Senate Bill S933A

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

                                 933--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sens. MARTINS, BOYLE, CARLUCCI, GIPSON, GOLDEN, MARCHIONE
  -- read twice and ordered printed, and when printed to be committed to
  the Committee on Consumer Protection -- reported favorably  from  said
  committee  and  committed  to  the  Committee  on Finance -- 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.
  (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

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

                                                           LBD02934-02-3

S. 933--A                           2

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
INCLUDING,  BUT NOT LIMITED TO, LIGHTERS THAT RESEMBLE A CARTOON CHARAC-
TER, 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
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

S. 933--A                           3

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.