Senate Bill No. 252

(By Senators Walker and Holliday)

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[Introduced March 2, 1993; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]

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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 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 said article; 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 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-oneyears 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 first posting, 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 is in 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 bythe 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 tobacco products, 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 notless 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 each tobacco 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 products control 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. Everycertificate 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 than one 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 separateoffense 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 bureau of 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 languagethat would be added.

§§16-9A-2A, 6 and 7 are new; therefore, strike-throughs and underscoring have been omitted.