Utah Administrative Code

The Utah Administrative Code is the body of all effective administrative rules as compiled and organized by the Division of Administrative Rules (see Subsection 63G-3-102(5); see also Sections 63G-3-701 and 702).

NOTE: For a list of rules that have been made effective since August 1, 2019, please see the codification segue page.

NOTE TO RULEFILING AGENCIES: Use the RTF version for submitting rule changes.


R384. Health, Disease Control and Prevention, Health Promotion.

Rule R384-324. Tobacco Retailer Permit Process.

As in effect on August 1, 2019

Table of Contents

R384-324-1. Authority and Purpose.

(1) This rule is authorized by Section 26-1-5 and Subsections 26-1-30(4) and 26-62-202(6).

(2) This rule establishes the process by which local health departments issue, suspend and revoke a tobacco retail permit.

R384-324-2. Definitions.

As used in this rule:

(1) "Community location" means the same as the term is defined in Section 17-50-333 and in Section 10-8-41.6.

(2) "Department" means the Utah Department of Health, created in Section 26-1-4.

(3) "General tobacco retailer" means a tobacco retailer that is not a retail tobacco specialty business.

(4) "Local health department" means the same as the term is defined in Section 26A-1-102.

(5) "Plan review" means the process by which the local health department will verify the accuracy of the information provided by retail tobacco specialty businesses through the permit application process.

(6) "Proprietor" means the owner of a retail establishment, or any other place of business which sells, markets, or distributes tobacco products.

(7) "Public retail floor space" means the total floor square feet of the business where a customer can see, retrieve, or purchase any item that is offered for sale by the general tobacco retailer, including all areas behind the purchase counter, and including appurtenant areas used for storage.

(8) "Retail tobacco specialty business" means a commercial establishment in which:

(a) The sale of tobacco products accounts for more than 35% of the total quarterly gross receipts for the establishment;

(b) 20% or more of the public retail floor space is allocated to the offer, display, or storage of tobacco products;

(c) 20% or more of the total shelf space is allocated to the offer, display, or storage of tobacco products; or

(d) The retail space features a self-service display for tobacco products.

(9) "Self-service display" means the same as that term defined in Section 76-10-105.1.

(10) "Shelf space" means the total cubic feet (length x depth x height) of shelf space contained within the retail space that is used for the offer, display, or storage of items that are offered for sale by the tobacco retailer. The shelf height is measured from the top of the tallest item on the top of the shelf. The shelf length is measured from the end of the longest item at the end of the shelf. Empty shelf space is not included in the total shelf space calculation.

(11) "Tobacco product" means the same as that term defined In Section 59-14-102.

(a) Tobacco paraphernalia, as that term is defined in Section 76-10-104.1.

(12) "Tobacco retailer" means a proprietor that is required to obtain a tax commission license and a local health department permit for the sale of tobacco.

(13) "Tobacco retail permit" means the permit issued by the local health department to general tobacco retailers and retail tobacco specialty businesses for the sale, marketing or distribution of tobacco products.

R384-324-3. Permit Process.

This permitting process is separate from and in addition to the requirement to have and maintain a valid tobacco license with the Utah State Tax Commission.

(1) Beginning July 1, 2018, a tobacco retailer shall hold a valid tobacco retail permit issued by the local health department with jurisdiction over the physical location where the tobacco retailer operates.

(a) A tobacco retailer that holds a tax commission license that was valid on July 1, 2018:

(i) May operate without a permit under this chapter until December 31, 2018; and

(ii) Shall obtain a permit from a local health department under this chapter before January 1, 2019.

(iii) Shall maintain a valid tax commission license.

(2) To receive a tobacco retail permit, an applicant shall:

(a) Submit an application provided by the local health department with jurisdiction over the physical location where the tobacco retailer operates or will operate;

(b) Pay all applicable fees.

(3) To submit an application for a tobacco retail permit, an applicant shall:

(a) Complete all required sections of the application and submit either online or a hard copy to the local health department.

(i) Provide information for each individual listed as a proprietor.

(1) If the proprietor is a corporation, corporate information suffices.

(a) A local individual to contact concerning the application and business must be included under business information on the application.

(ii) Provide information concerning the business, including business name, street address, mailing address, and telephone number.

(iii) Provide a copy of a valid tax commission license.

(iv) The individual completing the application must certify that the proposed retail tobacco location meets the requirements as defined in the application for a:

(1) General tobacco retailer; or

(2) Retail tobacco specialty business.

(v) Applications for a retail tobacco specialty business must include a map that demonstrates that the business is not located within:

(1) 1,000 feet of a community location; and,

(2) 600 feet of another retail tobacco specialty business; and,

(3) 600 feet of property used or zoned for agricultural or residential use.

(a) For purposes of subsection a.v., the proximity requirements shall be measured in a straight line from the nearest entrance of the retail tobacco specialty business to the nearest property boundary of the location identified as the business address, without regard for intervening structures or zoning districts.

(vi) Application for a retail tobacco specialty business must include a $250.00 plan review fee.

(1) Proprietor is responsible to notify the local health department if there is a change in their business operation requiring a change in their business license between tobacco retail specialty business and general tobacco retailer.

(2) If the information described in Subsection 26-62-202(3) changes, a tobacco retailer:

(a) may not renew the permit; and

(b) shall apply for a new permit no later than 15 days after the information in Subsection 26-62-202(3) changes.

(vii) Notwithstanding subsection a.v., a tobacco specialty business that received a business license from a municipality under Section 10-8-41.6, or from a county under Section 17-50-333, before December 31, 2015, is exempt from the proximity requirements.

(viii) A tobacco specialty business that received a business license from a municipality under Section 10-8-41.6, or from a county under Section 17-50-333, on or after December 31, 2015, may continue to operate until December 31, 2018 so long as the business maintains a current and valid business license and tobacco tax license.

(ix) A tobacco specialty business that received a business license from a municipality under Section 10-8-41.6, or from a county under Section 17-50-333, on or after December 31, 2015, that desires to continue to sell tobacco products on December 31, 2018, and beyond;

(1) Must complete the application described in this section and demonstrate that the location:

(a) Meets the proximity requirements for a tobacco specialty business in subsection a.v; or,

(b) Has a business model and business layout that meets the requirements for a general tobacco retailer.

(4) Local health departments will have 30 days to issue the permit beginning on the date the local health department receives the application and payment.

(a) Local health department will provide online or hard copy receipt of payment and application submission to the proprietor at the time the local health department receives the application and payment.

(i) The receipt provided by the local health department to the proprietor will serve as a temporary operating permit, which will be valid for 30 days.

(5) General tobacco retailers and retailer tobacco specialty businesses that hold a valid tax commission license may begin applying for a local health department tobacco permit on November 1, 2018.

(a) Permit length and terms

(i) A general tobacco retailer permit is valid for two years.

(ii) A retail tobacco specialty business permit is valid for one year.

(iii) A tobacco retailer may apply for a renewal of a permit no earlier than 30 days before the day on which the permit expires.

(iv) A tobacco retailer that fails to renew a permit before the permit expires may apply to reinstate the permit by submitting to the local health department:

(1) An application for either a general tobacco retailer or a retail tobacco specialty business as outlined above;

(2) The fee for the reinstatement of a permit; and

(3) A signed affidavit affirming that the tobacco retailer has not violated the prohibitions in Subsection 26-62-201(1)(b).

(a) Until an expired permit is reinstated, a tobacco retailer with an expired permit may not:

(i) Place tobacco in public view;

(ii) Display any advertisement related to tobacco products that promotes the sale, distribution, or use of those products; or

(iii) Sell, offer for sale, or offer to exchange for any form of consideration, tobacco or tobacco products.

(iv) The permit is non-transferrable.

R384-324-4. Permit Violations.

(1) A proprietor is in violation of the permit issued under this rule if the proprietor violates:

(a) any provision of Title 26,Chapter 62;

(b) any provision of licensing laws under Section 10-8-41.6 or Section 17-50-333;

(c) any provision of Title 76, Chapter 10, Part 1;

(d) any provision of Title 76,Chapter 10, Part 16;

(e) any regulation restricting the sale and distribution of cigarettes and smokeless tobacco issued by the United States Food and Drug Administration under 21 C.F.R. Part 1140; or

(f) any other provision of state law or local ordinance regarding the sale, marketing, or distribution of tobacco products.

R384-324-5. Enforcement.

In enforcing or seeking penalties of any violation as set forth in this rule or Section 26-62-301, the Department and local health departments shall comply with the enforcement provisions found in Title 26, Chapter 62, Part 3.

KEY

tobacco, permits, tobacco retailers

Date of Enactment or Last Substantive Amendment

July 9, 2018

Authorizing, Implemented, or Interpreted Law

26-1-5; 26-1-30(4); 26-62-202(6)


Additional Information

Contact

For questions regarding the content or application of rules under Title R384, please contact the promulgating agency (Health, Disease Control and Prevention, Health Promotion). A list of agencies with links to their homepages is available at http://www.utah.gov/government/agencylist.html or from http://www.rules.utah.gov/contact/agencycontacts.htm.