. A license for the sale of tobacco products shall be | 0015| issued to a person for a specific place of business and shall be valid | 0016| for a period not to exceed six years. A license is not assignable and | 0017| is valid only for the person in whose name it is issued and for the | 0018| specific place of business or vending machine designated on the | 0019| license. | 0020| B. There is no fee for a license. It shall be available | 0021| upon request from the unit, provided that the unit finds the requester | 0022| has not previously violated provisions of the Tobacco Prevention and | 0023| Minors Act or any other relevant law. A license holder may be made | 0024| subject to reasonable terms and conditions the unit may impose. | 0025| Section 6. SIGNS CONCERNING SALES TO MINORS AND FALSE EVIDENCE | 0001| OF AGE AND IDENTITY.-- | 0002| A. The unit shall provide to each person licensed to sell | 0003| tobacco products the following two signs: | 0004| (1) one sign that contains in red lettering at least | 0005| one inch high on a white background a notice stating: "IT IS A | 0006| VIOLATION OF THE LAW FOR CIGARETTES OR OTHER TOBACCO PRODUCTS TO BE | 0007| SOLD OR DISTRIBUTED TO ANY PERSON UNDER THE AGE OF 18." and that | 0008| includes on the sign a depiction of a pack of cigarettes and a can of | 0009| smokeless tobacco at least two inches high defaced by a red diagonal | 0010| diameter line through a surrounding red circle; and | 0011| (2) another sign that contains in red lettering at | 0012| least one inch high on a white background a notice stating: "IT IS A | 0013| VIOLATION OF THE LAW FOR A PERSON UNDER THE AGE OF 18 TO PRESENT ANY | 0014| FALSE EVIDENCE OF AGE OR IDENTITY FOR THE PURPOSE OF OBTAINING TOBACCO | 0015| PRODUCTS.". | 0016| B. There shall be no fee to obtain the signs described in | 0017| Subsection A of this section, and at least one copy of each sign shall | 0018| be provided by the unit to every person that holds a license for the | 0019| sale of tobacco products. | 0020| Section 7. DISPLAY OF LICENSE AND SIGNS.--A person that holds a | 0021| license for the sale of tobacco products shall at all times publicly | 0022| display in at least one conspicuous location at the specific place of | 0023| business designated on the license: | 0024| A. the license or a copy of the license that authorizes the | 0025| sale of tobacco products at the specific place of business or on the | 0001| vending machine for which the license is issued; and | 0002| B. the signs that meet the requirements of Section 6 of the | 0003| Tobacco Prevention and Minors Act. | 0004| Section 8. PROHIBITIONS ON SALES APPLICABLE TO TOBACCO LICENSE | 0005| HOLDERS AND THEIR EMPLOYEES AND AGENTS--VENDING MACHINES.-- | 0006| A. A person that holds a license for the sale of tobacco | 0007| products, or an employee or agent of that person, may not sell or | 0008| distribute a tobacco product: | 0009| (1) to a minor; | 0010| (2) other than at the specific place of business for | 0011| which a license has been issued for the sale of tobacco products; or | 0012| (3) in any form other than an original factory- | 0013| wrapped package of at least twenty cigarettes. | 0014| B. Tobacco products may be sold by vending machines in the | 0015| following locations only: | 0016| (1) in locations not open to the public, including | 0017| controlled areas within factories, businesses and offices; or | 0018| (2) in age-controlled public locations where minors | 0019| are not permitted unless accompanied by a parent or guardian, | 0020| including locations where alcoholic beverages are offered for sale for | 0021| the purpose of consumption on the premises. | 0022| Section 9. PROHIBITION ON UNLICENSED SALE OR DISTRIBUTION OF | 0023| TOBACCO PRODUCTS.--No person, other than a person who holds a license | 0024| for the sale of tobacco products, or an employee or agent of that | 0025| person, may sell, distribute or provide free samples of a tobacco | 0001| product; provided, however, that nothing in this section applies to | 0002| distribution by a person to family members on private property that is | 0003| not open to the public. | 0004| Section 10. DOCUMENTARY EVIDENCE OF AGE AND IDENTITY.--Evidence | 0005| of the age and identity of the person seeking to purchase a tobacco | 0006| product may be shown by any document that contains a photograph of the | 0007| person issued by a federal, state, county or municipal government, | 0008| including a motor vehicle driver's license or an identification card | 0009| issued to a member of the armed forces. | 0010| Section 11. REFUSAL TO SELL TOBACCO PRODUCTS TO A PERSON UNABLE | 0011| TO PRODUCE AN IDENTITY CARD.--Any person authorized to sell tobacco | 0012| products at retail or wholesale shall refuse to sell tobacco products | 0013| to any person who reasonably appears to be less than twenty-seven | 0014| years of age and who is unable to produce an identity card with proper | 0015| documentary evidence establishing that he is eighteen years of age or | 0016| over. | 0017| Section 12. PRESENTING FALSE EVIDENCE OF AGE OR IDENTITY-- | 0018| PENALTIES FOR MINORS.-- | 0019| A. No minor shall present any false written, printed or | 0020| photostatic evidence of age or identity for the purpose of procuring | 0021| or attempting to procure any tobacco products. | 0022| B. Any minor who violates the provisions of this section | 0023| shall be punished by: | 0024| (1) a civil fine not to exceed one hundred dollars | 0025| ($100); | 0001| (2) having to perform twenty-four hours of community | 0002| service; or | 0003| (3) being required to complete a smoking cessation | 0004| class. | 0005| C. Any minor who violates the provisions of this section | 0006| for a second or subsequent time shall be punished by a combination of | 0007| at least two of the three penalty options provided in Subsection B of | 0008| this section. | 0009| Section 13. CIVIL FINES ON LICENSEES--GROUNDS FOR SUSPENSION, | 0010| REVOCATION AND NONRENEWAL OF LICENSES.-- | 0011| A. Any license holder for a specific place of business that | 0012| violates a requirement of Section 7 of the Tobacco Prevention and | 0013| Minors Act shall be subject to a civil fine of not more than one | 0014| hundred dollars ($100). Any license holder that violates that section | 0015| for a second or subsequent time shall be subject to a civil fine of | 0016| not more than five hundred dollars ($500). | 0017| B. Any license holder for a specific place of business, or | 0018| any of its employees or agents that violates a provision in Section 8 | 0019| of the Tobacco Prevention and Minors Act shall each be subject to a | 0020| civil fine of: | 0021| (1) one hundred dollars ($100) for the first | 0022| violation; | 0023| (2) two hundred fifty dollars ($250) for the second | 0024| violation within any two-year period; | 0025| (3) five hundred dollars ($500) for the third | 0001| violation within any two-year period; | 0002| (4) one thousand dollars ($1,000) for the fourth | 0003| violation within any two-year period; and | 0004| (5) five thousand dollars ($5,000) for any additional | 0005| violation within any two-year period. | 0006| C. In addition to the civil fines provided in Subsection B | 0007| of this section, if a person that holds a license for the sale of | 0008| tobacco products for a specific place of business violates a provision | 0009| of Section 8 of the Tobacco Prevention and Minors Act, the license: | 0010| (1) may be suspended for a period not to exceed | 0011| twenty-four hours upon a first violation of that section; | 0012| (2) may be suspended for a period not to exceed two | 0013| consecutive days upon a second violation of that section within any | 0014| two-year period; | 0015| (3) may be suspended for a period not to exceed one | 0016| week upon a third violation of that section within any two-year | 0017| period; | 0018| (4) shall be suspended for a period not to exceed one | 0019| month upon a fourth violation of that section within any two-year | 0020| period; and | 0021| (5) shall be revoked by the director of the unit and | 0022| not renewed by the director upon a fifth conviction of that section | 0023| within any two-year period. | 0024| D. With regard to the sanctions in Subsection C of this | 0025| section, the hearing officer may consider the following as mitigating | 0001| factors prior to imposing a license suspension or revocation: | 0002| (1) the license holder informed each of its employees | 0003| and agents in writing of the applicable laws regarding sales of | 0004| tobacco products to any person under the age of eighteen; | 0005| (2) the license holder engaged in a consistent | 0006| practice of requiring employees and agents to refuse to sell tobacco | 0007| products to any person who appears to be less than twenty-seven years | 0008| of age and who is unable to produce an identity card as evidence that | 0009| he is eighteen years of age or over; and | 0010| (3) the license holder has established and imposed | 0011| sanctions against employees and agents for noncompliance with the | 0012| license holder's written policies and actual practices regarding the | 0013| sale of tobacco products. | 0014| E. Any person that violates a provision of Section 9 of the | 0015| Tobacco Prevention and Minors Act shall be subject to a civil fine of | 0016| one thousand dollars ($1,000). Any person that violates that section | 0017| for a second or subsequent time shall be subject to a civil fine of | 0018| five thousand dollars ($5,000). | 0019| F. A violation committed by an employee or agent, and | 0020| attributed to a license holder, shall be counted only once for | 0021| purposes of the preceding subsections. | 0022| Section 14. ENFORCEMENT--HEARING OFFICER--LIMITATIONS-- WAIVER-- | 0023| COSTS--PUBLIC HEARING--RECORD--RIGHT TO APPEAL.-- | 0024| A. The unit shall, after written notice by certified mail | 0025| and hearing, impose the sanctions set forth in Section 13 of the | 0001| Tobacco Prevention and Minors Act. | 0002| B. If the license holder, employee or agent does not mail a | 0003| request for a hearing within thirty days, the hearing officer shall | 0004| take the action contemplated in the notice, and the action shall be | 0005| final and not subject to judicial review. | 0006| C. All hearings that include telephonic hearings, held | 0007| pursuant to the Tobacco Prevention and Minors Act, shall be conducted | 0008| by a hearing officer designated by the secretary of health. | 0009| D. No action shall be initiated by the unit later than one | 0010| year after the discovery of the conduct that is the basis for the | 0011| action. | 0012| E. The charged license holder, employee or agent shall bear | 0013| all costs of the hearing unless excused by the hearing officer from | 0014| paying all or part of the costs, or unless the charged license holder, | 0015| employee or agent prevails at the hearing. | 0016| F. All hearings under the Tobacco Prevention and Minors Act | 0017| shall be open to the public. | 0018| G. In all hearings conducted under the Tobacco Prevention | 0019| and Minors Act, a complete record shall be made of all evidence | 0020| received during the course of the hearing. The record shall be | 0021| preserved by any stenographic method in use in the district courts of | 0022| New Mexico or, in the discretion of the hearing officer, by tape | 0023| recording. | 0024| H. Any person entitled to a hearing under the Tobacco | 0025| Prevention and Minors Act who is aggrieved by an adverse decision | 0001| issued after the hearing by the hearing officer may obtain a review of | 0002| the decision in the district court of Santa Fe county. In order to | 0003| obtain the review, the aggrieved person shall, within twenty days | 0004| after the date of service of the decision, file with the court a | 0005| notice of appeal, a copy of which shall be served on the director of | 0006| the unit, stating all exceptions taken to the decision. The court | 0007| shall not consider any exceptions not stated in the petition. | 0008| I. Failure to file a notice of appeal in the manner and | 0009| within the time provided in Subsection H of this section shall operate | 0010| as a waiver of the right to judicial review and shall result in the | 0011| decision of the hearing officer becoming final. However, for good | 0012| cause shown within the time stated, the judge of the district court | 0013| may issue an order granting one extension of time not to exceed sixty | 0014| days. | 0015| J. Within thirty days after service of the copy of the | 0016| notice of appeal, the hearing officer shall prepare, certify and file | 0017| with the clerk of the district court of Santa Fe county the record of | 0018| the case. That shall include a copy of the notice of hearing, a | 0019| complete transcript or tape recording of the testimony taken at the | 0020| hearing, copies of all pertinent documents and other written evidence | 0021| introduced at the hearing, a copy of the hearing officer's decision | 0022| and a copy of the notice of appeal. For good cause shown within the | 0023| time stated, the judge of the district court may issue an order | 0024| granting one extension of time not to exceed sixty days. | 0025| K. The court may affirm the decision, reverse the decision | 0001| or remand the case for further proceedings. | 0002| Section 15. PREEMPTION.--When a municipality or county adopts an | 0003| ordinance or a regulation pertaining to sales of tobacco products, the | 0004| ordinance or regulation shall be consistent with the provision of the | 0005| Tobacco Prevention and Minors Act. | 0006| Section 16. REPEAL.--Sections 30-49-1 through 30-49-12 NMSA 1978 | 0007| (being Laws 1993, Chapters 244, Sections 1 through 12) are repealed. | 0008| Section 17. SEVERABILITY.--If any part or application of the | 0009| Tobacco Prevention and Minors Act is held invalid, the remainder or | 0010| its application to other situations or persons shall not be affected. | 0011| Section 18. EFFECTIVE DATE.--The effective date of the | 0012| provisions of this act is July 1, 1998. |