S T A T E O F N E W Y O R K
________________________________________________________________________
6875--B
2009-2010 Regular Sessions
I N A S S E M B L Y
March 13, 2009
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Introduced by M. of A. FIELDS, PHEFFER, GABRYSZAK, DINOWITZ, HOOPER,
GALEF, COOK, GORDON, MAISEL, CARROZZA, CHRISTENSEN, TOBACCO, BURLING,
ERRIGO -- Multi-Sponsored by -- M. of A. BROOK-KRASNY, CALHOUN,
DUPREY, MAGEE, McENENY, ROBINSON, RUSSELL, WEISENBERG -- read once and
referred to the Committee on Economic Development, Job Creation,
Commerce and Industry -- reference changed to the Committee on Consum-
er Affairs and Protection -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee --
again reported from said committee with amendments, ordered reprinted
as amended and recommitted to said committee
AN ACT to amend the general business law, in relation to prohibiting the
retail sale and distribution of novelty lighters
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general business law is amended by adding a new section
391-q to read as follows:
S 391-Q. SALE AND DISTRIBUTION OF NOVELTY LIGHTERS PROHIBITED. 1.
DEFINITIONS:
(A) "AUDIO EFFECTS" INCLUDES MUSIC, ANIMAL SOUNDS, WHISTLES, BUZZERS,
BEEPERS OR OTHER NOISES NOT TYPICALLY CAUSED BY OR PERTINENT TO THE
FLAME-PRODUCING FUNCTION OF THE LIGHTER.
(B) "DISTRIBUTE" MEANS TO:
(I) DELIVER TO A PERSON OTHER THEN THE PURCHASER, FOR RETAIL SALE; OR
(II) PROVIDE AS PART OF A COMMERCIAL PROMOTION OR AS A PRIZE OR PREMI-
UM.
(C) "IMPORTER" MEANS A PERSON WHO CAUSES A LIGHTER TO ENTER THIS STATE
FROM A MANUFACTURING, WHOLESALE, DISTRIBUTION OR RETAIL SALES POINT
OUTSIDE THIS STATE, FOR THE PURPOSE OF SELLING OR DISTRIBUTING THE
LIGHTER WITHIN THIS STATE OR WITH THE RESULT THAT THE LIGHTER IS SOLD OR
DISTRIBUTED WITHIN THIS STATE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09700-03-9
A. 6875--B 2
(D) "LIGHTER" MEANS A MECHANICAL OR ELECTRICAL DEVICE OF A TYPE TYPI-
CALLY USED FOR IGNITING TOBACCO PRODUCTS BY USE OF A FLAME.
(E) "NOVELTY LIGHTER":
(I) MEANS A MECHANICAL OR ELECTRICAL DEVICE TYPICALLY USED FOR LIGHT-
ING CIGARETTES, CIGARS OR PIPES THAT IS DESIGNED TO APPEAR TO BE A TOY,
OR DESIGNED TO RESEMBLE A CARTOON CHARACTER, GUN, WATCH, MUSICAL INSTRU-
MENT, VEHICLE, ANIMAL, FOOD OR BEVERAGE OR FEATURE A FLASHING LIGHT OR
CREATE AUDIO EFFECTS; AND
(II) DOES NOT INCLUDE:
(A) A LIGHTER MANUFACTURED BEFORE JANUARY FIRST, NINETEEN HUNDRED
EIGHTY; OR
(B) A LIGHTER THAT HAS BEEN RENDERED PERMANENTLY INCAPABLE OF PRODUC-
ING A FLAME OR OTHERWISE CAUSING COMBUSTION; OR
(C) ANY MECHANICAL OR ELECTRICAL DEVICE PRIMARILY USED TO IGNITE FUEL
FOR FIREPLACES OR FOR CHARCOAL OR GAS GRILLS.
(F) "SELL" MEANS TO PROVIDE OR PROMISE TO PROVIDE TO A WHOLESALE,
RETAIL, MAIL-ORDER OR OTHER PURCHASER IN EXCHANGE FOR CONSIDERATION.
2. NO PERSON, FIRM, PARTNERSHIP, ASSOCIATION OR CORPORATION SHALL
DISTRIBUTE, SELL AT RETAIL OR OFFER FOR RETAIL SALE IN THIS STATE, OR TO
ANY PERSON LOCATED IN THIS STATE, A NOVELTY LIGHTER.
3. THE STATE FIRE ADMINISTRATOR SHALL ESTABLISH AND PUBLICIZE A TOLL
FREE TELEPHONE HOTLINE NUMBER TO RECEIVE INFORMATION FROM THE PUBLIC
ABOUT SUSPECTED VIOLATIONS OF THIS SECTION. THE STATE FIRE ADMINISTRATOR
SHALL PROVIDE INFORMATION ON ITS AGENCY WEBSITE REGARDING THIS SECTION
AND THE DANGERS OF NOVELTY LIGHTERS, AND PROVIDE THE OPPORTUNITY FOR
PERSONS SUSPECTING VIOLATIONS OF THIS SECTION TO TRANSMIT SUCH INFORMA-
TION TO THE OFFICE OF FIRE PREVENTION AND CONTROL THROUGH THE INTERNET.
4. WHENEVER ANY POLICE OFFICER DESIGNATED IN SECTION 1.20 OF THE CRIM-
INAL PROCEDURE LAW OR A PEACE OFFICER DESIGNATED IN SUBDIVISION FOUR AND
SUBDIVISION SEVENTY-NINE PERTAINING TO THE DEPARTMENT OF STATE'S OFFICE
OF FIRE PREVENTION AND CONTROL, OF SECTION 2.10 OF SUCH LAW, ACTING
PURSUANT TO HIS OR HER SPECIAL DUTIES, SHALL DISCOVER A NOVELTY LIGHTER
IN VIOLATION OF THIS SECTION, SUCH OFFICER IS HEREBY AUTHORIZED AND
EMPOWERED FORTHWITH TO SEIZE AND TAKE POSSESSION OF SUCH ITEMS. SUCH
SEIZED ITEMS SHALL BE TURNED OVER TO THE STATE FIRE ADMINISTRATOR OR HIS
DESIGNEE.
5. ANY PERSON WHO VIOLATES THIS SECTION SHALL BE SUBJECT TO A CIVIL
PENALTY AS FOLLOWS:
(A) NOT MORE THAN TEN THOUSAND DOLLARS IF THE PERSON IS A MANUFACTURER
OR IMPORTER OF LIGHTERS.
(B) NOT MORE THAN ONE THOUSAND DOLLARS IF THE PERSON IS A WHOLESALER
OF LIGHTERS OR DISTRIBUTES LIGHTERS BY MEANS OTHER THAN DISTRIBUTION
DIRECTLY TO CONSUMERS.
(C) NOT MORE THAN FIVE HUNDRED DOLLARS IF THE PERSON IS:
(I) A RETAIL SELLER OF LIGHTERS; OR
(II) A PERSON DISTRIBUTING LIGHTERS, IF THE PERSON IS OTHER THAN A
MANUFACTURER, IMPORTER OR WHOLESALER.
(D) POSSESSION OF EACH NOVELTY LIGHTER IN VIOLATION OF THIS SECTION
SHALL CONSTITUTE A SEPARATE VIOLATION. IF A PERSON CONTINUES TO VIOLATE
THIS SECTION AFTER BEING GIVEN WRITTEN NOTICE OF THE VIOLATION, EACH DAY
THAT THE VIOLATION CONTINUES IS A SEPARATE OFFENSE SUBJECT TO A CIVIL
PENALTY.
6. THIS SECTION SHALL NOT APPLY TO A MANUFACTURER, IMPORTER, DISTRIBU-
TOR OR WHOLESALE SELLER WHO CAN DEMONSTRATE THAT THE NOVELTY LIGHTERS
ARE NOT INTENDED FOR SALE WITHIN THE STATE.
A. 6875--B 3
7. THE STATE FIRE ADMINISTRATOR IS HEREBY AUTHORIZED TO PROMULGATE
SUCH RULES AND REGULATIONS AS ARE DEEMED NECESSARY TO IMPLEMENT THE
PROVISIONS OF THIS SECTION, INCLUDING PRESCRIBING MINIMUM STANDARDS FOR
ADMINISTRATION AND ENFORCEMENT OF THIS SECTION. THE STATE FIRE ADMINIS-
TRATOR MAY ASSESS MONETARY PENALTIES AS ESTABLISHED HEREIN, SUCH PENAL-
TIES COMMENCING ON THE FIRST DAY FOLLOWING THE ABATEMENT DATE SPECIFIED
IN AN ORDER, AND CONTINUING UNTIL THE VIOLATION HAS BEEN ABATED. ABATE-
MENT OF VIOLATIONS SHALL BE VERIFIED BY THE STATE FIRE ADMINISTRATOR.
8. IN ADDITION TO THE ENFORCEMENT AUTHORITY GRANTED TO THE STATE FIRE
ADMINISTRATOR IN THIS SECTION, WHENEVER THERE SHALL BE A VIOLATION OF
THIS SECTION, AN APPLICATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE
NAME OF THE PEOPLE OF THE STATE OF NEW YORK, TO A COURT OR JUSTICE
HAVING JURISDICTION BY A SPECIAL PROCEEDING TO ISSUE AN INJUNCTION, AND
UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS, TO ENJOIN AND
RESTRAIN THE CONTINUANCE OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO
THE SATISFACTION OF THE COURT OR JUSTICE THAT THE DEFENDANT HAS, IN
FACT, VIOLATED THIS SECTION, AN INJUNCTION MAY BE ISSUED BY THE COURT OR
JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER VIOLATIONS, WITHOUT
REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED
THEREBY. IN ANY SUCH PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE
ATTORNEY GENERAL AS PROVIDED IN PARAGRAPH SIX OF SUBDIVISION (A) OF
SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES,
AND DIRECT RESTITUTION. WHENEVER THE COURT SHALL DETERMINE THAT A
VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL
PENALTY AS SET FORTH IN SUBDIVISION FIVE OF THIS SECTION. IN CONNECTION
WITH ANY SUCH PROPOSED APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED
TO TAKE PROOF AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO
ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
S 2. This act shall take effect immediately. Notwithstanding such
effective date, no person shall be subject to a civil penalty for any
violation that occurs before the ninetieth day after such effective
date.