26-57-255. Arkansas Tobacco Control Board — Creation — Definition.

26-57-255. Arkansas Tobacco Control Board — Creation — Definition. (a) There is created the Arkansas Tobacco Control Board to consist of the following eight (8) members appointed by the Governor: (1) Two (2) members of the board shall be wholesalers of tobacco products, vapor products, alternative nicotine products, or e-liquid products; (2) Two (2) members of the board shall be retailers of tobacco products, vapor products, alternative nicotine products, or e-liquid products; and (3) Four (4) members of the board shall be members of the public at large who are not public employees or officials, at least one (1) of whom shall be an African-American, and two (2) of whom shall be appointed by the Governor after consulting the Arkansas Medical Society, Inc. and subject to confirmation by the Senate. (b) The Governor shall designate which member of the board shall act as chair and that person shall serve as chair for two (2) years unless his or her membership on the board ceases prior to the end of the two-year period. (c)(1) All members of the board shall be residents of the State of Arkansas and confirmed by the Senate. (2) The term of office shall be five (5) years. (d)(1) A minimum of five (5) members is required for a quorum. (2)(A) All action by the board shall be by a majority vote of the board members present at the regular or special meeting, and the board may take no official action in connection with a matter except at a regular or special meeting. (B) In the event of a tie vote of the members of the board, the Director of Arkansas Tobacco Control may cast the deciding vote. (e) A person who is not a citizen of the United States and who has not resided in the State of Arkansas for at least two (2) consecutive years immediately preceding the date of appointment shall not be appointed to the board. (f) Each member of the board and the director shall take and subscribe to an oath that he or she will support and enforce this subchapter, the tobacco control laws of this state, the Arkansas Constitution, and the United States Constitution. (g) The board shall: (1) Act as the adjudicatory body for Arkansas Tobacco Control; (2) Have responsibility for approving the issuance, suspension, and revocation of the permits enumerated in § 26-57-219; (3)(A) Conduct public hearings when appropriate regarding a permit authorized under 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, vapor products, alternative nicotine products, or e-liquid products to minors or the rules promulgated by Arkansas Tobacco Control. (B) After 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 Arkansas Tobacco Control, the board may suspend or revoke any or all permits issued by the director to any person. (C) The board may levy a civil penalty in an amount not to exceed five thousand dollars ($5,000) for each violation against a person found to be in violation of this subchapter, the Unfair Cigarette Sales Act, § 4-75-701 et seq., or the rules promulgated by Arkansas Tobacco Control. (D) Each day of a violation is a separate violation. (E) A civil penalty under subdivision (g)(3)(C) of this section is in addition to any penalties levied by the board under § 26-57-248. (F) In conducting a hearing under this subdivision (g)(3), the board may examine or cause to be examined under oath any witness and the books and records of a permitted person or other person; (4) When requested by the written petition of at least three (3) interested parties, conduct public hearings to receive testimony regarding the facts relevant to the issuance of a permit under this subchapter; and (5)(A) Not have authority in criminal prosecutions or the assessment or collection of any taxes. (B) However, the board shall refuse to approve the issuance or renewal of a permit issued by the director for the failure to pay taxes or fees imposed on tobacco products or any permit fees imposed under this subchapter or any other state or local taxes. (h)(1) The board may assess penalties for a violation of § 5-27-227 according to the following schedule: (A) For a first violation within a forty-eight-month period, a civil penalty not to exceed two hundred fifty dollars ($250); (B) For a second violation within a forty-eight-month period, a civil penalty not to exceed five hundred dollars ($500) and suspension of the permit enumerated in § 26-57-219 for a period not to exceed two (2) days; (C) For a third violation within a forty-eight-month period, a civil penalty not to exceed one thousand dollars ($1,000) and suspension of the permit enumerated in § 26-57-219 for a period not to exceed seven (7) days; (D) For a fourth or subsequent violation within a forty-eight-month period, a civil penalty not to exceed two thousand dollars ($2,000) and suspension of the permit enumerated in § 26-57-219 for a period not to exceed fourteen (14) days; and (E) For a fifth or subsequent violation within a forty-eight-month period, in addition to the other penalties provided under this subsection, the permit enumerated in § 26-57-219 may be revoked. (2)(A) A penalty under this subsection shall not be imposed on a retailer or an 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 products, vapor products, alternative nicotine products, e-liquid products, or cigarette papers reasonably relied on proof of age that identified the person receiving the tobacco products, vapor products, alternative nicotine products, e-liquid products, or cigarette papers as not being a minor. (B) As used in this subsection, “proof of age” means valid documentation issued by a governmental agency containing the person's photograph, date of birth, and an expiration date. (3)(A) 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 stated in this subsection, violations of § 5-27-227 by one (1) retail location shall not be accumulated against other retail locations of that same corporation or business. (B) For a retail location, for purposes of the penalty schedule stated in this subsection, 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 unless approved by the board.