34 Tex. Admin. Code § 3.1204 - Administrative Remedies for Violations of Health and Safety Code, Chapter 161, Subchapter H
(a) Definitions.
The following words and terms, when used in this section shall have the
following meanings, unless the context clearly indicates otherwise.
(1) Cigar--A roll of fermented tobacco that
is wrapped in tobacco and the main stream of smoke from which produces an
alkaline reaction to litmus paper.
(2) Cigarette--A roll for smoking:
(A) that is made of tobacco or tobacco mixed
with another ingredient and wrapped or covered with a material other than
tobacco; and
(B) that is not a
cigar.
(3)
E-cigarette--An electronic cigarette or any other device that simulates smoking
by using a mechanical heating element, battery, or electronic circuit to
deliver nicotine or other substances to the individual inhaling from the
device; or a consumable liquid solution or other material aerosolized or
vaporized during the use of an electronic cigarette or other device described
by this paragraph.
(A) The term "e-cigarette"
includes:
(i) a device described by this
paragraph regardless of whether the device is manufactured, distributed, or
sold as an e-cigarette, e-cigar, or e-pipe or under another product name or
description; and
(ii) a component,
part, or accessory for the device, regardless of whether the component, part,
or accessory is sold separately from the device.
(B) The term "e-cigarette" does not include a
prescription medical device unrelated to the cessation of smoking.
(4) Interstate warehouse--A person
in this state who receives untaxed cigarettes, e-cigarettes, tobacco products
from a manufacturer, bonded agent, distributor, or importer and stores the
tobacco products exclusively for an interstate warehouse transaction.
(5) Interstate warehouse transaction--The
sale or delivery of cigarettes, e-cigarettes and tobacco products from an
interstate warehouse to a person located in another state who is licensed or
permitted by the other state to pay the state's excise tax on tobacco products
as required.
(6) Permit holder--A
bonded agent, interstate warehouse, distributor, wholesaler, manufacturer,
importer, export warehouse, or retailer who obtains a permit under Health &
Safety Code, Chapter 147, Subchapter B (Permits), or Tax Code, §
154.101
(Permits) or §
155.041
(Permits).
(7) Place of business--
(A) a commercial business location where
cigarettes, e-cigarettes or tobacco products are sold;
(B) a commercial business location where
cigarettes, e-cigarettes or tobacco products are kept for sale or consumption
or otherwise stored;
(C) a vehicle
from which cigarettes, e-cigarettes or tobacco products are sold; or
(D) a vending machine from which cigarettes
or tobacco products are sold.
(8) Retailer--A person who engages in the
practice of selling cigarettes, e-cigarettes, or tobacco products to consumers
and includes a person who sells e-cigarettes through a marketplace and the
owner of a cigarette or tobacco product vending machine.
(9) Tobacco product--A tobacco product is:
(A) a cigar;
(B) smoking tobacco, including granulated,
plug-cut, crimp-cut, ready-rubbed, and any form of tobacco substitute for
smoking in a pipe or as a cigarette;
(C) chewing tobacco, including Cavendish,
Twist, plug, scrap, and any kind of tobacco suitable for chewing;
(D) snuff or other preparations of pulverized
tobacco; or
(E) an article or
product that is made of tobacco or a tobacco substitute and that is not a
cigarette or an e-cigarette.
(b) Violations. Violations of Health and
Safety Code, Chapter 161, Subchapter H (Distribution of Cigarettes,
E-Cigarettes, or Tobacco Products) include, but are not limited to:
(1) the sale of cigarettes, e-cigarettes or
tobacco products to persons younger than 21 years of age, as provided in Health
and Safety Code, §
161.082;
(2) failure to display a warning sign as
prescribed by Health and Safety Code, §
161.084;
(3) failure to notify employees of state law
as required by Health and Safety Code §
161.085;
(4) offering cigarettes, e-cigarettes, or
tobacco products for sale in a manner that permits a customer direct access to
the cigarettes, e-cigarettes, or tobacco products in violation of Health and
Safety Code, §
161.086;
(5) installing or maintaining a vending
machine containing cigarettes, e-cigarettes, or tobacco products in violation
of Health and Safety Code, §
161.086;
(6) distributing a free sample of a
cigarette, e-cigarette, or tobacco product, or a coupon or other item that the
recipient may use to receive a free cigarette, e-cigarette, or tobacco product,
in violation of Health and Safety Code, §
161.087;
(7) distributing to a person younger than 21
years of age a coupon or other item that the recipient may use to receive a
discounted cigarette, e-cigarette, or tobacco product in violation of Health
and Safety Code, §
161.087;
and
(8) markets, advertises, sells,
or causes to be sold a prohibited e-cigarette product in violation of Health
and Safety Code, §
161.0876 and
§
3.1208 of this title (concerning
Prohibited E-Cigarette Products).
(c) Report of violation. The comptroller may
receive a report of a violation of Health and Safety Code, Chapter 161,
Subchapter H from any person, including:
(1)
the Enforcement or Criminal Investigations Divisions of the comptroller's
office;
(2) local law
enforcement;
(3) a municipal court
or a justice of the peace court; or
(4) a complaint reported by a caller on the
tobacco hotline.
(d)
Disciplinary actions.
(1) A retailer is
subject to disciplinary action as provided by this section if an agent or
employee of the retailer commits an offense under this subchapter.
(2) The penalties for a violation of Health
and Safety Code, Subchapter H are:
(A) for
the first violation at a place of business during the 24-month period preceding
the violation, a fine in an amount not to exceed $1,000;
(B) for the second violation at a place of
business during the 24-month period preceding the most recent violation, a fine
in an amount not to exceed $2,000;
(C) for the third violation at a place of
business during the 24-month period preceding the most recent violation:
(i) a fine in an amount not to exceed $3,000;
and
(ii) suspension, for not more
than five days, of the permit for that place of business issued under Health
and Safety Code, Chapter 147, or Tax Code, Chapters 154 or 155, as applicable;
and
(D) except as
provided by paragraph (4) of this subsection, for the fourth or subsequent
violation at a place of business during the 24-month period preceding the most
recent violation, revocation of the permit issued under Health and Safety Code,
Chapter 147, or Tax Code, Chapters 154 or 155, as applicable. If the permit
holder does not hold a permit for that place of business under Health and
Safety Code, Chapter 147, or Tax Code, Chapters 154 or 155, the revocation of
the sales and use tax permit issued under Tax Code §
151.201 (Sales Tax
Permits).
(3) A permit
holder whose permit has been revoked under paragraph (2)(D) of this subsection
may not apply for a permit for the same place of business before the expiration
of six months after the effective date of the revocation.
(4) The comptroller may suspend a permit, but
may not revoke the permit, under paragraph (2)(D) of this subsection if the
comptroller finds:
(A) the permit holder has
not violated this subchapter more than seven times at the place of business for
which the permit is issued in the 48-month period preceding the violation in
question;
(B) the permit holder
requires its employees to attend a comptroller-approved seller training
program;
(C) the employees have
actually attended a comptroller-approved seller training program; and
(D) the permit holder has not directly or
indirectly encouraged the employees to violate the law.
(e) Written notice of violation.
When the comptroller receives a report of a violation by a permit holder, the
comptroller may send a written notice of violation to the permit holder
informing the permit holder that a violation has been reported and that the
comptroller proposes taking disciplinary action against the permit holder.
(1) The written notice of violation will
identify the disciplinary action that the comptroller proposes to
take.
(2) The written notice of
violation will provide the permit holder an opportunity to request a hearing on
or before the 20th day after the date on the written notice of violation and
will inform the permit holder that failure to request a hearing on or before
that date will result in the waiver of the right to a hearing and the
imposition of the proposed penalty.
(f) Administrative hearings. If the permit
holder responds to the written notice of violation and requests a hearing on or
before the 20th day after the date on the written notice of violation, the
comptroller will grant an administrative hearing. A hearing request is
considered submitted by the date-stamp affixed by the agency mail room. The
hearing shall be governed by §
1.21 of this title (relating to
Cigarette, E-Cigarette, Cigar, and Tobacco Tax Hearings).
(g) Waiver of hearing. If the permit holder
does not respond to the written notice of violation on or before the 20th day
after the date on the written notice of violation, the permit holder's right to
an administrative hearing is waived. An untimely request for an administrative
hearing will not be granted.
Notes
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