S T A T E O F N E W Y O R K
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8402--A
2011-2012 Regular Sessions
I N A S S E M B L Y
June 15, 2011
___________
Introduced by M. of A. DINOWITZ, GABRYSZAK, HOOPER, GALEF, COOK, MAISEL,
TOBACCO, BARCLAY, LIFTON, JAFFEE, MARKEY, P. RIVERA, KELLNER, M. MILL-
ER, PAULIN, LAVINE, ORTIZ, WEPRIN, GUNTHER -- Multi-Sponsored by -- M.
of A. ARROYO, BLANKENBUSH, BOYLAND, BOYLE, BROOK-KRASNY, BURLING,
CALHOUN, DUPREY, GIBSON, GLICK, GOODELL, MAGEE, McENENY, ROBINSON,
RUSSELL, SCHIMEL, WEISENBERG -- read once and referred to the Commit-
tee on Consumer Affairs and Protection -- recommitted to the Committee
on Consumer Affairs and Protection in accordance with Assembly Rule 3,
sec. 2 -- committee discharged, bill amended, 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-s to read as follows:
S 391-S. SALE AND DISTRIBUTION OF NOVELTY LIGHTERS PROHIBITED. 1.
DEFINITIONS:
(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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06212-04-2
A. 8402--A 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" MEANS A MECHANICAL OR ELECTRICAL DEVICE TYPICAL-
LY USED 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 RESEM-
BLE A CARTOON CHARACTER, TOY, GUN, WATCH, MUSICAL INSTRUMENT, VEHICLE,
ANIMAL, BEVERAGE, SPORTING EQUIPMENT OR THAT IS CAPABLE OF CREATING
AUDIO EFFECTS OR DISPLAYING FLASHING LIGHTS.
(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. THIS SECTION SHALL NOT APPLY: (A) TO A NOVELTY LIGHTER MANUFACTURED
BEFORE JANUARY FIRST, NINETEEN HUNDRED EIGHTY AND WHICH IS CONSIDERED A
COLLECTIBLE ITEM WITHIN THE COLLECTIBLE TRADE; (B) TO 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 OTHER-
WISE RESEMBLE A NOVELTY LIGHTER; OR (C) IF NOT INTENDED FOR SALE OR USE
IN THE STATE, TO THE INTERSTATE TRANSPORTATION OF A NOVELTY LIGHTER OR
TO THE TEMPORARY STORAGE OF A NOVELTY LIGHTER WHILE IN INTERSTATE
COMMERCE.
4. 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.
5. 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.
6. 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. 8402--A 3
THAT THE VIOLATION CONTINUES IS A SEPARATE OFFENSE SUBJECT TO A CIVIL
PENALTY.
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 SIX 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.