S T A T E O F N E W Y O R K
________________________________________________________________________
1981--A
2011-2012 Regular Sessions
I N A S S E M B L Y
January 12, 2011
___________
Introduced by M. of A. PHEFFER, DESTITO, GABRYSZAK, DINOWITZ, HOOPER,
GALEF, COOK, MAISEL, TOBACCO, BURLING, LIFTON, JAFFEE, MARKEY,
P. RIVERA, KELLNER -- Multi-Sponsored by -- M. of A. BOYLE,
BROOK-KRASNY, CALHOUN, DUPREY, MAGEE, MAYERSOHN, 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 Consumer Affairs and Protection -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted 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-r to read as follows:
S 391-R. 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 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06212-02-1
A. 1981--A 2
(E) "NOVELTY LIGHTER":
(I) MEANS A MECHANICAL OR ELECTRICAL DEVICE MANUFACTURED FOR THE
PURPOSE OF PRODUCING A FLAME TO LIGHT CIGARETTES, CIGARS OR PIPES AND
WHICH, DUE TO THE PHYSICAL OR AUDIO FEATURES OF THE DEVICE, EXCLUDING
ITS CAPABILITY OF PRODUCING A FLAME, WOULD REASONABLY BE EXPECTED TO
CAUSE THE LIGHTER TO BE APPEALING OR ATTRACTIVE TO A CHILD UNDER THE AGE
OF TEN INCLUDING, BUT NOT LIMITED TO, LIGHTERS THAT RESEMBLE A CARTOON
CHARACTER, TOY, GUN, WATCH, MUSICAL INSTRUMENT, VEHICLE, ANIMAL, BEVER-
AGE, SPORTING EQUIPMENT OR THAT IS CAPABLE OF PLAYING MUSICAL NOTES OR
DISPLAYING FLASHING LIGHTS; 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; OR
(D) A DISPOSABLE OR REFILLABLE LIGHTER WITH A LOGO, LABEL, DECAL OR
ARTWORK PRINTED THEREON OR ON HEAT SHRINKABLE SLEEVES ATTACHED THERETO
BUT WHICH DOES NOT OTHERWISE RESEMBLE A LIGHTER DESCRIBED IN SUBPARA-
GRAPH (I) OF THIS PARAGRAPH.
(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 DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES SHALL
ESTABLISH AND PUBLICIZE A TOLL FREE TELEPHONE HOTLINE NUMBER TO RECEIVE
INFORMATION FROM THE PUBLIC ABOUT SUSPECTED VIOLATIONS OF THIS SECTION.
THE DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES 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 INFORMATION TO THE DIVISION
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 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
A. 1981--A 3
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 DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES IS HEREBY
AUTHORIZED TO PROMULGATE SUCH RULES AND REGULATIONS AS ARE DEEMED NECES-
SARY TO IMPLEMENT THE PROVISIONS OF THIS SECTION, INCLUDING PRESCRIBING
MINIMUM STANDARDS FOR ADMINISTRATION AND ENFORCEMENT OF THIS SECTION.
THE DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES MAY ASSESS
MONETARY PENALTIES AS ESTABLISHED HEREIN, SUCH PENALTIES COMMENCING ON
THE FIRST DAY FOLLOWING THE ABATEMENT DATE SPECIFIED IN AN ORDER, AND
CONTINUING UNTIL THE VIOLATION HAS BEEN ABATED. ABATEMENT OF VIOLATIONS
SHALL BE VERIFIED BY THE STATE FIRE ADMINISTRATOR.
8. IN ADDITION TO THE ENFORCEMENT AUTHORITY GRANTED TO THE DIVISION OF
HOMELAND SECURITY AND EMERGENCY SERVICES 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 PRAC-
TICE 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.