§ 59-14-211. Penalties for dealing with prohibited cigarettes -- Private right of action.

(1) A person, regardless of whether the person is a licensee under Section 59-14-202, is guilty of a class B misdemeanor for each instance in which the person knowingly or with reason to know:

(a) sells or distributes cigarettes described under Section 59-14-210;

(b) acquires, holds, owns, possesses, transports, imports, or causes to be imported cigarettes:

(i) described under Section 59-14-210; and

(ii) intended for distribution or sale in the state;

(c) alters the package of any cigarettes prior to their sale or distribution to the ultimate consumer to remove, conceal, or obscure a notice, warning label, or other package information described in Subsection 59-14-210(1)(a); or

(d) affixes a stamp used to pay the tax imposed under Section 59-14-204, Part 3, Tobacco Products, or Part 4, Cigarettes and Tobacco Products, to a package or container of cigarettes:

(i) described under Section 59-14-210;

(ii) known by the person affixing the stamp to be altered as described under Subsection (1)(c); or

(iii) in violation of Section 59-14-604.

(2) If a person knowingly or with reason to know commits an act described in Subsections (1)(a) through (d), the commission shall:

(a) suspend or revoke a license issued to the person under Section 59-14-202; and

(b) regardless of whether the person is licensed under Section 59-14-202, impose a civil penalty in an amount not to exceed the greater of:

(i) 500% of the retail value of the cigarettes; or

(ii) $5,000.

(3) Any person whose commercial interests have been adversely affected as a result of a violation of this section may bring an action for injunctive relief, damages, or both.

(4)

(a) The sale or possession for sale of counterfeit cigarettes by a manufacturer, importer, distributor, or retailer is punishable by a court of law as follows:

(i) a first violation involving a total quantity of less than 100 cartons of cigarettes is punishable by a fine in an amount the greater of $500 or five times the retail value of the cigarettes;

(ii) a subsequent violation involving a total quantity of less than 100 cartons of cigarettes is punishable by:

(A) the greater of a fine of $2,000 or five times the retail value of the cigarettes;

(B) imprisonment not to exceed one year; or

(C) both imprisonment and a fine imposed by this Subsection (4)(a)(ii); and

(D) the revocation by the commission of the manufacturer, importer, distributor, or retailer license for a period of up to two years;

(iii) a first violation involving a total quantity of 100 cartons of cigarettes or more is punishable by:

(A) the greater of a fine of $2,500 or five times the retail value of the cigarettes;

(B) imprisonment not to exceed five years; or

(C) both the fine and imprisonment imposed by this Subsection (4)(a)(iii);

(iv) a second violation involving a quantity of 100 cartons of cigarettes or more is punishable by:

(A) the greater of a fine of $10,000 or five times the retail value of the cigarettes;

(B) imprisonment not to exceed five years; or

(C) both the fine and imprisonment imposed by this Subsection (4)(a)(iv); and

(D) the revocation by the commission of the manufacturer, importer, distributor, or retailer license for a period of up to five years; and

(v) a third and subsequent violation involving a quantity of 100 cartons of cigarettes or more is punishable by:

(A) the greater of a fine of $25,000 or five times the retail value of the cigarettes;

(B) imprisonment not to exceed five years; or

(C) both the fine and imprisonment imposed by this Subsection (4)(a)(v); and

(D) the revocation by the commission of the manufacturer, importer, distributor, or retailer license for a period of up to five years; and

(b) any counterfeit cigarette seized by the commission shall be destroyed.

Amended by Chapter 204, 2005 General Session