Senate Bill No. 448
(By Senators Chafin, Bowman, Dittmar, Love,

Miller, Bailey, Schoonover, Wagner, Wiedebusch, Deem and Kimble)
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[Introduced February 19,1996; referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.]
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A BILL to amend chapter sixteen of the code of West Virginia,one

thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article nine-b, relating to prevention of youth access to tobacco act; purpose; definitions; retail sale licenses; vending machine sales; distribution of samples; out-of-package sales; display restrictions; minors; signs; employees; suspension, revocation, denial and nonrenewal of licenses; unannounced inspections; reporting and compliance; statewide uniformity; severability; and effective date.

Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article nine-b, to read as follows:
ARTICLE 9B. PREVENTION OF YOUTH ACCESS TO TOBACCO ACT.
§16-9B-1. Title.
This article shall be known and may be cited as the "Prevention of Youth Access to Tobacco Act of 1996."
§16-9B-2. Legislative intent.
The purpose of this article is to reduce the access of persons under the age of eighteen years to tobacco products by establishing a system for the licensing of persons who sell tobacco products at retail (either over-the-counter or by vending machines), strengthening existing prohibitions against the sale and distribution of tobacco products to persons under the age of eighteen years, prohibiting the purchase or receipt of tobacco products by such persons, limiting the sale of tobacco products through vending machines and prohibiting the distribution of tobacco product samples in or on any public street, sidewalk or park that is within five hundred feet of any playground, school or other facility when the facility is being used primarily by persons under the age of eighteen years, prohibiting the sale of cigarettes and smokeless tobacco products other than in unopened packages, requiring that tobacco products sold over the counter be maintained within the sight or under the direct control of a sales clerk, providing for training of retail sales clerks and random, unannounced inspections of locations where tobacco products are sold or distributed, providing for the report required to be submitted to the United States department of health and human services pursuant to Section 1926 of the Public Health Service Act (42 U.S.C. 300x-26), and ensuring uniform regulations for the sale, distribution, display, use, advertising and promotion of tobacco products within this state.
§16-9B-3. Definitions.
(a) "Agency" means the alcohol beverage control commission (the agency vested with licensing authority under this article).
(b) "Distribute" means to sell, furnish, give or provide tobacco products,including tobacco product samples, to the ultimate consumer.
(c) "Person" means an individual, partnership, copartnership, firm, company, public or private corporation, association, joint stock company, trust, estate, political subdivision or any agency, board, department or bureau of the state or federal government, or any other legal entity which is recognized by law as the subject of rights and duties.
(d) "Proof of age" means a driver's license or other documentary or written evidence that purports to establish that the person is eighteen years of age or older.
(e) "Public place" means any public street, sidewalk or park or any area open to the general public in any publicly owned and operated building.
(f) "Sample" means a tobacco product distributed to members of the general public at no cost for the purpose of promoting the product.
(g) "Sampling" means the distribution of samples to members of the general public in a public place.
(h) "Tobacco product" means any product that contains tobacco and is intended for human consumption.
(i) "Vending machine" means any mechanical, electric or electronic self-service device which, upon insertion of money, tokens or any other form of payment, automatically dispenses tobacco products.
§16-9B-4. Retail sale licenses.
(a) No person shall engage in the retail sale of tobacco products over the counter or through any vending machine on or after the first day of October, one thousand nine hundred ninety- six, unless the person is authorized to do so by a license issued pursuant to this section, or is an employee or agent of a person who has been issued a license pursuant to this section. For purposes of this section, the person deemed to be engaged in the retail sale of tobacco products through a vending machine shall be the owner of the business establishment in which the vending machine is located.
(b) The annual license fee for the retail sale of tobacco products is as follows:
(1) Twenty dollars for each place of business where tobacco products are sold over the counter at retail. A separate license shall be required for each place of business where tobacco products are sold over the counter at retail.
(2) Twenty dollars for each vending machine. A separate license shall be required for each vending machine through which tobacco products are sold.
(c) Every application for a license under this section shall be made upon a form provided by the agency and shall set forth the name under which the applicant transacts or intends to transact business, the location of the place of business or vending machine for which the license is to be issued, and any other identifying information that the agency may require.
(d) Every license issued by the agency pursuant to this section shall be valid for one year from the date of issuance and shall be renewed upon application except as otherwise provided in this article. Upon notification of a change of address if required by the agency, a license shall be reissued for the new address without the filing of a new application.
(e) On or before the first day of July, one thousand nine hundred ninety-six, the agency shall notify every person in this state who engages in the retail sale of tobacco products, including retail sale through vending machines, of the license requirements imposed by this section.
(f) The agency shall issue a license or renewal of a license within thirty days of receiving a properly completed application and the applicable license fee. A license or renewal thereof shall not be withheld or denied except pursuant to section twelve: Provided, That: (1) No license shall be issued for the sale of tobacco products through a vending machine that dispenses any product in addition to tobacco products; and (2) no license shall be issued for the sale of tobacco products through a vending machine unless the applicant certifies compliance with the restrictions set forth in subsection (a), section five of this article, with respect to the machine for which the license is issued. No terms or conditions shall be imposed for the issuance, maintenance or renewal of a license except as specified in this article.
(g) A person who engages in the retail sale of tobacco products without a license as required by this section, or after a license issued pursuant to this section has been suspended or revoked, is subject to an action brought by the agency in the municipality in which the sale occurs. The violation shall be punishable by a civil penalty of one hundred dollars for a first violation within a two-year period and two hundred dollars for a second or subsequent violation within a two-year period. No person shall be liable for more than one violation per day.
(h) A license issued under this section is not assignable and is valid only for the person in whose name it is issued and for the place of business or vending machine designated therein. No license shall be required, and no fee shall be specified, for the retail sale of tobacco products, other than the license required and the fee specified, under this section. (License fees shall not be raised except by act of the Legislature).
§16-9B-5. Vending machine sales.
(a) It shall be unlawful for any person to sell tobacco products through a vending machine unless the vending machine is located:
(1) In areas of factories, business, offices or other places that are not open to the public;
(2) In places that are open to the public but to which persons under the age of eighteen years are denied access:
(3) In places where alcoholic beverages are sold for consumption on the premises, but only if the vending machine: (A) Is under the continuous supervision of the owner or lessee of the premises or an employee thereof; and (B) is inaccessible to the public when the establishment is closed; and
(4) In other places, but only if the machine: (A) Is under the continuous supervision of the owner or lessee of the premises or an employee thereof; and (B) can be operated only by the activation of an electronic switch by the owner or lessee of the premises or an employee thereof prior to each purchase or by the use of tokens provided by the owner or lessee of the premises or an employee thereof prior to each purchase; and (C) is inaccessible to the public when the establishment is closed.
(b) In any place where supervision of a vending machine, or activation of an electronic switch or sale of a token, is required by subsection (a) of this section, the person responsible for that supervision or the activation of the switch or the sale of a token, shall demand proof of age from a prospective purchaser if such person has reason to believe that the prospective purchaser is under eighteen years of age.
(c) A person who maintains a tobacco product vending machine in violation of subsection (a) of this section, or fails to demand proof of age as required by subsection (b) of this section, is subject to an action brought by the attorney for the municipality in which the vending machine is maintained. Such violation shall be punishable by a civil penalty of one hundred dollars.
§16-9B-6. Distribution of samples.
(a) It shall be unlawful for any person to distribute tobacco product samples in or on any public street sidewalk or park that is within five hundred feet of any playground, school or other facility when the facility is being used primarily by persons under the age of eighteen years.
(b) A person engaged in sampling shall demand proof of age from a prospective recipient if such person has reason to believe that the prospective recipient is under eighteen years of age.
(c) A person who distributes tobacco product samples in violation of subsection (a) of this section, or fails to demand proof of age as required by subsection (b) of this section, is subject to an action brought by the attorney for the municipality in which the distribution occurs. The violation shall be punishable by a civil penalty of one hundred dollars. Proof that the defendant demanded, was shown, and reasonably relied upon proof of age shall be a defense to any action brought pursuant to this section.
§16-9B-7. Out-of-package sales.
(a) It shall be unlawful for any person to sell cigarettes or smokeless tobacco products other than in an unopened package originating with the manufacturer that bears the health warning required by federal law.
(b) A person who sells a cigarette or smokeless tobacco product in violation of this section is subject to an action brought by the attorney for the municipality in which the sale occurs. The violation shall be punishable by a civil penalty of one hundred dollars.
§16-9B-8. Display restrictions.
(a) It is unlawful for a retailed to maintain tobacco products in a retail establishment in any place that is not within the line of sight, or under the direct control, of a cashier or other employee of such retailer during regular business hours. For purposes of this subsection, a location monitored by electronic means in a manner that enables the cashier or other employee to view the location shall be deemed to be within the line of sight of the cashier or other employee.
(b) Subsection (a) of this section does not apply to tobacco products offered for sale in: (1) Any place of business to which persons under the age of eighteen years are not admitted or to which such persons are not admitted unless accompanied by a parent or other adult; and (2) vending machines.
(c) A person who violates subsection (a) of this section is subject to an action brought by the attorney for the municipality in which the violation occurs. Such violation shall be punishable by a civil penalty of one hundred dollars for the first offense within a two-year period, two hundred fifty dollars for a second offense within a two-year period, and five hundred dollars for a third or subsequent offense within a two-year period.
§16-9B-9. Minors.
(a) Sale or distribution to minors.
(1) Prohibition. -- It shall be unlawful for any person to sell or distribute any tobacco product to another person who has not attained the age of eighteen years or to purchase a tobacco product on behalf of any person: Provided, That it shall not be unlawful to distribute a tobacco product to a family member or a personal acquaintance for noncommercial purposes, or to an employee when required in the performance of the employee's duties.
(2) Proof of age. -- A person engaged in the sale or distribution of tobacco products shall demand proof of age from a prospective purchaser or recipient if such person has reason to believe that the prospective purchaser or recipient is under eighteen years of age.
(3) Penalties. -- (A) A person who violates subdivision (1) or (2) of this subsection shall be charged with a misdemeanor, and, upon conviction thereof, shall be punishable by a fine of one hundred dollars for the first offense within a two-year period, two hundred fifty dollars for a second offense within a two-year period, and five hundred dollars for a third or subsequent offense within a two-year period. Proof that the defendant demanded, was shown, and reasonably relied upon proof of age shall be a defense to any action brought pursuant to this section.
(B) If the sale is made by an employee of the owner of a store at which tobacco products are sold at retail, the employee shall be guilty of the violation and be subject to the penalty. If the sale is made through a vending machine, the proprietor of the establishment where the machine is located shall be guilty of the violation and be subject to the penalty: Provided, That if the proprietor has made an employee responsible for supervising the machine, the employee shall be guilty of the violation and be subject to the penalty. If the tobacco product is distributed by an employee engaged in the business of sampling, the employee shall be guilty of the violation and be subject to the penalty.
(C) For purposes of determining the liability of a person controlling franchises or business operations in multiple locations for a second or subsequent violation of this subsection, each individual franchise or business location shall be deemed a separate entity.
(b) Purchase of receipt by minors. --
(1) Prohibition. -- It shall be unlawful for a person who has not attained eighteen years of age to purchase or accept receipt of a tobacco product, or to present or offer to any person any purported proof of age which is false, fraudulent or not actually his or her own, for the purpose of purchasing or receiving any tobacco product: Provided, That it shall not be unlawful for such a person to accept receipt of a tobacco product from a family member, from a personal acquaintance or from an employer when required in the performance of such person's duties.
(2) Penalties. -- A person who violates subsection (a) of this section shall be charged with a misdemeanor, and, upon conviction thereof, shall be punishable by a fine of fifty dollars or twenty-five hours of community service work for a first offense within a one-year period, and a civil penalty of fifty dollars and fifty hours of community service work for a second or subsequent offense within a one-year period.
§16-9B-10. Signs.
(a) On or after the first day of October, one thousand nine hundred ninety-six, every person who sells tobacco products at retail over the counter shall post conspicuously and keep so posted at the place of business a sign, no smaller than ninety- three and one-half square inches, so as to ensure that it is likely to be read at each point of sale, stating the following:
STATE LAW STRICTLY PROHIBITS
THE SALE OF TOBACCO PRODUCTS TO
PERSONS UNDER THE AGE OF 18 YEARS
PROOF OF AGE MAY BE REQUIRED

(b) Failure to post the sign as required by subsection (a) of this section shall be punishable by a civil penalty of twenty-five dollars for the first offense within a two-year period and seventy-five dollars for each succeeding offense within a two-year period. No notice regarding tobacco products, other than the notice required by this subsection, shall be required to be posted or maintained in any store that sells tobacco products at retail.
§16-9B-11. Employees.
(a) Every person engaged in the business of selling tobacco products at retail shall notify each individual employed by that person as a retail sales clerk that state law: (1) Prohibits the sale or distribution of tobacco products to any person under eighteen years of age and the purchase or receipt of tobacco products by any person under eighteen years of age and out-of- package sales of cigarettes and smokeless tobacco products; and (2) requires that proof of age be demanded from a prospective purchaser or recipient if the person engaged in sale or distribution of tobacco products has reason to believe that the prospective purchaser or recipient is under eighteen years of age. This notice shall be provided before the individual commences work as a retail sales clerk, or, in the case of an individual employed as a retail sales clerk on the date when this section becomes effective, within thirty days of that date. The individual shall signify that he or she has received the notice required by this section by signing a form stating as follows:
"I understand that state law prohibits the sale or
distribution of tobacco products to persons under
eighteen years of age and out-of-package sales of
cigarettes and smokeless tobacco products, and
requires that proof of age be demanded from a
prospective purchaser or recipient if I have reason
to believe that the prospective purchaser or recipient
is under eighteen years of age. I promise, as a
condition of amy employment, to observe this law."

Each form signed by such individual shall indicate the date of signature. The employer shall retain the form signed by each individual employed as retail sales clerk until one hundred twenty days after the individual has left the employer's employ.
(b) Any employer failing to comply with the requirements of this section with respect to any employee shall be guilty of a misdemeanor, and, upon conviction thereof, be punished by a fine of one hundred dollars for the first offense within a two-year period and two hundred dollars for each succeeding violation of this provision within a two-year period, or by imprisonment for not more than thirty days.
§16-9B-12. Suspension, revocation, denial, and nonrenewal of
licenses.
(a) Upon finding that a licensee, or an employee or agent of the licensee, has been determined by courts of competent jurisdiction to have committed during the license term three or more violations of this article involving the same place of business or vending machine for which the license was issued, the agency shall notify the licensee in writing, served personally or by mail, that any subsequent violation thereof during the license term may result in an administrative action to suspend the license for a period not to exceed thirty days.
(b) Upon finding that a further violation has occurred during the license term notwithstanding the notice provided under subsection (a) of this section, involving the same place of business or vending machine for which the license was issued, the agency may initiate an administrative action to suspend the license. If an administrative action is initiated, the agency shall immediately notify the licensee in writing of the initiation of the action and the reasons therefor, and permit the licensee an opportunity, at least fourteen days after written notice is served personally or by mail upon the licensee, to show why suspension of the license would be unwarranted or unjust.
(c) The agency may initiate an administrative action to revoke a license that previously has been suspended under subsection (b) of this section if during the license term a further violation of this article is committed involving the same place of business or vending machine for which the license was issued. If an administrative action is initiated, the agency shall immediately notify the licensee in writing of the initiation of the action and the reasons therefor, and permit the licensee an opportunity, at least fourteen days after written notice is served personally or by mail upon the licensee, to show why revocation of the license would be unwarranted or unjust.
(d) The agency may refuse or grant or renew a license under this article to any person determined by courts of competent jurisdiction to have committed more than three violations of this article during the year preceding the date on which the license or renewal application is filed with the agency. Before refusing to grant or renew a license under this article, the agency shall give the applicant an opportunity, at least fourteen days after written notice is served personally or by mail upon the applicant, to show why the denial or nonrenewal would be unwarranted or unjust.
(e) A person whose license has been suspended or revoked pursuant to this article shall pay the agency a fee of fifty dollars for the renewal or reissuance of the license. For purposes of determining the liability of a person controlling franchises or business operations in multiple locations for a second or subsequent violations of this article each individual franchise or business location shall be deemed a separate entity.
(f) A licensee shall not be subject to suspension, revocation, denial or nonrenewal of a license by reason of violations of this article that are committed by employees or agents of the licensee if the licensee affirmatively demonstrates that the licensee had taken reasonable steps prior to the time of those violations to prevent those violations by employees or agents. This subsection shall not apply if the licensee has received more than three violations during the license term involving the same place of business or vending machines for which the license was issued.
(g) A licensee may seek judicial review of an action of the agency suspending, revoking, denying or refusing to renew a license under this article by filing a complaint in the superior court. A complaint shall be filed within thirty days after the date on which notice of the action is received by the licensee. The right to seek judicial relief shall not be affected by the failure to seek reconsideration by the agency. The substantial evidence standard of review shall apply.
(h) The agency shall report any action suspending, revoking, denying or refusing to renew a license under this article to the attorney general: Provided, That such action shall be reported only after judicial review, if any, of the action has been completed.
§16-9B-13. Unannounced inspections; reporting and compliance.
(a) Unannounced inspections. --
(1) The alcohol beverage control commission, acting through the West Virginia state police, the sheriffs of the several counties and the chiefs of police of several cities, shall enforce this article in a manner that can reasonably be expected to reduce the extent to which tobacco products are sold or distributed to persons under eighteen years of age, and shall conduct random, unannounced inspections at locations where tobacco products are sold or distributed to ensure compliance with this article. The alcohol beverage control commission shall rely, to the fullest extent possible, on such state police, sheriffs or chiefs of police, or employees thereof, to enforce this article. Licensee fees and penalties collected pursuant to this article shall be used to offset the costs of its enforcement.
(2) Persons under eighteen years of age may be enlisted by such sheriffs or chiefs of police, or employees thereof, to test compliance with this article: Provided, That such persons may be used to test compliance with this article only if the testing is conducted under the following conditions:
(A) Prior to the use of any person under the age of eighteen years in a random, unannounced inspection, written consent shall be obtained from said person's parents or legal guardians;
(B) A person under eighteen years of age shall act solely under the supervision and direction of the sheriff or chief of police, or an employee thereof, during a random, unannounced inspection;
(C) A person under eighteen years of age used in random, unannounced inspections may not be used in any inspection at a store in which that person is a regular customer;
(D) A person under eighteen years of age participating in random, unannounced inspections, if questioned about his or her age, shall state his or her actual age and shall present a true and correct proof of age if requested at any time during the inspection to present it;
(E) A person used in random, annual inspections may not appear to be over eighteen years of age;
(F) A photograph or video recording of any person under eighteen years of age assisting in an inspection shall be taken prior to and after each inspection, or shift of inspections, and retained by the sheriff or chief of police for the purpose of certifying such underage person's appearance; and
(G) Any use of persons under eighteen years of age other than that permitted by this subsection to test compliance with this article or any other prohibitions of like or similar import shall be unlawful and the person or persons responsible for such use shall be subject to the penalties prescribed in subsection (a) of section nine of this article.
(b) Reporting and compliance. --
(1) On a form to be provided by the alcohol beverage control commission, the superintendent of the state police, each sheriff and each chief of police shall report quarterly to the alcohol beverage control commission on all enforcement activities undertaken by such superintendent, sheriff or chief of police, or employees thereof, pursuant to this article. On a form to be provided by the alcohol beverage control commission, the magistrate court of each county and the municipal court of each municipality shall report quarterly to the alcohol beverage control commission on any action brought under this article and shall indicate the result of such action. The alcohol beverage control commission shall not require the superintendent, sheriffs, chiefs of police and municipal attorneys to report any information pursuant to this section that is not required to prepare the report required by Section 1926 of the federal Public Health Service Act (42 U.S.C. 300x-26).
(2) The alcohol beverage control commission shall prepare for submission annually to the secretary of the United States department of health and human services the report required by Section 19216 of the federal Public Health Service Act (42 U.S.C. 300x-26), and otherwise shall be responsible for ensuring the state's compliance with that provision of federal law and any implementing regulations promulgated by the United States department of health and human services.
§16-9B-14. Statewide uniformity.
It is the intent of the Legislature that this article shall be implemented in an equitable and uniform manner throughout this state and shall be enforced to ensure the eligibility for and receipt of any federal funds or grants that this state now receives or may receive relating to the provisions of this article. In order to ensure that this article is equitably and uniformly enforced, no county, city or town, or department, board or agency thereof, and no other political subdivision or agency of this state may enact or enforce any laws, ordinances, rules concerning the sale, distribution, display, use, advertising or promotion of tobacco products. Any such law, ordinance, rule or regulation concerning the sale, distribution, display, use, advertising or promotion of tobacco products that is in effect on the effective date of this statute is hereby declared null and void. This article and its provisions occupy the whole field of regulation regarding the sale, distribution, promotion, advertising and display of tobacco products.
§16-9B-15. Severability.
If any provision of this article or its application to any person or circumstance is held invalid, this shall not affect other provisions or applications of this article that can be given effect without the invalid application and to this end the provisions of the article are severable.
§16-9B-16. Effective date.
This article shall become effective on the first day of July, one thousand nine hundred ninety-six.

NOTE: The purpose of this bill is to create the "Prevention of Youth Access to Tobacco Act of 1996."

This article is new; therefore, strike-throughs and underscoring have been omitted.