H. B. 2435
(By Delegates Kessel, Spencer, Huntwork, Leach,
Petersen, Brum and M. Miller)
[Introduced March 2, 1993; referred to the
Committee on Health and Human Resources then Finance.]
A BILL to amend and reenact sections one, two and three, article
nine-a, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article nine-a by adding thereto three new
sections, designated sections two-a, six and seven, all
relating to discouraging the use and distribution of tobacco
products; raising the minimum age for possessing tobacco
products, pipes and cigarette papers from eighteen to
twenty-one years; prohibiting sales or gifts of tobacco
products, pipes and cigarette papers to persons under the
age of twenty-one years; requiring posting of signs by
businesses selling tobacco products, pipes and cigarette
papers; prohibiting the offer, sale or gift of tobacco
products, pipes and cigarette papers by or from vending
machines activated by the insertion of coins or other
currency; prohibiting the offer, sale or gift to persons
under the age of twenty-one years of tokens for
tobacco-product vending machines; the establishment of
tobacco products control certificates, prohibitions,
application procedures, duration of certificates and
establishment of fees to assist enforcement of article
nine-a, chapter sixteen of said code; the issuance,
suspension, revocation and amendment of such certificates;
violations and criminal penalties; administrative and civil
penalties; and the promulgation of legislative rules by the
commissioner of the bureau of public health.
Be it enacted by the Legislature of West Virginia:
That sections one, two and three, article nine-a, chapter
sixteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that said
article nine-a be further amended by adding thereto three new
sections, designated sections two-a, six and seven, all to read
as follows:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1. Legislative intent.
The Legislature hereby declares it to be the policy and
intent of this state to discourage the use of tobacco products
generally and to ban the use of tobacco products by minors
persons under the age of twenty-one years. As a basis for this
policy, the Legislature hereby finds and accepts the medical
evidence that smoking tobacco may cause causes lung cancer, heart
disease, emphysema and other serious health problems, both in
smokers and nonsmokers exposed to environmental tobacco smoke,while the use of smokeless tobacco may cause causes gum disease,
and oral cancer and other serious health problems. It is the
further the intent of the Legislature in banning the use of
tobacco products by minors persons under the age of twenty-one
years to ease the personal tragedy, to eliminate the nicotine
addiction, and eradicate the severe economic loss associated with
the use of tobacco and to provide the state with a citizenry free
from the use of tobacco.
§16-9A-2. Sale or gift of cigarette, cigarette paper, pipe,
cigar, snuff, or chewing tobacco to persons under
twenty-one; posting of signs required; penalty.
(a) No person, firm or corporation may sell, give or
furnish, or cause to be sold, given or furnished, to any person
under the age of eighteen twenty-one years:
(a) Any cigarette, cigarette paper or any other paper
prepared, manufactured or made for the purpose of smoking any
tobacco or tobacco product; or,
(b) Any cigar, pipe, snuff, chewing tobacco or tobacco
product, in any form.
(b) No person may engage in or prosecute any business
activity, as that term is defined in section two, article twelve,
chapter eleven of this code, involving the sale, transfer or
distribution of any cigarette, cigar, pipe, snuff, chewing
tobacco, other tobacco product in any form, cigarette paper or
any other paper prepared, manufactured or made for the purpose of
smoking tobacco or of smoking any other substance without firstposting, and keeping posted, a conspicuous sign at or near each
display of such item and on or upon each vending machine which
offers such items or items for sale, which sign states, in red
letters, at least one inch (1") in height, on a white background,
the following message:
THE SALE, TRANSFER, DISTRIBUTION OR GIFT OF
CIGARETTES, CIGARS, PIPES, SNUFF, CHEWING
TOBACCO OTHER TOBACCO PRODUCTS, AND CIGARETTE
PAPERS TO PERSONS UNDER 21 YEARS OF AGE, AND
THE POSSESSION OR USE OF SUCH PRODUCTS BY
PERSONS UNDER 21 YEARS OF AGE, ARE
PROHIBITED BY WEST VIRGINIA LAW.
(c) Any person, firm or corporation violating any of the
provisions of subdivisions (a) or (b) of this section is guilty
of a misdemeanor, and, upon conviction thereof, shall be fined
not less than ten twenty nor more than twenty-five one hundred
dollars for the first offense, and for each subsequent offense,
not less than twenty-five fifty nor more than three hundred
dollars.
§16-9A-2a. Sale or gift of tobacco products by coin-activated
vending machines prohibited; sale or gift of tokens
for tobacco vending machines to persons under the
age of twenty-one years prohibited; penalty.
(a) No person, firm or corporation may offer, sell, give or
furnish, or cause to be offered, sold, given or furnished, any
cigarette, cigar, pipe, snuff, chewing tobacco, other tobacco
product in any form, cigarette paper or any other paper prepared,
manufactured or made for the purpose of smoking tobacco or of
smoking any other substance, by or from a vending machine that isin any way activated by the insertion of coins or other currency.
The provisions of this paragraph shall not be construed to
prohibit the offering, selling, giving or furnishing of such
items by or from vending machines that are activated solely by
the insertion of nonmonetary tokens or other nonmonetary devices.
(b) No person, firm or corporation may offer, sell, give or
furnish any person under the age of twenty-one years any
nonmonetary token or tokens or other nonmonetary devices that are
designed or intended to be inserted into, and thereby to
activate, any vending machine containing any quantity of
cigarettes, cigars, pipes, snuff, chewing tobacco in any form,
cigarette paper or any other paper prepared, manufactured or made
for the purpose of smoking tobacco or of smoking any other
substance.
(c) Any person, firm or corporation violating any provision
of this section is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than twenty nor more than one
hundred dollars for the first offense, and, for each subsequent
offense, shall be fined not less than fifty nor more than three
hundred dollars.
§16-9A-3. Use or possession of tobacco or tobacco products by
persons under the age of twenty-one years; penalty.
No person under the age of eighteen twenty-one years shall
have on or about his or her person or premises or use any
cigarette, cigarette paper or any other paper prepared,
manufactured or made for the purpose of smoking any tobaccoproducts, in any form; or, any pipe, snuff, chewing tobacco or
tobacco product. Any person violating the provisions of this
section is punishable by a fine of five dollars and guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than twenty dollars nor more than one hundred dollars.
Notwithstanding the provisions of section one, article five,
chapter forty-nine, the magistrate court shall have concurrent
jurisdiction over such offense.
§16-9A-6. Tobacco products control certificate required;
prohibitions; application procedure; duration of
certificate; fees for certificates to assist
enforcement of article; issuance, suspension,
revocation and amendment; violations; criminal
and administrative penalties.
(a) In addition to complying with the provisions of article
twelve, chapter eleven of this code, no person may engage in or
prosecute, in the state of West Virginia, any business activity,
as that term is defined in section two, article twelve, chapter
eleven of this code, involving the sale, transfer or distribution
of any cigarette, cigar, pipe, snuff, chewing tobacco, other
tobacco product in any form, cigarette paper or any other paper
prepared, manufactured or made for the purpose of smoking tobacco
or of smoking any other substance, without first having obtained
a tobacco products control certificate from the commissioner of
the bureau of public health.
(b) A fee of one hundred dollars shall be imposed for eachtobacco products control certificate. The fees shall be
deposited in a special account for the bureau of public health.
The funds in that account shall be used to enable the
commissioner of the bureau of public health to administer and
enforce the provisions of this article.
(c) A separate tobacco products control certificate is
required for each fixed business location from which the sale,
transfer or distribution of any item set forth in the subsection
(a) of this section is offered to the public as a class, or to a
limited portion thereof, or at which customer accounts may be
opened, closed or serviced. A separate tobacco products control
certificate is not required for each vending machine. However,
a separate certificate is required for each location from which
one or more vending machines available to the public constitute
a business activity. Any business that sells, transfers or
distributes any such item from or out of one or more vehicles
needs a separate tobacco products control certificate for each
fixed location in this state from or out of which such business
is conducted. A copy of that business certificate shall be
carried in each vehicle and publicly displayed while such
business is conducted from or out of the vehicle.
(d) Any person, as that term is defined in section two,
article twelve, chapter eleven of this code, seeking a tobacco
products control certificate may make an application to the
commissioner of the bureau of public health for a certificate on
a form prescribed by the director. Every tobacco productscontrol certificate shall be issued for a period of not more than
one year and shall terminate on the thirtieth day of June of the
fiscal year in which the period begins. The commissioner may
issue the requested certificate or may, for good cause shown,
refuse to issue it or issue it with restrictions. Every
certificate shall clearly indicate the address of the fixed
business location to which said certificate applies. For good
cause shown, the director may, at any time, suspend or, after
fifteen days' notice to the holder and an opportunity for the
holder to request a hearing, revoke or reduce the scope of a
certificate. In a hearing on the suspension, revocation,
amendment or refusal to issue a certificate, the applicant for,
or holder of, a certificate must demonstrate by a preponderance
of the evidence that the commissioner lacked good cause for
suspending, revoking, amending or refusing to issue the
certificate in question. Good cause shall include, but not be
limited to, the violation of this article or of rules promulgated
by the commissioner, by the applicant for, or holder of, one or
more certificates, or by an officer, director or major
stockholder thereof; fraud by the applicant or holder; failure by
the applicant or holder to pay the fees for the certificates; the
proximity of a business location of the applicant or holder to a
place or places frequented by minors and other good cause.
(e) Any person who violates the provisions of subsection (a)
of this section is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than one hundred nor more thanone thousand dollars for each separate offense. In addition to
the criminal penalty set forth herein, the commissioner of the
bureau of public health, after hearing or the opportunity to be
heard, may also, or in the alternative, impose an administrative
penalty of not more than one thousand dollars for each separate
offense on any person who violates subsection (a) of this
section. Payments of the administrative penalties shall be
deposited in the special account established in subsection (b) of
this section and used in the manner set forth in that subsection.
Each day of a continuing violation constitutes a separate
offense. Nothing in this paragraph shall be construed to limit
the commissioner from invoking other remedies in the enforcement
of this section.
§16-9A-7. Rules; liberal construction.
The commissioner of the bureau of public health shall
promulgate any rules that may facilitate the enforcement of this
article. This article is to be liberally construed.
NOTE: The purpose of this bill is to expand the scope of
the legislative intent in the first section of this article, to
raise the minimum age for use and possession of tobacco products
from eighteen to twenty-one years, to prohibit the sale or gift
of tobacco products to persons under the age of twenty-one years;
to require posting of appropriate signs; to increase the
penalties for violations; to prohibit the sale or gift of tobacco
products, pipes, and cigarette papers by or from coin-activated
vending machines; to prohibit the sale or gift of tokens for
tobacco vending machines to persons under the age of twenty-one
years, to establish penalties for violations, to discourage the
use of tobacco; to establish a requirement that businesses that
sell tobacco products first apply for and obtain a tobacco
products control certificate from the commissioner of the bureauof public health; to establish the fees and procedures applicable
to the issuance, suspension, revocation, amendment and duration
of such certificates, to establish criminal and administrative
penalties for violations; to provide a funding mechanism for
enforcement of this article; to authorize the commissioner of the
bureau of public health to promulgate rules to facilitate the
enforcement of this article; and to provide for the liberal
construction of this article.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§16-9A-2a, 6 and 7 are new; therefore, strike-throughs and
underscoring have been omitted.