H.
B.
4346
(By Mr. Speaker, Mr. Chambers, and Delegates Kessel,
P. White, Rutledge, Spencer, Facemyer and Miller)
[Introduced February 4, 1994; referred to the
Committee on Health and Human Resources then
the Judiciary.]
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 five new sections, designated sections two-a, seven, eight, nine and ten, all relating to discouraging the use and distribution of tobacco products; prohibiting sales or gifts of tobacco products, pipes and cigarette papers to persons under the age of eighteen 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 a vending machine location; lock-out device required; penalty for violation; defense; 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; promulgation of legislative rules by the commissioner of alcoholic beverage control; qualification of a responsible retail dealer; and required training.
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 five new sections, designated sections two-a, seven, eight, nine and ten, 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 ban to eliminate the use of tobacco products by minors. As a basis for this policy, the Legislature hereby finds and accepts the medical evidence that smoking the use of tobacco products and exposure to tobacco smoke may cause causes lung cancer, heart disease, emphysema, and other serious health problems, while the use of smokeless tobacco may cause gum disease, oral cancer and other serious health problems. It is the further intent of the Legislature, in banning eliminating the use of tobacco products by minors, to: (a) Prevent the exposure of young people to the addictive effects of nicotine; (b) ease prevent the personal tragedy of terminal illnesses caused by the use of tobacco products; and (c) eradicate the severe economic loss associated with the use of tobacco; and (d) to provide the state with a citizenry free from the use of tobacco.
§
16
-
9A
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2. Sale or gift of cigarette, cigarette paper, pipe,
cigar, snuff, or chewing tobacco to persons under
eighteen; 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 years:
(a) (1) Any cigarette, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product; or
(b) (2) Any cigar, pipe, snuff, chewing tobacco or tobacco product, in any form.
(b) A person may not 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 conspicuously posting and maintaining a sign near or at the point of sale, near each display of the item and on each vending machine which offers the item or items for sale. The posted sign shall include only the following message:
THE SALE OR GIFT OF TOBACCO PRODUCTS
TO PERSONS UNDER 18 YEARS OF AGE
IS PROHIBITED BY WEST VIRGINIA LAW
(WEST VIRGINIA CODE §16-9A-2)
(c) Any person, firm or corporation violating any of the provisions of subdivisions (a) (1) or (b) (2) 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 of tobacco products by means of vending
machines; location; lock-out device required;
penalty.
No person, firm or corporation shall install or maintain a vending machine to distribute or sell tobacco products within this state, unless:
(1) There is posted on the vending machine, in a conspicuous place, the sign required by section two of this article;
(2) The owner or operator of the vending machine has obtained and posted on the machine the required tobacco products control certificate authorized by this article; and either
(3) The vending machine is located in a bar, or in an area from which minors are excluded by law; or
(4) The vending machine is located in clear view, of the person responsible for supervising the operation of the vending machine, and there is installed on the vending machine a lock-out device which renders the vending machine not operable, unless an activating switch is operated by the attendant responsible for supervising the operation of the vending machine. The operation of the activating switch shall constitute a sale of tobacco products.
Any person, firm or corporation who sells or distributes tobacco products by means of a vending machine in violation of any provision of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined one hundred dollars, and each day of continued operation in violation of this section, after being cited by proper authority, shall constitute a separate offense.
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16
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9A
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3. Purchase, use, or possession of tobacco or tobacco
products by persons under the age of eighteen years;
penalty.
No person under the age of eighteen years shall purchase, or 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 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 magistrate courts have concurrent jurisdiction over violations of the provisions of this section.
Nothing in this article, nor any rule of the commissioner, prevents or prohibits any person who is less than eighteen but at least sixteen years of age from being employed by a certificate holder whose principal business is the sale of food or consumer goods or the providing of recreational activities, including, but not limited to, nationally franchised fast food outlets, family-oriented restaurants, bowling alleys, drug stores, discount stores, grocery stores and convenience stores:
Provided,
That such person does not sell or deliver tobacco, tobacco products or cigarette papers.
Any person under the age of eighteen years who, for the purpose of purchasing tobacco, tobacco products and cigarette papers from a certificate holder, misrepresents his or her age, or who for such purpose presents or offers any written evidence of age which is false, fraudulent or not actually his or her own, or who illegally attempts to purchase tobacco, tobacco products or cigarette papers, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined in an amount not to exceed fifty dollars or shall be imprisoned in the county jail for a period not to exceed seventy-two hours, or both fined and imprisoned, or, in lieu of such fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year.
A person charged with a violation of this section has a complete defense if, at the time the cigarette or other tobacco product or cigarette wrapper was sold, delivered, bartered, furnished or given;
(a) The buyer or recipient provided false evidence that he or she is eighteen years of age or older;
(b) The appearance of the buyer or recipient was such that a prudent person would believe the buyer or recipient to be eighteen years of age or older; and
(c) Such person carefully checked a driver's license or an identification card issued by this state or another state of the United States, a passport, or a United States armed services identification card presented by the buyer or recipient and acted in good faith and in reliance upon the representation and appearance of the buyer or recipient in the belief that the buyer or recipient was eighteen years of age or older.
Any person who requests, persuades or encourages any other person under the age of eighteen to buy or otherwise obtain tobacco, tobacco products or cigarette papers and any person who knowingly buys for, gives to or furnishes tobacco, tobacco products or cigarette papers from any source to anyone under the age of eighteen for the purpose of smoking tobacco or for smoking any other substance is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars or imprisoned in the county or regional jail not more than ten days, or both fined and imprisoned. Nothing herein prohibits the enforcement of this article by appropriate licensing officials or law-enforcement officers.
§
16-9A-7. 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 alcohol beverage control commissioner.
(b) A fee of one thousand dollars is imposed for each tobacco products control certificate for a wholesale business. A fee of fifty dollars is imposed for each tobacco products control certificate for a subjobber business. A fee of fifteen dollars is imposed for each tobacco products control certificate for a retail business. A fee of fifteen dollars is imposed for each tobacco products control certificate for a vending business. All tobacco products control certificate fees collected shall be deposited in a special account in the state treasury to be used by the alcohol beverage control commissioner to administer and enforce the provisions of this article. No political subdivision of this state shall impose an additional fee or tax for the purpose of regulating the sale on distribution of tobacco products.
(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 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 tobacco product from one or more vehicles is required to obtain a separate tobacco products control certificate for each fixed location in this state from which the business is conducted. A copy of the required business certificate shall be carried in each vehicle and publicly displayed.
(d) Any person, seeking a tobacco products control certificate, may apply to the alcohol beverage control commissioner for a certificate. 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. Every certificate shall clearly indicate the address of the fixed business location for which the certificate is applicable. For good cause shown, the director may, at any time, suspend or, after fifteen-days' notice to the holder of a tobacco products control certificate 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 includes, but is not be limited to: (1) The violation of this article or 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; (2) fraud by the applicant or holder; (3) failure by the applicant or holder to pay the fees for the certificates; (4) the proximity of a business location of the applicant or holder to a place or places frequented by persons under eighteen years of age; and (5) 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. Any person or entity continuing to sell tobacco or tobacco products after having their tobacco products control certificate revoked is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than two hundred nor more than two thousand dollars for each separate offense. In addition to the criminal penalty set forth herein, the alcohol beverage control commissioner, 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. Each day of a continuing violation constitutes a separate offense. Nothing in this paragraph may be construed to limit the commissioner from invoking other remedies in the enforcement of this section.
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16-9A-8. Rules; liberal construction.
The alcohol beverage control commissioner shall promulgate necessary rules to implement the provisions of this article. The provisions of this article are to be liberally construed.
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16-9A-9. Report to governor.
The commissioner shall prepare and submit to the governor on the first day of April, one thousand nine hundred ninety-five, and on the same date of each year thereafter, a report suitable for submission by the governor to the secretary of the United States department of health and human services, conforming in form and substance to the requirements of section one thousand nine hundred twenty-six of subpart I of part B of Title XIX of the federal Public Health Service Act (42 U.S.C. 300X-26). The report shall, at a minimum, summarize actions taken to assure enforcement of the provisions of this article, and upon the results of such enforcement.
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16-9A-10. Responsible retail tobacco products dealers;
qualifications; mitigation of disciplinary
penalties.
(a) The Legislature intends to prevent the sale of tobacco products to underage persons and to encourage retail tobacco products dealers to comply with responsible practices in accordance with this section.
(b) To qualify as a responsible retail tobacco products dealer, the dealer must establish and implement procedures designed to ensure that the dealer's employees comply with the provisions of this article. The dealer must provide a training program for the dealer's employees which addresses the use and sale of tobacco products and which includes at least the following topics:
(1) Laws covering the sale of tobacco products;
(2) Methods of recognizing and handling underage customers;
(3) Procedures for proper examination of identification cards in order to verify that customers are not underage;
(4) The use of the age audit identification function on electronic point-of-sale equipment, where available.
(c) In determining penalties under section three of this article, the alcohol beverage control commission may mitigate penalties imposed against a dealer because of an employee's illegal sale of a tobacco product to a person under eighteen years of age if the following conditions are met:
(1) The dealer is qualified as a responsible dealer under this section;
(2) The dealer provided the training program required under subsection (b) to that employee before the illegal sale occurred;
(3) The dealer had no knowledge of that employee's violation at the time of the violation and did not direct, approve or participate in the violation.
(d) The alcohol beverage control commission shall develop and make available a model tobacco products training program designed to ensure adherence to this article by dealers and their employees which, if followed, will qualify dealers as responsible dealers.
NOTE: The purposes of this bill are to: (1) Prohibit the sale or gift of tobacco products to persons under the age of eighteen years; (2) require posting of signs warning against sales of tobacco products to persons under eighteen years of age; (3) requiring lock-out devices and prohibiting the sale or gift of tobacco products, pipes and cigarette papers by or from coin or money activated vending machines to persons under the age of eighteen years; (4) establish a requirement that businesses selling tobacco products first apply for and obtain a tobacco products control certificate from the alcohol beverage control commissioner; (5) establish fees and procedures applicable to the issuance, suspension, revocation and duration of certificates; (6) establish criminal and administrative penalties for violations; (7) provide a funding mechanism for enforcement of this article; (8) authorize the alcohol beverage control commissioner to promulgate rules; and (9) requiring an annual report to the Governor.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§§16-9A-2a, 7, 8, 9 and 10 are new; therefore, strike-throughs and underscoring have been omitted.