PROPOSED
HOUSE OF REPRESENTATIVES AMENDMENTS TO H.B. 2888
(Reference to printed bill)
Strike everything after the enacting clause and insert:
"Section 1. Section 36-798.06, Arizona Revised Statutes, is amended to read:
36-798.06. Delivery sales prohibited; common carriers; penalties; forfeiture; unlawful practice; exceptions; violation; classification; definitions
A. A person shall not do either of the following:
1. Cause a tobacco product to be ordered or purchased by anyone other than a licensed person or a retailer who orders or purchases from a licensed person, including by ordering or purchasing a tobacco product.
2. Knowingly provide substantial assistance to a person who violates this section.
B. A common carrier shall not knowingly transport a tobacco product for a person who is in violation of this section.
C. Each order or purchase of a tobacco product in violation of subsection A, paragraph 1 of this section constitutes a separate violation under this section.
D. In addition to any other penalty, a person who violates this section is subject to all of the following:
1. A civil penalty in an amount not to exceed $5,000 for each violation.
2. An injunction to restrain a threatened or actual violation of this section.
3. Recovery by this state for:
(a) The costs of any investigation related to a violation of this section.
(b) The cost of expert witness fees in any action related to a violation of this section.
(c) The cost of the action related to a violation of this section.
(d) Reasonable attorney fees.
4. All state tobacco taxes due under title 42, chapter 3, except as prohibited under section 42-3402, and all transaction privilege or use taxes due under title 42, chapter 5, including any penalties and interest.
E. All tobacco products that are seized for a violation of this section shall be forfeited to the state and destroyed pursuant to section 42-1124.
F. A violation of this section is an unlawful practice under section 44-1522 and is in addition to all other causes of action, remedies and penalties that are available to this state. The attorney general may investigate and take appropriate action pursuant to title 44, chapter 10, article 7.
G. This section does not apply to any of the following:
1. The shipment of a tobacco product to a foreign trade zone that is established under 19 United States Code sections 81a through 81u and title 44, chapter 18 and that is located in this state if the tobacco product is from outside of this country, was ordered by a distributor in another state and is not distributed in this state.
2. A government employee who is acting in the course of the employee's official duties.
3. The shipment of a tobacco product to a university that is acquiring the tobacco product to use to conduct basic and applied research, if the tobacco product is exempt from federal excise tax under 26 United States Code section 5704(a).
H. A person who violates this section is guilty of a class 6 felony.
I. For the purposes of this section:
1. "Licensed person" means a person who is required to be licensed under section 42-3401.
2. "Order or purchase" means any of the following:
(a) By mail or delivery service.
(b) Through the internet or a computer network.
(c) By telephone.
(d) Through any other electronic method.
3. "Person" means an individual, partnership, firm, association, corporation, limited liability company or partnership, joint venture or other entity.
4. "Retailer" has the same meaning prescribed in section 42-5001.
5. "Tobacco product" means all luxuries included in section 42-3052, paragraphs 4, 5, and 6 and 7. Tobacco product does not include pipe tobacco or cigars.
Sec. 2. Section 42-3001, Arizona Revised Statutes, is amended to read:
42-3001. Definitions
In this chapter, unless the context otherwise requires:
1. "Affix" and "affixed" include imprinting tax meter stamps on packages and individual containers as authorized by the department.
2. "Brand family" has the same meaning prescribed in section 44-7111.
3. "Cavendish" means a tobacco product that is smoked from a pipe and that meets one of the following criteria:
(a) Is described as cavendish, as containing cavendish or as a cavendish blend on its packaging, labeling or promotional materials.
(b) Appears to have been processed or manufactured with an amount of flavorings and humectants that exceeds twenty percent of the weight of the tobacco contained in the product.
(c) Appears to be blended with or contain a tobacco product described in subdivision (b) of this paragraph.
4. "Cider" means vinous liquor that is made from the normal alcoholic fermentation of the juice of sound, ripe apples, pears or other pome fruit, including flavored, sparkling and carbonated cider and cider made from condensed apple, pear or other pome fruit must, and that contains more than one-half of one percent of alcohol by volume but not more than seven percent of alcohol by volume.
5. "Cigar" means any roll of tobacco wrapped in leaf tobacco or in any substance containing tobacco other than any roll of tobacco that is a cigarette, as defined in paragraph 6, subdivision (b) of this section.
6. "Cigarette" means either of the following:
(a) Any roll of tobacco wrapped in paper or any substance not containing tobacco.
(b) Any roll of tobacco wrapped in any substance containing tobacco that, because of its appearance, the type of tobacco used in the filler or its packaging and labeling, is likely to be offered to or purchased by a consumer as a cigarette described in subdivision (a) of this paragraph. This subdivision shall be interpreted consistently with the classification guidelines established by the federal alcohol and tobacco tax and trade bureau.
7. "Consumer" means a person in this state that comes into possession of any luxury subject to the tax imposed by this chapter and that, on coming into possession of the luxury, is not a distributor intending to sell or distribute the luxury, a retailer or a wholesaler.
8. "Craft distiller" means a distiller in the United States or in a territory or possession of the United States that holds a license pursuant to section 4-205.10.
9. "Distributor" means any person that manufactures, produces, ships, transports or imports into this state or in any manner acquires or possesses for the purpose of making the first sale of the following:
(a) Cigarettes without Arizona tax stamps affixed as required by this article.
(b) Roll-your-own tobacco or other tobacco products on which the taxes have not been paid as required by this chapter.
10. "Farm winery" has the same meaning prescribed in section 4-101.
11. "First sale" means the initial sale or distribution in intrastate commerce or the initial use or consumption of cigarettes, roll-your-own tobacco or other tobacco products.
12. "Luxury" means any article, object or device on which a tax is imposed under this chapter.
13. "Malt liquor" means any liquid that contains more than one-half of one percent alcohol by volume and that is made by the process of fermentation and not distillation of hops or grains, but not including:
(a) Liquids made by the process of distillation of such substances.
(b) Medicines that are unsuitable for beverage purposes.
14. "Master settlement agreement" has the same meaning prescribed in section 44-7101.
15. "Microbrewery" has the same meaning prescribed in section 4-101.
16. "Nonparticipating manufacturer" has the same meaning prescribed in section 44-7111.
17. "Other tobacco products" means tobacco products other than cigarettes and roll-your-own tobacco.
18. "Participating manufacturer" has the same meaning prescribed in section 44-7111.
19. "Person" means any individual, firm, partnership, joint venture, association, corporation, municipal corporation, estate, trust, club, society or other group or combination acting as a unit, and the plural as well as the singular number.
20. "Place of business" means a building, facility site or location where an order is received or where tobacco products are sold, distributed or transferred. Place of business does not include a vehicle.
21. "Retailer" means any person that comes into possession of any luxury subject to the taxes imposed by this chapter for the purpose of selling it for consumption and not for resale.
22. "Roll-your-own tobacco" means any tobacco that, because of its appearance, type, packaging or labeling, is suitable for use and likely to be offered to or purchased by consumers as tobacco for making cigarettes. This paragraph shall be interpreted consistently with the term as used in section 44-7101. This paragraph shall be interpreted consistently with the classification guidelines established by the federal alcohol and tobacco tax and trade bureau.
23. "Smoking tobacco" means any tobacco that, because of its appearance, type, packaging, labeling or promotion, is suitable for use and likely to be offered to or purchased by consumers as tobacco for making cigarettes or otherwise consumed by burning. Smoking tobacco includes pipe tobacco and roll-your-own tobacco.
24. "Spirituous liquor" means any liquid that contains more than one-half of one percent alcohol by volume, that is produced by distillation of any fermented substance and that is used or prepared for use as a beverage. Spirituous liquor does not include medicines that are unsuitable for beverage purposes.
25. "Tobacco product manufacturer" has the same meaning prescribed in section 44-7101.
26. "Tobacco products" means all luxuries included in section 42-3052, paragraphs 5 through 9 4, 5, 6, 7 and 8.
27. "Vehicle" means a device in, on or by which a person or property is or may be transported or drawn on the roads of this state regardless of the means by which it is propelled or whether it runs on a track.
28. "Vinous liquor" means any liquid that contains more than one-half of one percent alcohol by volume and that is made by the process of fermentation of grapes, berries, fruits, vegetables or other substances but does not include:
(a) Liquids in which hops or grains are used in the process of fermentation.
(b) Liquids made by the process of distillation of hops or grains.
(c) Medicines that are unsuitable for beverage purposes.
29. "Wholesaler" means a person that sells any spirituous, vinous or malt liquor taxed under this chapter to retail dealers or for the purposes of resale only.
Sec. 3. Section 42-3052, Arizona Revised Statutes, is amended to read:
42-3052. Classifications of luxuries; rates of tax
The taxes under this chapter are imposed at the following rates:
1. On each sealed container of spirituous liquor at the rate of three dollars per gallon and at a proportionate rate for any lesser or greater quantity than one gallon $.025 per ounce of alcohol in the container and at a proportionate rate for any lesser or greater quantity than one ounce.
2. On each container of vinous liquor, except cider, of which the alcoholic content is not greater than twenty-four per cent by volume at the rate of eighty-four cents per gallon and at a proportionate rate for any lesser or greater quantity than one gallon at a rate of $.025 per ounce of alcohol in the container and at a proportionate rate for any lesser or greater quantity than one ounce.
3. On each container of vinous liquor of which the alcoholic content is greater than twenty-four per cent by volume, containing eight ounces or less, twenty-five cents, and for each eight ounces for containers containing more than eight ounces, twenty-five cents.
4. 3. On each gallon container of malt liquor or cider, sixteen cents, and at a proportionate rate for any lesser or greater quantity than one gallon at a rate of $.025 per ounce of alcohol in the container and at a proportionate rate for any lesser or greater quantity than one ounce.
5. 4. On each cigarette, nine-tenths cent $.009.
6. 5. On smoking tobacco, snuff, fine cut chewing tobacco, cut and granulated tobacco, shorts and refuse of fine cut chewing tobacco, and refuse, scraps, clippings, cuttings and sweepings of tobacco, excluding tobacco powder or tobacco products used exclusively for agricultural or horticultural purposes and unfit for human consumption, two cents $.02 per ounce or major fraction of an ounce.
7. 6. On all cavendish, plug or twist tobacco, one-half cent $.005 per ounce or fractional part of an ounce.
8. 7. On each twenty small cigars or fractional part weighing not more than three pounds per thousand, four cents $.04.
9. 8. On cigars of all descriptions except those included in paragraph 8 7 of this section, made of tobacco or any tobacco substitute:
(a) If manufactured to retail at not more than five cents $.05 each, two cents $.02 on each three cigars.
(b) If manufactured to retail at more than five cents $.05 each, two cents $.02 on each cigar.
Sec. 4. Section 42-3103, Arizona Revised Statutes, is amended to read:
42-3103. Monies allocated for state school aid
The department shall allocate the following monies for the purpose of state school aid:
1. 1.17 per cent percent of the monies collected pursuant to section 42-3052, paragraph 1.
2. 14 per cent percent of the monies collected pursuant to section 42-3052, paragraph 3 2.
3. 19.44 per cent percent of the monies collected pursuant to section 42-3052, paragraph 5 4.
Sec. 5. Section 42-3104, Arizona Revised Statutes, is amended to read:
42-3104. Monies allocated to the corrections fund
The department shall deposit, pursuant to sections 35-146, 35-147 and 42-1116, the following monies in the corrections fund established by section 41-1641:
1. 20 percent of the monies collected pursuant to section 42-3052, paragraph 1.
2. 50 percent of the monies collected pursuant to section 42-3052, paragraph 2.
3. 50 percent of the monies collected pursuant to section 42-3052, paragraph 3.
4. 3. 50 percent of the monies collected pursuant to section 42-3052, paragraph 4.
5. 4. 11.11 percent of the monies collected pursuant to section 42-3052, paragraph 5 4.
6. 5. 50 percent of the monies collected pursuant to section 42-3052, paragraph 6 5.
7. 6. 50 percent of the monies collected pursuant to section 42-3052, paragraph 7 6.
8. 7. 50 percent of the monies collected pursuant to section 42-3052, paragraph 8 7.
9. 8. 50 percent of the monies collected pursuant to section 42-3052, paragraph 9 8.
Sec. 6. Section 42-3106, Arizona Revised Statutes, is amended to read:
42-3106. Monies allocated to the drug treatment and education fund; state department of corrections revolving fund
A. Notwithstanding any law to the contrary, seven percent of the monies collected pursuant to section 42-3052, paragraph 1 and eighteen percent of the monies collected pursuant to section 42-3052, paragraphs 2, and 3 and 4 shall be deposited in the drug treatment and education fund established by section 13-901.02.
B. Notwithstanding any law to the contrary, three percent of the monies collected pursuant to section 42-3052, paragraph 1 and seven percent of the monies collected pursuant to section 42-3052, paragraphs 2, and 3 and 4 shall be deposited in a separate revolving fund of the state department of corrections.
C. Monies in the separate revolving fund of the state department of corrections shall be used for the following purposes:
1. Implementing section 31-411.01.
2. Offender participation in appropriate drug treatment programs that are administered by the state department of corrections or by a qualified agency, organization or individual that is approved or licensed by the department of health services or the board of behavioral health examiners.
3. Reentry, education or mental health assistance programs that are administered by the state department of corrections or by a qualified agency, organization or individual.
D. Monies that are deposited in the state department of corrections revolving fund pursuant to subsection B of this section shall not revert to the state general fund if unexpended at the close of the fiscal year.
E. If the state department of corrections receives a federal grant, any portion of the monies that are deposited pursuant to subsection B of this section may be used as a cash match.
Sec. 7. Section 42-3401, Arizona Revised Statutes, is amended to read:
42-3401. Tobacco distributor licenses; application; conditions; revocations and cancellations
A. Every person acquiring or possessing for the purpose of making the initial sale or distribution in this state of any tobacco products on which a tax is imposed by this chapter shall obtain from the department a license to sell tobacco products. The application for the license shall be in the form provided by the department and shall be accompanied by a fee of $25 for each place of business listed in the application. The form shall state that the identity of the applicant will be posted to the department's website for public inspection. The application for a license shall include the applicant's name and address, the applicant's principal place of business, all other places of business where the applicant's business is conducted for the purpose of making the initial sale or distribution of tobacco products in this state, including any location that maintains an inventory of tobacco products, and any other information required by the department. The applicant's principal place of business and other business locations may not include a residential location or post office box address, except as allowed under subsection D, paragraph 2, subdivision (c) of this section. If the applicant is a firm, partnership, limited liability company, limited liability partnership or association, the applicant shall list the name and address of each of the applicant's members. If the applicant is a corporation, the application shall list the name and address of the applicant's officers and any person who directly or indirectly owns an aggregate amount of ten percent or more of the ownership interest in the corporation. If a licensee is a corporation, firm, partnership, limited liability company, limited liability partnership or association, the licensee under this subsection shall notify the department in writing within thirty days after any change in membership, legal entity status or ownership of more than fifty percent of the total ownership interest in a single transaction. If a licensee changes its business location, the licensee under this subsection shall notify the department within thirty days after a change in location. If the licensee is making a change in its business location by adding or replacing one or more additional places of business that are not currently listed on its application, the licensee must remit a fee of $25 for each additional place of business.
B. For the purposes of subsection A of this section, an applicant with a controlling interest in more than one business engaged in activities as a distributor shall apply for a single license encompassing all such businesses and list each place of business in its application. For the purposes of this subsection, "controlling interest" means direct or indirect ownership of at least eighty percent of the voting shares of a corporation or of the interests in a company, business or person other than a corporation.
C. The department shall issue a license authorizing the applicant to acquire or possess tobacco products in this state on the condition that the applicant complies with this chapter and the rules of the department. The license:
1. Shall be nontransferable. A licensee may not transfer its license to a new owner when selling its business, and any court-appointed trustee, receiver or other person shall obtain a license in its own name in cases of liquidation, insolvency or bankruptcy or pursuant to a court order if the business remains in operation as a distributor of tobacco products. In cases of liquidation, insolvency or bankruptcy or pursuant to a court order, the department will not consider a business as remaining in operation under this paragraph if the court-appointed trustee, receiver or other person winds up the business within sixty days after the order is issued. A licensee shall apply for a new license if it changes its legal entity status or otherwise changes the legal structure of its business.
2. Shall be valid for one year unless earlier canceled or revoked by the department.
3. Shall be displayed in a conspicuous place at the licensee's place of business. If the licensee operates from more than one place of business, the licensee must display a copy of its license in a conspicuous place at each location.
D. As a condition of licensure under this section, an applicant agrees to the following conditions:
1. A person may not hold or store any tobacco products, whether within or outside of this state, for sale or distribution in this state by or on behalf of a distributor at any place other than a location that has been disclosed to the department pursuant to subsection A of this section. This paragraph does not include a person holding or storing tobacco products by or on behalf of the distributor when the tobacco products are in transit to a distributor or retailer as part of a lawful sale.
2. All tobacco products held or stored, whether within or outside of this state, for sale or distribution in this state by or on behalf of a distributor:
(a) Shall be accessible to the department during normal business hours without a judicial warrant or prior written consent of the distributor.
(b) May not be held or stored in a vehicle, except as allowed under section 42-3403, subsection B.
3. Tobacco products may be sold, transferred or distributed to a retailer located on an Indian reservation in this state only if the retailer is registered with, and has a registration identification number issued by, the department.
E. A person who is convicted of an offense described in section 42-1127, subsection E is permanently ineligible to hold a license issued under this section.
F. The department may not issue or renew a license to an applicant and may revoke a license issued under subsection C of this section if any of the following applies:
1. The applicant or licensee owes $1,000 or more in delinquent taxes imposed on tobacco products under this chapter that are not under protest or subject to a payment agreement.
2. The department has revoked any license held by the applicant or licensee within the previous two years.
3. The applicant or licensee has been convicted of a crime that relates to stolen or counterfeit cigarettes.
4. The applicant or licensee has imported cigarettes into the United States for sale or distribution in violation of 19 United States Code section 1681a.
5. The applicant or licensee has imported cigarettes into the United States for sale or distribution without fully complying with the federal cigarette labeling and advertising act (P.L. 89-92; 79 Stat. 282; 15 United States Code section 1331).
6. The applicant or licensee is in violation of section 13-3711 or section 36-798.06, subsection A.
7. Pursuant to section 44-7111, section 6(a), the applicant or licensee is in violation of section 44-7111, section 3(c).
8. The civil rights of the applicant or licensee have been suspended under section 13-904. An applicant or licensee whose civil rights have been suspended is ineligible to hold a license for a period of five years following the restoration of the applicant's or licensee's civil rights.
G. In addition to any other civil or criminal penalty and except as otherwise provided in this section, the department may deny the issuance or renewal of or revoke a license issued under subsection C of this section if the person violates any requirement under this title more than two times within a three-year period or fails to otherwise maintain the conditions of licensure in this section.
H. The department shall publish on its website the names of each person who is issued a license under subsection C of this section, including any trade names or business names used by the licensee. The department shall update the published names at least once each month.
I. A person may not apply for or hold a distributor's license if that person does not engage in the activities described in subsection A of this section. In addition to any other applicable penalty, the department may cancel the license of any licensee that fails to incur any tax liability under this chapter for twelve consecutive months.
J. Any revocation, cancellation or denial of a license issued under this section by the department must comply with section 41-1092.11, subsection B.
K. Notwithstanding any other law, for the purposes of subsection F, paragraphs 1 and 2 of this section, section 42-1127, subsection C and section 42-3461, subsection B, if a distributor has listed in its application more than one place of business, any revocation, cancellation, denial or nonrenewal of the distributor's license shall apply only with effect to remove the place of business or business location at which the activity occurred from the distributor's license. If such a removal occurs, the distributor shall be subject to restrictions that the department prescribes by rule."
Amend title to conform