Or. Admin. R. 150-323-0520 - Tobacco Products and Inhalant Delivery System Retail Licensure: Civil Penalties, Penalties on the License, Penalties for Unlicensed Retail Activity

Current through Register Vol. 61, No. 4, April 1, 2022

(1) Definitions
(a) The definitions in Oregon Laws 2021, chapter 586, section 1 apply to the terms used in this rule, in addition to the following definitions.
(b) The definitions in OAR 150-323-0500 for "Initial application", "Renewal application", "Retailer", and "Tobacco retail license" apply to the terms used in this rule.
(c) "Like-kind violation" means multiple occurrences of the same violation of a provision of ORS 323 found by the department in a single inspection at a premises.
(d) "Notice of Sales Restriction" means a notice from the department to a retailer that prohibits the sale of tobacco products or inhalant delivery systems for a period of time determined by the department.
(e) "Premises" has the same meaning given that term in OAR 150-323-0510.
(2) Civil Penalties for Licensed Retailers
(a) The Department of Revenue may impose civil penalties on any licensed retailer who:
(A) violates a provision of Oregon Laws 2021, chapter 586, sections 1 to 14, a rule adopted under Oregon Laws 2021, chapter 586, sections 1 to 14, any other state law or rule or federal law or regulation that governs the retail sale of tobacco products or inhalant delivery systems, or state taxation;
(B) makes a false statement to the department; or
(C) does not post proof of the tobacco retail license as required by Oregon Laws 2021, chapter 586, section 6, and any rule adopted by the department to implement Oregon Laws 2021, chapter 586, section 6.
(b) The following civil penalties will be imposed on a per incident basis for the violations in subsection (a) of this section:
(A) The department will issue a warning notice for a retailer's first violation within a five-year-period.
(B) The department will issue a civil penalty not to exceed $250 for a retailer's second violation within a five-year-period.
(C) The department will issue a civil penalty not to exceed $500 for a retailer's third violation within a five-year-period.
(D) The department will issue a civil penalty not to exceed $1,000 for a retailer's fourth and any subsequent violations within a five-year-period.
(c) The department may consider the following factors when deciding the amount of the civil penalty to be issued under this rule:
(A) Number of previous violations of Oregon Laws 2021, chapter 586;
(B) Whether the retailer operates multiple licensed premises; and
(C) Any other relevant factors or information that the department considers relevant to its determination.
(d) A civil penalty may not be imposed under this provision if a civil penalty for the same violation has been imposed against a retailer under OAR 150-323-0290; 150-323-0300; 150-323-0420; or 150-323-0430.
(e) If the department assesses a penalty under this section, the penalty assessment may be appealed as a contested case under ORS chapter 183 within 30 days of the date on the notice of penalty assessment.
(3) Civil Penalties for the Unlicensed Retail Sale of Tobacco Products or Inhalant Delivery Systems
(a) The department may impose a civil penalty on any retailer who holds tobacco products or inhalant delivery systems for sale at or from a premises that is required by Oregon Laws 2021, chapter 586, section 5 to be licensed by the department and for which a tobacco retail license has not been issued by the department.
(b) Penalty for operating without a license for a period of less than sixty-one days:
(A) If a retailer is found to have offered tobacco products or inhalant delivery systems for retail sale without a tobacco retail license for a period of zero to sixty days, the department may impose a $250 civil penalty against that retailer and issue a notice of sales restriction for the premises.
(B) In addition to the $250 civil penalty, the retailer must apply for a tobacco retail license within 30 days of the date of the notice of sales restriction. If the retailer does not apply for a tobacco retail licensed within 30 days, the penalty amount shall be increased from $250 to $1,000.
(C) The retailer must cease any sales of tobacco products or inhalant delivery systems from such premises and remove such products from view of the public until the department issues the premises a tobacco retail license.
(D) If after 30 days the retailer has not applied for a tobacco retail license and the retailer continues to hold tobacco products or inhalant delivery systems at the premises for sale, the department may declare the tobacco products or inhalant delivery systems are contraband products. The department may seize and destroy contraband products.
(E) A retailer who has received a notice of sales restriction may provide the department a written declaration, under penalty of perjury, that the retailer will no longer hold tobacco products or inhalant delivery systems for sale in lieu of applying for a state tobacco license. If a retailer who has submitted such a written declaration subsequently holds tobacco products or inhalant delivery systems for sale, the department may issue an additional $1,000 civil penalty and declare the tobacco products or inhalant delivery systems to be contraband products. The department may seize and destroy contraband products.
(c) Penalty for operating without a license for a period of sixty-one days or longer:
(A) If the retailer is found to have offered tobacco products or inhalant delivery systems for retail sale without a tobacco retail license for a period of greater than sixty days, in lieu of the penalty in subsection (b), the department may impose a $1,000 civil penalty against that retailer and issue a notice of sales restriction for the premises.
(B) In addition to the $1,000 civil penalty the retailer must apply for a tobacco retail license within 30 days of the date of the notice of sales restriction.
(C) The retailer must cease any sales of tobacco products or inhalant delivery systems from such premises and remove such products from view of the public until the department issues the premises a tobacco retail license.
(D) If after 30 days the retailer has not applied for a tobacco retail license and the retailer continues to hold tobacco products or inhalant delivery systems for sale at the premises, the department may declare the tobacco products or inhalant delivery systems to be contraband products. The department may seize and destroy contraband products.
(E) A retailer who has received a notice of sales restriction may provide the department a written declaration, under penalty of perjury, that the retailer will no longer hold tobacco products or inhalant delivery systems for sale in lieu of applying for a state tobacco license. If a retailer who has submitted a written declaration is found to hold tobacco products or inhalant delivery systems for sale after submitting a written declaration the department may issue an additional $1,000 civil penalty and declare the tobacco products or inhalant delivery systems to be contraband products. The department may seize and destroy contraband products.
(d) If the department assesses a penalty under this section, the penalty assessment may be appealed as a contested case under ORS chapter 183 within 30 days of the date on the notice of penalty assessment.
(e) If the department seizes contraband tobacco products or inhalant delivery system under this section, the retailer has 30 days from the date of seizure to contest the seizure in the manner provided in ORS 305.404 to 305.560.
(4) Tobacco Retail License Suspension, Revocation
(a) In addition to assessing a civil penalty, the department shall suspend a retailer's tobacco retail license if the department also finds that the retailer that holds or seeks the tobacco retail license, an individual who participates in the management of the premises for which the tobacco retail license has been or would be issued or an individual who is employed for the purpose of making retail sales at the premises, has committed three or more of the following violations within a five-year period from the date the department issued a finding of the first violation:
(A) violations of Oregon Laws 2021, chapter 586, sections 1 to 14, a rule adopted under Oregon Laws 2021, chapter 586, sections 1 to 14, any other state law or rule or federal law or regulation that governs the retail sale of tobacco products or inhalant delivery systems, or state taxation;
(B) violations of a local law or rule enacted for purposes related to public health and safety by the governing body of a local public health authority that governs the retail sale of tobacco products or inhalant delivery systems; or
(C) false statements made to the department.
(b) The department shall impose a suspension under subsection (a) of this section as follows:
(A) The department will issue a warning notice for a retailer's first and second violation within a five-year period.
(B) The department will issue a 14-day notice of suspension for a retailer's third violation within a five-year period.
(C) the department will issue a 30-day notice of suspension for a retailer's fourth and any subsequent violations within a five-year period.
(c) Violations found by the department apply to the premises found to have committed the violation and do not apply to any other premises to which the retailer holds a tobacco retail license.
(d) If the Oregon Health Authority has issued a civil penalty to a licensee under ORS 431A.175(2), the department may find that violation has also occurred for the purposes of a determination under subsection (a) of this section, unless the licensed retailer provides evidence that the authority has cancelled its penalty assessment.
(e) Notwithstanding subsection (a) of this section, the department may suspend or revoke the tobacco retail license of a retailer for any single violation described in subsection (a) if the department determines there are aggravating circumstances. Aggravating circumstances include, but are not limited to:
(A) Efforts to conceal a violation;
(B) Intentionally committing a violation;
(C) A violation involving more than one consumer or employee;
(D) A violation involving a juvenile; or
(E) A violation resulting in injury or death.
(f) The department may consider the following factors when deciding whether to suspend or revoke a license for a violation described in subsection (e) of this rule:
(A) Number of previous inspections held by the department at the place of business;
(B) Number of previous violations of ORS Chapter 323 provisions or of Oregon Laws 2021, chapter 586 section 1 to 14;
(C) Whether the retailer operates multiple licensed premises; and
(D) Any other factors or information the department considers relevant to its determination.
(g) For the purpose of determining the number of violations committed by a retailer in subsection (a) of this rule, the department will consider multiple like-kind violations of ORS Chapter 323 provisions that are discovered during one inspection as one violation.
(h) The decision of the department to suspend or revoke a tobacco retail license may be appealed as a contested case under ORS chapter 183 within 30 days of the date listed on the notice of proposed suspension.
(5) Refusal to Issue or Renew a State Tobacco Retail License
(a) The department must deny an initial or renewal application for a tobacco retail license if:
(A) The location proposed to be licensed is prohibited by Oregon Laws 2021, chapter 586, section 5(2) from being licensed.
(B) The location proposed to be licensed is located on reservation or tribal trust land of a federally recognized Indian tribe.
(C) The location proposed to be licensed is located in an area subject to the jurisdiction of a city or local public health authority that continues to enforce a requirement that a retailer who makes retail sales of tobacco products or inhalant delivery systems hold a license or other authorization issued by the city or local public health authority, as allowed by Oregon Laws 2021, chapter 586, section 18.
(b) The department may deny an initial or renewal application for a tobacco retail license if the retailer has previously been found by the department, the Oregon Health Authority, or a local public health authority to have committed a violation described in Oregon Laws 2021, chapter 586, section 7(1) at the premises seeking a renewal of a state tobacco retail license or another premises licensed by the department or had a license suspended or revoked under subsection (4)(e) of this rule for a premises listed on the application.
(c) The department may consider the following factors when deciding whether to refuse to issue or renew as described in subsection (b) of this section:
(A) Number of previous inspections held by the department at the place of business;
(B) Number of previous violations of ORS Chapter 323 provisions or of Oregon Laws 2021, chapter 586 section 1 to 14;
(C) Whether the retailer operates multiple licensed premises; and
(D) Any other factors or information the department considers relevant to its determination.
(d) If the department denies an initial or renewal application for a tobacco retail license, the applicant has 30 calendar days from the date of denial to file an appeal as a contested case under ORS chapter 183.

Notes

Or. Admin. R. 150-323-0520
REV 14-2021, adopt filed 11/23/2021, effective 12/1/2021

Statutory/Other Authority: ORS 305.100 & Oregon Laws 2021, chapter 586, section 7

Statutes/Other Implemented: Oregon Laws 2021, chapter 586, section 7, section 8, section 9

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