H. B. 4141

         (By Delegates Hamilton, Miller, Storch, Ferro,

           A. Evans, Azinger, Lynch, Ambler, Canterbury,

                    Iaquinta and Marshall)

         [Introduced January 14, 2014; referred to the

Committee on Health and Human Resources then the Judiciary.]

A BILL to repeal §47-19-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §47-19-1, §47-19-3, §47-19-4 and §47-19-5 of said code, all relating to licenses to sell paraphernalia for use with controlled substances; terminating the tax commissioner's authority to issue business licenses to sell paraphernalia for use with controlled substances; revoking licenses previously issued by the Tax Commissioner; clarifying the definition of drug paraphernalia; requiring the continued retention of transaction records after the revocation of licensed authority; rule-making authority; effective date; and criminal penalties.

Be it enacted by the Legislature of West Virginia:

    That §47-19-2 of the Code of West Virginia, 1931, as amended, be repealed; and that §47-19-1, §47-19-3, §47-19-4 and §47-19-5 of said code be amended and reenacted, all to read as follows:

ARTICLE 19. DRUG PARAPHERNALIA.

§47-19-1. Items designed or marketed for use with controlled substances; license required.

    On and after July 1, 2014, it shall be is unlawful for any person or persons as principal, clerk, agent or servant to sell any items, effect, paraphernalia, accessory or thing in this state which is designed or marketed for use with controlled substances, as defined in chapter sixty-a of this code. without obtaining a license therefor from the State Tax Commissioner. Such licenses shall be in addition to any or all other licenses held by applicant. The fee for such license shall be $150. Any license issued by the State Tax Commissioner authorizing the sale of drug paraphernalia in this state pursuant to the provisions of this article prior to July 1, 2014 is void and of no effect.

§47-19-3. Drug paraphernalia defined.

    (a) The following items, if marketed for use or designed for the use with controlled substances, are considered drug paraphernalia for the purpose stated in section one of this article:

    (1) Kits marketed for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

    (2) Kits marketed for use, or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;

    (3) Isomerization devices marketed for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;

    (4) Testing equipment marketed for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances;

    (5) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;

    (6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, marketed for use, or designed for use in cutting controlled substances;

    (7) Separation gins and sifters marketed for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

    (8) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;

    (9) Capsules, balloons, envelopes and other containers marketed for use, or designed for use in packaging small quantities of controlled substances;

    (10) Hypodermic syringes, needles and other objects marketed for use, or designed for use in parenterally injecting controlled substances into the human body;

    (11) Paper of colorful design, with names oriented for use with controlled dangerous substances and displayed: Provided, That white paper or tobacco oriented paper not necessarily designed for use with controlled substances is not covered;

    (12) Pipes displayed in the proximity of roach clips, or literature encouraging illegal use of controlled substances, are covered by this article: Provided, That pipes otherwise displayed are not covered by this article;

    (13) Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;

    (14) Miniature cocaine spoons, and cocaine vials; or

    (15) Chillums or bongs.

    (b) In determining whether an object is marketed for use or designed for use as drug paraphernalia, the State Tax Commissioner or other authority should consider the following:

    (1) The proximity of the object, in time and space, to a controlled substance;

    (2) The existence of any residue of controlled substances on the object;

    (3) Instructions, oral or written, provided with the object concerning it use;

    (4) Descriptive materials accompanying the object which explain or depict its use;

    (5) National and local advertising concerning its use;

    (6) The manner in which the object is displayed for sale;

    (7) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

    (8) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

    (9) The existence and scope of legitimate uses for the object in the community.

    (c) The following items are not items sold or marketed as drug paraphernalia:

    (1) An item which is sold in the normal lawful course of business and intended for use with tobacco products, including any pipe, paper or accessory; and

    (2) Any item which is sold in the normal lawful course of business and intended for use pursuant to a valid prescription issued by a doctor, physician or licensed medical practitioner.

§47-19-4. Records.

    Every licensee must keep entity which was issued a license by the State Tax Commissioner to sell drug paraphernalia prior to July 1, 2014 shall continue to keep and retain a record of every item, effect, paraphernalia, accessory or thing which is designed or marketed for use with controlled substances which is it sold, and this record shall be open to the inspection of any police officer at any time during the hours of business. Such The record shall contain the name and address of the purchaser, the name and quantity of the product, the date and time of the sale, and the licensee or agent of the licensee's signature. Such The records shall be retained for not less than two years.

§47-19-5. Regulations Rules.

    The applicant shall comply with all definition of drug paraphernalia, as contained in the applicable rules of the State Tax Commissioner, promulgated continue to be in effect, until revised. The State Tax Commissioner is granted authority to promulgate emergency rules and propose rules for legislative approval to effectuate the revisions to this article, pursuant to the provisions of article three, chapter twenty-nine-a of this code.

    NOTE: The purpose of this bill is to repeal the statutory provision which authorizes the State Tax Commissioner to issue business licenses for the purpose of selling drug paraphernalia, to void licenses already issued and to prohibit the sales sales on and after July 1, 2014.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.