§ 391-S — Sale and distribution of novelty lighters prohibited

§ 391-s. Sale and distribution of novelty lighters prohibited. 1.\nDefinitions:\n (a) "Audio effects" means music, animal sounds, whistles, buzzers,\nbeepers or other noises not typically caused by or pertinent to the\nflame-producing function of the lighter.\n (b) "Distribute" means to:\n (i) Deliver to a person other than the purchaser, for retail sale; or\n (ii) Provide as part of a commercial promotion or as a prize or\npremium.\n (c) "Importer" means a person who causes a lighter to enter this state\nfrom a manufacturing, wholesale, distribution or retail sales point\noutside this state, for the purpose of selling or distributing the\nlighter within this state or with the result that the lighter is sold or\ndistributed within this state.\n (d) "Lighter" means a mechanical or electrical device of a type\ntypically used for igniting tobacco products by use of a flame.\n (e) "Novelty lighter" means a mechanical or electrical device\ntypically used for the purpose of producing a flame to light cigarettes,\ncigars or pipes and which, due to the physical or audio features of the\ndevice, excluding its capability of producing a flame, would reasonably\nbe expected to cause the lighter to be appealing or attractive to a\nchild including, but not limited to, lighters that resemble a cartoon\ncharacter, toy, gun, watch, musical instrument, vehicle, animal,\nbeverage, sporting equipment or that is capable of creating audio\neffects or displaying flashing lights.\n (f) "Sell" means to provide or promise to provide to a wholesale,\nretail, mail-order or other purchaser in exchange for consideration.\n 2. No person, firm, partnership, association or corporation shall\ndistribute, sell at retail or offer for retail sale in this state, or to\nany person located in this state, a novelty lighter.\n 3. This section shall not apply: (a) to a novelty lighter manufactured\nbefore January first, nineteen hundred eighty and which is considered a\ncollectible item within the collectible trade; (b) to a disposable or\nrefillable lighter with a logo, label, decal or artwork printed thereon\nor on heat shrinkable sleeves attached thereto but which does not\notherwise resemble a novelty lighter; or (c) if not intended for sale or\nuse in the state, to the interstate transportation of a novelty lighter\nor to the temporary storage of a novelty lighter while in interstate\ncommerce.\n 4. The division of homeland security and emergency services shall\nestablish and publicize a toll free telephone hotline number to receive\ninformation from the public about suspected violations of this section.\nThe division of homeland security and emergency services shall provide\ninformation on its agency website regarding this section and the dangers\nof novelty lighters, and provide the opportunity for persons suspecting\nviolations of this section to transmit such information to the division\nthrough the Internet.\n 5. Whenever any police officer designated in section 1.20 of the\ncriminal procedure law or a peace officer designated in subdivision four\nand subdivision seventy-nine pertaining to the office of fire prevention\nand control, of section 2.10 of such law, acting pursuant to his or her\nspecial duties, shall discover a novelty lighter in violation of this\nsection, such officer is hereby authorized and empowered forthwith to\nseize and take possession of such items. Such seized items shall be\nturned over to the state fire administrator or his designee.\n 6. Any person who violates this section shall be subject to a civil\npenalty as follows:\n (a) Not more than ten thousand dollars if the person is a manufacturer\nor importer of lighters.\n (b) Not more than one thousand dollars if the person is a wholesaler\nof lighters or distributes lighters by means other than distribution\ndirectly to consumers.\n (c) Not more than five hundred dollars if the person is:\n (i) A retail seller of lighters; or\n (ii) A person distributing lighters, if the person is other than a\nmanufacturer, importer or wholesaler.\n (d) Possession of each novelty lighter in violation of this section\nshall constitute a separate violation. If a person continues to violate\nthis section after being given written notice of the violation, each day\nthat the violation continues is a separate offense subject to a civil\npenalty.\n 7. The division of homeland security and emergency services is hereby\nauthorized to promulgate such rules and regulations as are deemed\nnecessary to implement the provisions of this section, including\nprescribing minimum standards for administration and enforcement of this\nsection. The division of homeland security and emergency services may\nassess monetary penalties as established herein, such penalties\ncommencing on the first day following the abatement date specified in an\norder, and continuing until the violation has been abated. Abatement of\nviolations shall be verified by the state fire administrator.\n 8. In addition to the enforcement authority granted to the division of\nhomeland security and emergency services in this section, whenever there\nshall be a violation of this section, an application may be made by the\nattorney general in the name of the people of the state of New York, to\na court or justice having jurisdiction by a special proceeding to issue\nan injunction, and upon notice to the defendant of not less than five\ndays, to enjoin and restrain the continuance of such violation; and if\nit shall appear to the satisfaction of the court or justice that the\ndefendant has, in fact, violated this section, an injunction may be\nissued by the court or justice, enjoining and restraining any further\nviolations, without requiring proof that any person has, in fact, been\ninjured or damaged thereby. In any such proceeding, the court may make\nallowances to the attorney general as provided in paragraph six of\nsubdivision (a) of section eighty-three hundred three of the civil\npractice law and rules, and direct restitution. Whenever the court shall\ndetermine that a violation of this section has occurred, the court may\nimpose a civil penalty as set forth in subdivision six of this section.\nIn connection with any such proposed application, the attorney general\nis authorized to take proof and make a determination of the relevant\nfacts and to issue subpoenas in accordance with the civil practice law\nand rules.\n