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SB-491 Cigarette and Tobacco Products Licensing Act of 2003.(2021-2022)

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Date Published: 07/07/2021 09:00 PM
SB491:v96#DOCUMENT

Amended  IN  Assembly  July 07, 2021
Amended  IN  Senate  April 05, 2021
Amended  IN  Senate  March 09, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 491


Introduced by Senator Nielsen

February 17, 2021


An act to amend Sections 22973.1 and 22980.3 of the Business and Professions Code, and to amend Sections 381d and 381e of the Penal Code, relating to nitrous oxide.


LEGISLATIVE COUNSEL'S DIGEST


SB 491, as amended, Nielsen. Cigarette and Tobacco Products Licensing Act of 2003.
Existing law makes it a misdemeanor for a person to dispense or distribute nitrous oxide to a person if the distributor knows or should know that the person is going to use the nitrous oxide for certain unlawful purposes and that person proximately causes great bodily injury or death to that person or another person. Existing law also requires a person who dispenses or distributes nitrous oxide to record each transaction involving the dispensing or distribution of nitrous oxide in a written or electronic document, as specified.
This bill would require a court to order the suspension, for up to one year, of the business license of a person who knowingly violates either of those provisions after having been previously convicted of a violation of the same provision, except as specified. specified, and would authorize the prosecuting entity to notify the California Department of Tax and Fee Administration of convictions for violations of those provisions.
Existing law, the Cigarette and Tobacco Products Licensing Act of 2003, requires the California Department of Tax and Fee Administration to issue a license to a retailer to engage in the sale of cigarettes or tobacco products upon receipt of a completed application and payment of certain fees unless any of certain exceptions apply, including that the retailer, or if the retailer is not an individual, any person controlling the retailer, has been convicted of certain felonies related to evading taxes on cigarette and tobacco products. The act also subjects a license issued under the act to revocation or suspension for violations of the act and the Revenue and Taxation Code, as specified.
This bill would additionally except from the requirement that the board issue a license a retailer that has been convicted of certain crimes relating to the distribution of nitrous oxide, including those described above. The bill would require the department to provide a licensee with at least 10 days’ written notice of a pending suspension or revocation and an opportunity to appeal the suspension or revocation only to correct a mistake or clerical error, as specified. The bill would also additionally subject a license issued under the act to revocation or suspension for commission of those crimes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 22973.1 of the Business and Professions Code is amended to read:

22973.1.
 (a) The board shall issue a license to a retailer upon receipt of a completed application and payment of the fees prescribed in Section 22973, unless any of the following apply:
(1) The retailer, or if the retailer is not an individual, any person controlling the retailer, has previously been issued a license that is suspended or revoked by the board for violation of any of the provisions of this division.
(2) The application is for a license or renewal of a license for a retail location that is the same retail location as that of a retailer whose license was revoked or is subject to revocation proceedings for violation of any of the provisions of this division, unless:
(A) It has been more than five years since a previous license for the retail location was revoked.
(B) The person applying for the license provides the board with documentation demonstrating that the applicant has acquired or is acquiring the premises or business in an arm’s length transaction. For purposes of this section, an “arm’s length transaction” is defined as a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this division that occurred at the retail location, is presumed not to be made at “arm’s length.”
(3) The retailer, or if the retailer is not an individual, any person controlling the retailer, has been convicted of a felony pursuant to Section 30473 or 30480 of the Revenue and Taxation Code.
(4) The retailer does not possess all required permits or licenses required under the Revenue and Taxation Code.
(5) The retailer has been convicted of violating Section 381c, 381d, or 381e of the Penal Code.
(b) (1) Any retailer who is denied a license may petition for a redetermination of the board’s denial of the license within 30 days after service upon that retailer of the notice of the denial of the license. If a petition for redetermination is not filed within the 30-day period, the determination of denial becomes final at the expiration of the 30-day period.
(2) Every petition for redetermination shall be in writing and shall state the specific grounds upon which the petition is founded. The petition may be amended to state additional grounds at anytime prior to the date on which the board issues its order or decision upon the petition for redetermination.
(3) If the petition for redetermination is filed within the 30-day period, the board shall reconsider the determination of the denial and, if the retailer has so requested in the petition, shall grant the retailer an oral hearing and shall give the retailer at least 10 days’ notice of the time and place of the hearing. The board may continue the hearing from time to time as may be necessary.
(4) The order or decision of the board upon a petition for redetermination becomes final 30 days after mailing of notice thereof.

SEC. 2.

 Section 22980.3 of the Business and Professions Code is amended to read:

22980.3.
 (a) Licenses issued pursuant to this division shall be subject to suspension or revocation for violations of this division, the Penal Code, or the Revenue and Taxation Code, as provided in this section.
(1) In addition to any applicable fines or penalties for a violation, upon first conviction of a violation, a licensee shall receive a written notice from the board detailing the suspension and revocation provisions of this division. At its discretion, the board may also suspend a license for up to 30 days.
(2) In addition to any applicable fines or penalties for a violation, upon a second conviction of a violation within four years of a previous violation, the license shall be revoked.
(b) The date of the occurrence of a violation shall be used to calculate the duration between subsequent violations. A violation shall be noted in the license record at the board only after judicial conviction or final adjudication of a violation.
(c) Upon updating a record for a violation triggering a suspension, the board shall serve the licensee with a notice of suspension and shall order the licensee to cease the sale, gifting, or displaying for sale of cigarettes or tobacco products for the period of the suspension. The notice of suspension shall inform the licensee of the effective dates of the suspension.
(d) Continued sales or gifting of cigarettes or tobacco products after the effective date of the suspension shall constitute a violation of this division and result in the revocation of a license.
(e) Upon completion of a suspension period, a license shall be reinstated by the board upon certification that all outstanding debts of that retailer or wholesaler that are owed to a wholesaler or distributor for the purchase of cigarettes and tobacco products are paid.
(f) Upon updating a record for a violation triggering a revocation, the board shall serve the licensee with a notice of revocation and shall order the licensee to cease the sale, gifting, or displaying for sale of cigarettes or tobacco products on and after the effective date of the revocation. The notice of revocation shall inform the licensee of the effective date of the revocation.
(g) After a revocation, a previously licensed applicant may apply for a new license after six months. The board may, at its discretion, issue a new license.
(h) Upon updating a license record for a violation, suspension, or revocation to a license of a person or entity that owns or controls more than one location, the board shall send notice in writing of the violations, suspensions, or revocations within 15 days of the board’s action to the address included in the application and listed on the license for receipt of correspondence or notices from the board.
(i) Upon suspension or revocation of a license pursuant to this section, the board shall notify all licensed distributors and wholesalers by electronic mail within 48 hours of the suspension or revocation of that license. All licensed distributors and wholesalers shall provide the board and shall update, as necessary, an electronic mail address that the board can use for purposes of making the notifications required by this subdivision.
(j) Violations by a licensee at one location may not be accumulated against other locations of that same licensee. Violations accumulated against a prior owner at a licensed location may not be accumulated against a new owner at the same licensed location.
(k) For purposes of this section, a violation includes violations of the Revenue and Taxation Code relating to cigarettes and tobacco products, violations of Section 381c, 381d, or 381e of the Penal Code, and violations of this division. Only one violation per discrete action shall be counted toward a suspension or revocation of a license.
(l) (1) The department shall provide a licensee with at least 10 days’ written notice of a pending suspension or revocation pursuant to this section and an opportunity to appeal the suspension or revocation only to correct a mistake or clerical error.
(2) The department shall not accept or consider an appeal of suspension or revocation under this section if the appeal is founded upon the grounds of whether the retailer, or any employee or agent of the retailer, violated Section 381c, 381d, or 381e of the Penal Code.
(3) This subdivision does not prevent the department from modifying its action on its own to correct a mistake or clerical error.

SEC. 3.

 Section 381d of the Penal Code is amended to read:

381d.
 (a) A person who dispenses or distributes nitrous oxide to a person, and knows or should know that the person is going to use the nitrous oxide in violation of Section 381b, and that person proximately causes great bodily injury or death to that person or another person, is guilty of a misdemeanor, and shall be punished by imprisonment in a county jail, not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.
(b) (1) Except as provided in paragraph (2), the court shall order the suspension, for up to one year, of the business license of a person who knowingly violates this section after having been previously convicted of a violation of this section.
(2) This subdivision does not apply if the owner of the business license provides evidence that the owner or the owner’s employees have made a good faith effort to prevent violations of this section.
(c) This section shall not preclude prosecution under any other law.
(d) The prosecuting agency may notify the California Department of Tax and Fee Administration of any conviction for violation of this section.

SEC. 4.

 Section 381e of the Penal Code is amended to read:

381e.
 (a) A person who dispenses or distributes nitrous oxide shall record each transaction involving the dispensing or distribution of nitrous oxide in a written or electronic document. The person dispensing or distributing the nitrous oxide shall require the purchaser to sign the document and provide a complete residential address and present a valid government-issued photo identification. The person dispensing or distributing the nitrous oxide shall sign and date the document and shall retain the document at the person’s business address for one year from the date of the transaction. The person shall make the documents available during normal business hours for inspection and copying, upon presentation of a duly authorized search warrant, by officers or employees of the California State Board of Pharmacy or of other law enforcement agencies of this state or the United States.
(b) The document used to record each transaction shall inform the purchaser of all of the following:
(1) That inhalation of nitrous oxide outside of a clinical setting may have dangerous health effects.
(2) That it is a violation of state law to possess nitrous oxide or any substance containing nitrous oxide, with the intent to breathe, inhale, or ingest it for the purpose of intoxication.
(3) That it is a violation of state law to knowingly distribute or dispense nitrous oxide or any substance containing nitrous oxide, to a person who intends to breathe, inhale, or ingest it for the purpose of intoxication.
(c) This section shall not apply to any person who administers nitrous oxide for the purpose of providing medical or dental care, if administered by a medical or dental practitioner licensed by this state or at the direction or under the supervision of a practitioner licensed by this state.
(d) This section does not apply to the sale of nitrous oxide contained in food products for use as a propellant.
(e) This section shall not apply to the sale or distribution of nitrous oxide by a wholesaler licensed by the California State Board of Pharmacy or manufacturer classified under Code Number 325120 or 424690 of the North American Industry Classification System (NAICS).
(f) (1) Information obtained from a person to whom nitrous oxide was distributed or dispensed pursuant to this section shall be confidential and shall be used solely for the purposes provided in this section.
(2)  Except as provided in this section, a person who dispenses or distributes nitrous oxide shall not use, review, or disclose any information obtained pursuant to this section.
(3) A person who violates this subdivision shall be guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.
(g) (1) Except as provided in paragraph (2), the court shall order the suspension, for up to one year, of the business license of a person who knowingly violates this section after having been previously convicted of a violation of this section.
(2) This subdivision does not apply if the owner of the business license provides evidence that the owner or the owner’s employees have made a good faith effort to prevent violations of this section.