(1) (a) (I) Subject to the fine limitations contained in section 44-7-106, the division, on its own motion or on a complaint from another governmental agency responsible for the enforcement of laws relating to the prohibition of the sale of cigarettes, tobacco products, or nicotine products to minors, may penalize retailers for violations of this article 7.
(II) The division, in the name of the people of the state of Colorado and through the attorney general of the state of Colorado, may apply for an injunction in any court of competent jurisdiction to enjoin any person from committing an act prohibited by this article 7. If the division establishes that the defendant has been or is committing an act prohibited by this article 7, the court shall enter a decree enjoining the defendant from further committing the act. An injunctive proceeding may be brought pursuant to this article 7 in addition to, and not in lieu of, penalties and other remedies provided in this article 7 and the rules promulgated pursuant to this article 7 or otherwise provided by law.
(b) In addition to any other sanctions prescribed by this article 7 or rules promulgated pursuant to this article 7, the division may, after investigation and a public hearing at which a retailer must be afforded an opportunity to be heard, fine a retailer or, if the retailer holds a state license, suspend or revoke the retailer's state license for a violation of this article 7 or any rule promulgated pursuant to this article 7 committed by the retailer or by any agent or employee of the retailer.
(2) (a) A retailer accused of violating this article 7 or any rule promulgated pursuant to this article 7 is entitled to written notice of the time and place of the hearing personally delivered to the retailer at the actual retail location or mailed to the retailer at the last-known address as shown by the records of the division. The retailer is also entitled to be represented by counsel, to present evidence, and to cross-examine witnesses.
(b) A retailer that does not claim an affirmative defense pursuant to section 44-7-106 (2) may waive its right to a hearing and pay the appropriate fine.
A hearing pursuant to this section shall be conducted at a location designated by thedivision before a hearing officer. The hearing officer may administer oaths and issue subpoenas to require the presence of persons and the production of documents relating to any alleged violation of this article 7 or any rule promulgated pursuant to this article 7.
If the hearing officer finds, by a preponderance of the evidence, that the retailerviolated this article 7 or any rule promulgated pursuant to this article 7, the hearing officer may issue a written order to suspend or revoke the retailer's state license or to levy a fine against the retailer in accordance with section 44-7-106.
The decision of the hearing officer is a final agency action. Any appeal of the decision of the hearing officer shall be filed with a district court of competent jurisdiction.
Any unpaid fine levied pursuant to this section, together with reasonable attorneyfees, may be collected in a civil action filed by the attorney general.
The division shall forward any fines collected for violations of this article 7 or anyrule promulgated pursuant to this article 7 to the state treasurer, who shall credit them to the cigarette, tobacco product, and nicotine product use by minors prevention fund created in section 44-7-107.
Nothing in this section or section 44-7-106 prohibits a local government from imposing sanctions on a retailer for a violation of a local ordinance or resolution.
Source: L. 2018: Entire article added with relocations, (SB 18-036), ch. 34, p. 375, § 2, effective October 1. L. 2020: Entire section amended, (HB 20-1001), ch. 302, p. 1513, § 11, effective July 14.
Editor's note: (1) This section is similar to former § 24-35-505 as it existed prior to 2018.
(2) Section 19 of chapter 302 (HB 20-1001), Session Laws of Colorado 2020, provides that the act changing this section applies to offenses committed on or after July 14, 2020. 44-7-106. Limitation on fines. (1) (a) For a violation of section 44-7-103 (1), the penalty is as follows:
A fine in an amount of at least two hundred fifty dollars but not more than fivehundred dollars for a first violation committed within a twenty-four-month period;
A fine in an amount of at least five hundred dollars but not more than seven hundredfifty dollars for a second violation within a twenty-four-month period and a prohibition against the retailer selling cigarettes, tobacco products, or nicotine products at the retail location at which the violation occurred for at least seven days following the date that the fine is imposed;
A fine in an amount of at least seven hundred fifty dollars but not more than onethousand dollars for a third violation within a twenty-four-month period and a prohibition against the retailer selling cigarettes, tobacco products, or nicotine products at the retail location at which the violation occurred for at least thirty days following the date that the fine is imposed; and
A fine in an amount of at least one thousand dollars but not more than fifteenthousand dollars for a fourth or subsequent violation within a twenty-four-month period and a prohibition against the retailer selling cigarettes, tobacco products, or nicotine products at the retail location at which the violation occurred for up to three years following the date that the fine is imposed.
(b) For a violation of section 44-7-103 (4), the penalty is as follows:
A written warning for a first violation committed within a twenty-four-month period;
A fine of two hundred fifty dollars for a second violation within a twenty-fourmonth period;
A fine of five hundred dollars for a third violation within a twenty-four-month period;
A fine of one thousand dollars for a fourth violation within a twenty-four-monthperiod; and
A fine of at least one thousand dollars but not more than fifteen thousand dollars fora fifth or subsequent violation within a twenty-four-month period.
(c) (I) On or after July 1, 2021, a person who sells or offers to sell cigarettes, tobacco products, or nicotine products without a valid state license issued pursuant to this section is subject to the following civil fines for each retail location at which the person sells or offers to sell cigarettes, tobacco products, or nicotine products without a valid state license:
One thousand dollars for the first violation;
Two thousand dollars for the second violation within twenty-four months; and
Three thousand dollars for the third or subsequent violation within twenty-four months.
Each sale of or offer to sell cigarettes, tobacco products, or nicotine products withouta valid state license is a distinct violation of this section subject to a fine.
If the division finds that a retailer has violated this subsection (1)(c) three timeswithin twenty-four months, the division shall issue the retailer an order prohibiting the retailer from selling cigarettes, tobacco products, or nicotine products, which order renders the retailer ineligible to apply for a state license for three years following the date of the order.
The fine amounts set forth in subsection (1)(c)(I) of this section also apply to violations of section 44-7-104.7 (2) and (3).
(2) Notwithstanding subsection (1) of this section, a fine for a violation of section 44-7103 (1) shall not be imposed upon a retailer that can establish an affirmative defense to the satisfaction of the division or the hearing officer that, prior to the date of the violation, it:
Had adopted and enforced a written policy against selling cigarettes, tobacco products, or nicotine products to persons under twenty-one years of age;
Had informed its employees of the applicable laws regarding the sale of cigarettes,tobacco products, or nicotine products to persons under twenty-one years of age;
Required employees to verify the age of cigarette, tobacco product, or nicotine product customers by way of photographic identification; and
Had established and imposed disciplinary sanctions for noncompliance.
The affirmative defense established in subsection (2) of this section may be used by aretailer only once at each location within any twenty-four-month period.
(a) (I) The penalty for a violation of section 44-7-103 (2) or (4.5) is a fine of twentyfive dollars for a first violation committed within a twenty-four-month period.
(II) The penalty for a violation of section 44-7-103 (3) is a written warning for a first violation committed within a twenty-four-month period.
(b) For a violation of section 44-7-103 (2), (3), or (4.5), the penalty is as follows:
A fine of fifty dollars for a second violation within a twenty-four-month period;
A fine of one hundred dollars for a third violation within a twenty-four-month period;
A fine of two hundred fifty dollars for a fourth violation within a twenty-fourmonth period; and
A fine of at least two hundred fifty dollars but not more than one thousand dollarsfor a fifth or subsequent violation within a twenty-four-month period.
(5) Notwithstanding subsection (3) of this section, a licensed gaming establishment as defined in section 44-30-103 (18) that has a cigar-tobacco bar, as defined in section 25-14-203 (4), on July 14, 2020, shall be afforded two affirmative defenses within a twenty-four-month period.
Source: L. 2018: Entire article added with relocations, (SB 18-036), ch. 34, p. 375, § 2, effective October 1. L. 2020: Entire section amended, (HB 20-1001), ch. 302, p. 1514, § 12, effective July 14.
Editor's note: (1) This section is similar to former § 24-35-506 as it existed prior to 2018.
(2) Section 19 of chapter 302 (HB 20-1001), Session Laws of Colorado 2020, provides that the act changing this section applies to offenses committed on or after July 14, 2020.