Prohibits the retail sale, distribution or offer to sell at retail to any person in the state, novelty lighters; provides definition of novelty lighters; establishes civil penalties; makes certain exceptions; provides no person is subject to a civil penalty for any violation occurring before the 90th day after enactment.
STATE OF NEW YORK
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1011--A
2013-2014 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2013
___________
Introduced by M. of A. DINOWITZ, GABRYSZAK, HOOPER, GALEF, COOK, MAISEL,
LIFTON, JAFFEE, MARKEY, KELLNER, MILLER, PAULIN, LAVINE, ORTIZ,
WEPRIN, GUNTHER, BARCLAY, BRINDISI, BUCHWALD -- Multi-Sponsored by --
M. of A. ARROYO, BLANKENBUSH, BOYLAND, BROOK-KRASNY, DUPREY, GIBSON,
GLICK, GOODELL, MAGEE, McDONALD, ROBINSON, RUSSELL, SCHIMEL, TENNEY,
WEISENBERG -- read once and referred to the Committee on Consumer
Affairs and Protection -- reported and referred to the Committee on
Codes -- reported and referred to the Committee on Rules -- Rules
Committee discharged, bill amended, ordered reprinted as amended and
recommitted to the Committee on Rules
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:
1 Section 1. The general business law is amended by adding a new section
2 391-s to read as follows:
3 § 391-s. Sale and distribution of novelty lighters prohibited. 1.
4 Definitions:
5 (a) "Audio effects" means music, animal sounds, whistles, buzzers,
6 beepers or other noises not typically caused by or pertinent to the
7 flame-producing function of the lighter.
8 (b) "Distribute" means to:
9 (i) Deliver to a person other than the purchaser, for retail sale; or
10 (ii) Provide as part of a commercial promotion or as a prize or premi-
11 um.
12 (c) "Importer" means a person who causes a lighter to enter this state
13 from a manufacturing, wholesale, distribution or retail sales point
14 outside this state, for the purpose of selling or distributing the
15 lighter within this state or with the result that the lighter is sold or
16 distributed within this state.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02934-03-3
A. 1011--A 2
1 (d) "Lighter" means a mechanical or electrical device of a type typi-
2 cally used for igniting tobacco products by use of a flame.
3 (e) "Novelty lighter" means a mechanical or electrical device typical-
4 ly used for the purpose of producing a flame to light cigarettes, cigars
5 or pipes and which, due to the physical or audio features of the device,
6 excluding its capability of producing a flame, would reasonably be
7 expected to cause the lighter to be appealing or attractive to a child
8 including, but not limited to, lighters that resemble a cartoon charac-
9 ter, toy, gun, watch, musical instrument, vehicle, animal, beverage,
10 sporting equipment or that is capable of creating audio effects or
11 displaying flashing lights.
12 (f) "Sell" means to provide or promise to provide to a wholesale,
13 retail, mail-order or other purchaser in exchange for consideration.
14 2. No person, firm, partnership, association or corporation shall
15 distribute, sell at retail or offer for retail sale in this state, or to
16 any person located in this state, a novelty lighter.
17 3. This section shall not apply: (a) to a novelty lighter manufactured
18 before January first, nineteen hundred eighty and which is considered a
19 collectible item within the collectible trade; (b) to a disposable or
20 refillable lighter with a logo, label, decal or artwork printed thereon
21 or on heat shrinkable sleeves attached thereto but which does not other-
22 wise resemble a novelty lighter; or (c) if not intended for sale or use
23 in the state, to the interstate transportation of a novelty lighter or
24 to the temporary storage of a novelty lighter while in interstate
25 commerce.
26 4. The division of homeland security and emergency services shall
27 establish and publicize a toll free telephone hotline number to receive
28 information from the public about suspected violations of this section.
29 The division of homeland security and emergency services shall provide
30 information on its agency website regarding this section and the dangers
31 of novelty lighters, and provide the opportunity for persons suspecting
32 violations of this section to transmit such information to the division
33 through the Internet.
34 5. Whenever any police officer designated in section 1.20 of the crim-
35 inal procedure law or a peace officer designated in subdivision four and
36 subdivision seventy-nine pertaining to the office of fire prevention and
37 control, of section 2.10 of such law, acting pursuant to his or her
38 special duties, shall discover a novelty lighter in violation of this
39 section, such officer is hereby authorized and empowered forthwith to
40 seize and take possession of such items. Such seized items shall be
41 turned over to the state fire administrator or his designee.
42 6. Any person who violates this section shall be subject to a civil
43 penalty as follows:
44 (a) Not more than ten thousand dollars if the person is a manufacturer
45 or importer of lighters.
46 (b) Not more than one thousand dollars if the person is a wholesaler
47 of lighters or distributes lighters by means other than distribution
48 directly to consumers.
49 (c) Not more than five hundred dollars if the person is:
50 (i) A retail seller of lighters; or
51 (ii) A person distributing lighters, if the person is other than a
52 manufacturer, importer or wholesaler.
53 (d) Possession of each novelty lighter in violation of this section
54 shall constitute a separate violation. If a person continues to violate
55 this section after being given written notice of the violation, each day
A. 1011--A 3
1 that the violation continues is a separate offense subject to a civil
2 penalty.
3 7. The division of homeland security and emergency services is hereby
4 authorized to promulgate such rules and regulations as are deemed neces-
5 sary to implement the provisions of this section, including prescribing
6 minimum standards for administration and enforcement of this section.
7 The division of homeland security and emergency services may assess
8 monetary penalties as established herein, such penalties commencing on
9 the first day following the abatement date specified in an order, and
10 continuing until the violation has been abated. Abatement of violations
11 shall be verified by the state fire administrator.
12 8. In addition to the enforcement authority granted to the division of
13 homeland security and emergency services in this section, whenever there
14 shall be a violation of this section, an application may be made by the
15 attorney general in the name of the people of the state of New York, to
16 a court or justice having jurisdiction by a special proceeding to issue
17 an injunction, and upon notice to the defendant of not less than five
18 days, to enjoin and restrain the continuance of such violation; and if
19 it shall appear to the satisfaction of the court or justice that the
20 defendant has, in fact, violated this section, an injunction may be
21 issued by the court or justice, enjoining and restraining any further
22 violations, without requiring proof that any person has, in fact, been
23 injured or damaged thereby. In any such proceeding, the court may make
24 allowances to the attorney general as provided in paragraph six of
25 subdivision (a) of section eighty-three hundred three of the civil prac-
26 tice law and rules, and direct restitution. Whenever the court shall
27 determine that a violation of this section has occurred, the court may
28 impose a civil penalty as set forth in subdivision six of this section.
29 In connection with any such proposed application, the attorney general
30 is authorized to take proof and make a determination of the relevant
31 facts and to issue subpoenas in accordance with the civil practice law
32 and rules.
33 § 2. This act shall take effect immediately. Notwithstanding such
34 effective date, no person shall be subject to a civil penalty for any
35 violation that occurs before the ninetieth day after such effective
36 date.
