H. B. 2584
(By Delegates Amores, Leach, Mahan,
Compton and Thompson)
[Introduced March 18, 1997; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact sections one and two, 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 a new section, designated
section one-a, all relating to requiring licenses for
tobacco dealers; legislative intent; definitions; specifying
duties of the alcohol beverage control commissioner and law
enforcement agencies; imposing penalties and licensure fees;
and creating special revenue accounts to fund the licensing
of tobacco dealers and the enforcement of tobacco usage
restrictions.
Be it enacted by the Legislature of West Virginia:
That sections one and two, 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 a new section designated section one-a, 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 and ban the use of tobacco
products by minors. As basis for this policy, the Legislature
hereby finds and accepts the medical evidence that smoking
tobacco may cause lung cancer, heart disease, emphysema and other
serious health problems while the use of smokeless tobacco may
cause gum disease and oral cancer. It is the further intent of
the Legislature in banning the use of tobacco products by minors
to ease the personal tragedy 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. The Legislature
further finds that the use of tobacco frequently begins at an
early age and that the licensing of tobacco dealers will assist
in accomplishing the policy of the state to discourage and ban
the use of tobacco products by minors.
§16-9A-1a. Definitions.
When used in this article the following words, terms and
phrases and any variations thereof required by the context, shall
have the meaning ascribed to them in this article, except where
the context indicates a different meaning:
(1) "Cigarette" means:
(a) Any roll for smoking made, wholly or in part, of
tobacco, irrespective of size or shape and whether or not such
tobacco is flavored, adulterated or mixed with any ingredient,
the wrapping or cover of which is made of paper or any substance
or material, except tobacco.
(b) Any roll of tobacco wrapped in any substance containing
tobacco which, because of its appearance, the type of tobacco
used in the filler, or its packing and labeling, is likely to be
offered to, or purchased by, consumers as a cigarette described
in subdivision (a) of this subsection.
(2) "Consumer" means a person who receives or in any way
comes into possession of tobacco products for the purpose of
consuming or giving them away or disposing of them in any way
other than by sale.
(3) "Dealer" means every person in this state engaged in the
selling of tobacco products.
(4) "Person" means and includes any individual, firm,
association, company, partnership, corporation, joint-stock
company, club, agency, syndicate, municipal corporation or other
political subdivision of this state, trust, receiver, trustee,
fiduciary or conservator, and when used in connection with any
penalties imposed by this article, means and includes officers, directors, trustees or members of any firm, copartnership,
association, corporation, trust or any other unit acting as a
group.
(5) "Retail dealer" means every person in this state, other
than a wholesaler, engaged in the selling of tobacco products at
retail to a consumer and includes vending machine operators.
(6) "Sale," "sell," "selling" or "sold" means the exchange,
or offer to exchange, a tobacco product for money, products,
services or a promise.
(7) "Tobacco product" means any substance that contains
tobacco, including, but not limited to, cigarettes, cigars,
snuff, smoking tobacco or smokeless tobacco.
(8) "Vending machine operator" means any person operating
one or more tobacco product vending machines.
(9) "Wholesaler" or "wholesale dealer" includes any person
who purchases tobacco products for sale other than to a consumer.
§16-9A-2. Sale or gift of tobacco products to persons under
eighteen; penalty; licensure of dealers of tobacco products; fees; duties of the alcohol beverage control commissioner and law-enforcement agencies; special accounts.
(a) No person, firm or corporation may sell, give or
furnish, or cause to be sold, given or furnished, to any person individual 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) No person may sell tobacco products without having first
obtained a tobacco dealer license from the alcohol beverage
control commissioner.
(c) Any person, firm or corporation violating any of the
provisions of subdivisions subsections (a) or (b) of this section
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than ten nor more than twenty-five dollars for the
first offense, and for each subsequent offense, not less than
twenty-five nor more than three hundred dollars.
(d) The alcohol beverage control commissioner shall conduct
a tobacco dealer licensure program and the civil enforcement of
the sale prohibition and licensure provisions of subsections (a)
and (b) of this section, including, but not limited to: The
checking for tobacco dealer licensure compliance by applicants
for licenses to sell alcoholic beverages who sell, or who propose
to sell, tobacco products; the conducting of contested case
hearings; and the bringing of enforcement actions in court. The alcohol beverage control commissioner shall propose rules subject
to legislative approval, in accordance with article three,
chapter twenty-nine-a of this code as may be necessary to carry
out the commissioner's duties under this section and shall
promulgate emergency rules in accordance with the article to
promptly initiate the carrying out of such duties.
(e) The annual fee for a retail dealer license is fifty
dollars per retail business location at which tobacco products
are sold and one thousand dollars for a statewide wholesale
dealer license. The alcohol beverage control commissioner may
increase such fees annually to reflect the increase in inflation.
A licensee shall prominently display the license at the location
licensed.
(f) The state police and sheriffs and chiefs of police
working in conjunction with that division in conducting
compliance inspections under section seven of this article shall
file with the alcohol beverage control commissioner their civil
charges against dealers for violating subsections (a) and (b) of
this section, along with their evidence to support the charges,
and provide testimony regarding the charges in any hearings held
by the commissioner.
(g) The alcohol beverage control commissioner shall suspend
the license of a dealer for three days if the commissioner determines the dealer has violated subsection (a) or (b) of this
section and shall impose a civil money penalty of not less than
one hundred-fifty and not more than three hundred dollars. For
such a violation by a dealer within two years of a previous
violation, the alcohol beverage control commissioner shall
suspend the license of the dealer for seven days and impose a
civil money penalty of not less than two hundred fifty and not
more than five hundred dollars. For a third and all subsequent
violations by a dealer within a five-year period, the alcohol
beverage control commissioner shall suspend the license of the
dealer for one year and impose a one thousand dollar civil money
penalty. These suspensions and penalties may be judicially
reviewed as provided in the state administrative procedures act,
chapter twenty-nine-a of this code.
(h) Subject to the provisions set forth in section two,
article two, chapter twelve of this code, there is established in
the state treasury separate tobacco control accounts which shall
be designated the "tobacco control-alcohol beverage control
commissioner account" and the "tobacco control-state police
account."
The alcohol beverage control commissioner shall deposit to
the tobacco control-alcohol beverage control commissioner account
fifty percent of all dealer licensing fees and civil penalties collected and deposit the remaining fifty percent to the tobacco
control-state police account.
As part of the annual state budget, the Legislature shall
appropriate to the alcohol beverage control commissioner all
moneys deposited in the tobacco control-alcohol beverage control
commissioner account, and the commissioner shall expend such
moneys in accordance with the laws of this state to conduct the
commissioner's responsibilities under this section: Provided,
That for the fiscal year ending the thirtieth day of June, one
thousand nine hundred ninety-eight, expenditures are authorized
by the commissioner from deposits rather than pursuant to an
appropriation by the Legislature.
As part of the annual state budget, the Legislature shall
appropriate to the state police all moneys deposited in the
tobacco control-state police account, and the state police shall
expend the moneys in accordance with the laws of this state to
conduct: Their responsibilities under this section; compliance
inspections as provided in section seven of this article; and
tobacco control educational activities in cooperation with the
department of health and human resources: Provided, That for the
fiscal year ending the thirtieth day of June, one thousand nine
hundred ninety-eight, expenditures are authorized by the state
police from deposits rather than pursuant to an appropriation by the Legislature.
Any remaining balance including accrued interest in the
tobacco control accounts at the end of any fiscal year may not
revert to the general revenue fund but shall remain in the
accounts, and the moneys shall be expendable after appropriation
by the Legislature in ensuing fiscal years.
(i) Before the first day of January of each year, the
alcohol beverage control commissioner shall provide the
Legislature with an annual fiscal year report concerning dealer
licensing, including, but not limited to, the previous fiscal
year's expenditures and projected expenditures for the next
fiscal year from the tobacco control-alcohol beverage control
commissioner account and the number and identification of:
Dealers against whom charges were filed; licenses issued and
suspended; penalties levied and the collection record; and
hearings and court actions and their statuses.
Before the first day of January of each year, the state
police shall provide the Legislature with an annual fiscal year
report concerning the previous fiscal year's expenditures and
projected expenditures for the next fiscal year from the tobacco
control-state police account, its tobacco control educational
activities and its enforcement of subsections (a) and (b) of this
section, including, but not limited to, the number of: Compliance inspections conducted under section seven of this
article; dealers charged before the alcohol beverage control
commissioner with civil violations of subsection (a) or (b) of
this section; appearances in hearings before the commissioner;
and persons charged with a criminal violation of subsection (a)
or (b) of this section and the statuses of their cases.
The alcohol beverage control commissioner and the state
police shall provide the division of health with a copy of their
annual fiscal year reports.
(j) Nothing contained in this article restricts the power
and authority of the state or its political subdivisions under
other provisions of this code.
NOTE: The purpose of this bill is to reduce the sale of
tobacco products to minors and help preserve eligibility for
federal funding for substance abuse treatment by requiring the
licensure of dealers of tobacco products and by providing for
licensure fees, penalties and special accounts for the funding of
licensing and enforcement.
Strike-through indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
§16-9A-1a is new; therefore, strike-throughs and
underscoring have been omitted.