§ 26-57-256 - Powers of the Arkansas Tobacco Control Board. - Arkansas Statutes

26-57-256. Powers of the Arkansas Tobacco Control Board.

(a) The Arkansas Tobacco Control Board shall:

(1) Promulgate rules for the proper enforcement and implementation of this subchapter and the Unfair Cigarette Sales Act, 4-75-701 et seq., subject to the restrictions in 26-57-212(d);

(2) Receive applications for and issue, refuse, suspend, and revoke licenses and permits listed in 26-57-219;

(3) Prescribe forms of applications for permits and licenses under this subchapter;

(4) (A) Cooperate with the Revenue Division of the Department of Finance and Administration in the enforcement of the tax laws affecting the sale of tobacco products in this state and in the enforcement of all other state and local tax laws.

(B) To facilitate efforts to cooperate with the division concerning the enforcement of all other state and local tax laws, the board shall immediately require that the following additional information be provided by all applicants for permit issuance or renewal:

(i) Federal tax identification numbers issued by the Internal Revenue Service;

(ii) Social Security numbers; and

(iii) State sales tax account numbers assigned by the Department of Finance and Administration, if applicable.

(C) (i) Each year the board shall provide a list of all applicants for the issuance or renewal of all tobacco permits and licenses to the Director of the Department of Finance and Administration.

(ii) This list shall contain the identifying information required by subdivision (a)(4)(B) of this section as well as the name of the permittee and the permittee's current business address;

(5) (A) Conduct public hearings when appropriate regarding any permit and license authorized by this subchapter or in violation of this subchapter, the Unfair Cigarette Sales Act, 4-75-701 et seq., 5-27-227, or any other federal, state, or local statute, ordinance, rule, or regulation concerning the sale of tobacco products to minors or the rules promulgated by the board.

(B) (i) After a notice and hearing held in accordance with the Arkansas Administrative Procedure Act, 25-15-201 et seq., if the board finds a violation of this subchapter, the Unfair Cigarette Sales Act, 4-75-701 et seq., or the rules promulgated by the board, the board may suspend, revoke, or not renew any or all permits and licenses issued by the board to any person or entity.

(ii) In addition, the board may levy a civil penalty in an amount not to exceed five thousand dollars ($5,000) for each violation against any person or entity found to be in violation.

(iii) Each day of the violation shall be deemed a separate violation.

(C) In that regard, the board may examine or cause to be examined under oath any witness and the books and records of any licensee, person, or entity; and

(6) When requested by the written petition of at least three (3) interested parties, conduct public hearings to receive testimony on the facts relevant to the issuance of any license or permit under this subchapter.

(b) Unless the civil penalty assessed under this section is paid within fifteen (15) days following the date for an appeal from the order, the Director of Arkansas Tobacco Control shall have the power to institute a civil action in the Pulaski County Circuit Court to recover the civil penalties assessed pursuant to the provisions of this subchapter.

(c) (1) The board shall have no authority in criminal prosecutions or the assessment or collection of any taxes related to the taxing of tobacco products.

(2) However, the board shall refuse to issue, suspend, revoke, or refuse renewal of any permit or license issued by the board for the failure to pay taxes or fees imposed on tobacco products or any permit or license fees imposed by this subchapter or any other state and local taxes.

(d) The board may assess penalties for a violation of 5-27-227 according to the following schedule:

(1) If the alleged violator has received a notice of an alleged violation from the board or other agency or official with the authority to assess penalties containing the information specified in this subchapter, a civil penalty not to exceed two hundred fifty dollars ($250) for a first violation within a forty-eight-month period;

(2) A civil penalty not to exceed five hundred dollars ($500) for a second violation within a forty-eight-month period and suspension of the license or permit enumerated in 26-57-219 for a period not to exceed two (2) days;

(3) A civil penalty not to exceed one thousand dollars ($1,000) for a third violation within a forty-eight-month period and suspension of the license or permit enumerated in 26-57-219 for a period not to exceed seven (7) days;

(4) A civil penalty not to exceed two thousand dollars ($2,000) for a fourth or subsequent violation within a forty-eight-month period and suspension of the license or permit enumerated in 26-57-219 for a period not to exceed fourteen (14) days; and

(5) For a fifth or subsequent violation within a forty-eight-month period, in addition to any civil penalties authorized by this section, the license or permit under 26-57-219 may be revoked.

(e) (1) A notice of an alleged violation of 5-27-227 shall be given to the holder of a retail permit or license within ten (10) days of the alleged violation.

(2) The notice shall contain the date and time of the alleged violation.

(3) (A) The notice shall also include either the name of the person making the alleged unlawful sale or information reasonably necessary to determine the location in the store where the alleged unlawful sale was made.

(B) Information under subdivision (e)(3)(A) of this section shall include when appropriate without limitation, the cash register number, physical location of the sale in the store, and, if possible, the lane or aisle number.

(f) The board shall consider the following factors when reviewing a possible violation:

(1) The business has adopted and enforced a written policy against selling cigarettes or tobacco products to persons less than eighteen (18) years of age;

(2) The business has informed its employees of the applicable laws regarding the sale of cigarettes and tobacco products to persons less than eighteen (18) years of age;

(3) The business required employees to verify the age of cigarette or tobacco product customers by way of photographic identification;

(4) The business has established and imposed disciplinary sanctions for noncompliance; and

(5) The appearance of the purchaser of the tobacco in any form or cigarette papers was such that an ordinary prudent person would believe him or her to be of legal age to make the purchase.

(g) (1) A penalty under subsection (d) of this section for a violation of 5-27-227 shall not be imposed upon a retailer or agent or employee of a retailer who can establish an affirmative defense that before the date of the violation the retailer or agent or employee of the retailer furnishing the tobacco in any form or cigarette papers reasonably relied upon proof of age that identified the person receiving the tobacco in any form or cigarette papers as being eighteen (18) years of age or older.

(2) As used in this section, "proof of age" means any document issued by a governmental agency containing a description of the person or the person's photograph, or both, and giving the person's date of birth and includes without limitation a passport, military identification card, or driver's license.

(h) Any cigarettes or tobacco products found in the possession of a person less than eighteen (18) years of age may be confiscated.

(i) An employee of a permit holder who violates 5-27-227 is subject to a civil penalty not to exceed one hundred dollars ($100) per violation.

(j) (1) For a corporation or business with more than one (1) retail location, to determine the number of accumulated violations for purposes of the penalty schedule set forth in subsection (d) of this section, violations of 5-27-227 by one (1) retail location shall not be accumulated against other retail locations of that same corporation or business.

(2) For a retail location, for purposes of the penalty schedule set forth in subsection (d) of this section, violations accumulated and assessed against a prior owner of the retail location shall not be accumulated against a new owner of the same retail location.

(k) All penalties collected under this section shall be deposited into the State Treasury.