Senate Bill S3380

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3380

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 17, 2009
                               ___________

Introduced by Sen. AUBERTINE -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

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. FOR
PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE  THE  FOLLOWING
MEANINGS:
  (A)  "AUDIO  EFFECTS"  MEANS  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 THAN 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.
  (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" MEANS (I) A LIGHTER THAT HAS  AUDIO  EFFECTS  OR
VISUAL  EFFECTS, OR THAT HAS OTHER FEATURES OF A TYPE THAT WOULD REASON-
ABLY BE EXPECTED TO MAKE THE LIGHTER APPEALING OR ATTRACTIVE TO A  CHILD
OF  TWELVE YEARS OF AGE OR YOUNGER. NOVELTY LIGHTER INCLUDES, BUT IS NOT
LIMITED TO, THE FOLLOWING LIGHTERS THAT RESEMBLE OR IMITATE:
  (A) CARTOON CHARACTERS, FIGURINES OR ACTION FIGURES;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09700-01-9
              

S. 3380                             2

  (B) TOYS OR GAME PIECES;
  (C) MUSICAL INSTRUMENTS;
  (D) VEHICLES;
  (E) ANIMALS;
  (F) HUMAN BODY PARTS;
  (G) FOOD, BEVERAGES OR FOOD OR BEVERAGE PACKAGES;
  (H) WEAPONRY;
  (I) FURNITURE;
  (J) SPORTS EQUIPMENT;
  (K) HOLIDAY DECORATIONS;
  (L) TOOLS;
  (M) HOUSEHOLD AND OFFICE PRODUCTS; OR
  (N) COSMETICS OR PERSONAL CARE PRODUCTS.
  (II) "NOVELTY LIGHTER" 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.
  (G)  "VISUAL  EFFECT"  INCLUDES  (I)  FLASHING  LIGHTS, COLOR-CHANGING
LIGHTS AND CHANGING IMAGES; AND (II) LOGOS, DECALS,  DECORATIVE  ARTWORK
OR  HEAT-SHRINKABLE  SLEEVES DEPICTING ITEMS THAT ARE OF A TYPE MARKETED
PREDOMINANTLY TO CHILDREN TWELVE YEARS OF AGE OR YOUNGER.
  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
OR HER DESIGNEE.
  5.  ANY  PERSON  WHO VIOLATES THIS SECTION SHALL BE SUBJECT TO A CIVIL
PENALTY AS FOLLOWS:
  (A) TEN THOUSAND DOLLARS IF THE PERSON IS A MANUFACTER OR IMPORTER  OF
LIGHTERS.
  (B)  ONE THOUSAND DOLLARS IF THE PERSON IS A WHOLESALER OF LIGHTERS OR
DISTRIBUTES LIGHTERS  BY  MEANS  OTHER  THAN  DISTRIBUTION  DIRECTLY  TO
CONSUMERS.
  (C) 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.

S. 3380                             3

  (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 PROVIDED A 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.
  7. THE STATE FIRE ADMINISTRATOR IS AUTHORIZED TO PROMULGATE SUCH REGU-
LATIONS AS ARE DEEMED NECESSARY TO  IMPLEMENT  THE  PROVISIONS  OF  THIS
SECTION.
  8. 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 CONTIN-
UANCE 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  RESTITU-
TION.  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; provided, however, that
notwithstanding the effective date of  this  act,  no  person  shall  be
subject  to  a  civil  penalty  for any violation that occurs before the
thirty-first day after enactment.