H. B. 2677


(By Delegates Williams, Stemple, Stalnaker, Everson, Facemyer and Seacrist)
[Introduced March 21, 1997; referred to the
Committee on Health and Human Resources then Finance.]


A BILL to amend and reenact section four, article twelve, chapter
eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections two, three and seven, article nine-a, chapter sixteen of said code; and to further amend said article nine-a by adding thereto eight new sections, designated sections one-a, eight, nine, ten, eleven, twelve, thirteen and fourteen, all relating to tobacco usage restrictions; definitions; reducing the access of persons under the age of eighteen years to tobacco products; prohibiting the purchase or receipt of tobacco products by persons under the age of eighteen years; providing for random, unannounced inspections of locations where tobacco products are sold or distributed; providing for report to be submitted to the United States department of health and human services; limiting the sale of tobacco products through vending machines; prohibiting the sale of cigarettes and smokeless tobacco products other than in unopened packages; requiring the posting of signs in retail establishments; providing for training of retail sales clerks; civil penalties assessed by the alcohol beverage control commissioner; ensuring uniform rule for the sale, distribution, display, use, advertising and promotion of tobacco products; requiring retailers of tobacco products to indicate this on application for business registration; and providing for the certification of retailers of tobacco products.

Be it enacted by the Legislature of West Virginia:
That section four, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that sections two, three and seven, article nine-a, chapter sixteen of said code be amended and reenacted; and that said article nine-a be further amended by adding thereto eight new sections, designated sections one-a, eight, nine, ten, eleven, twelve, thirteen and fourteen, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 12. BUSINESS REGISTRATION TAX.

§11-12-4. Application for business registration certificate; issuance of business certificate; effect of business registration certificate; municipal license taxes.
(a) General rule. -- Except as otherwise provided in this article, a person shall register with the tax commissioner prior to engaging in or prosecuting any business activity in this state. The application for business registration shall be in such the form and contain such information as the tax commissioner may require; and the application shall set forth truthfully and accurately the information required by the tax commissioner. Upon receipt of a complete and properly executed application form, accompanied by payment of (or claim of exemption from) the tax levied by section three for each business registration certificate, the tax commissioner shall, if he or she determines to his or her satisfaction that all of the conditions precedent to the granting of such the certificate have been fulfilled by the applicant, issue such business registration certificate or certificates.
(b) Certificate not to validate illegal activity. -- Nothing in this article, including, but not limited to, any payment of the tax imposed or issuance of any certificate of registration under the provisions hereof, shall be deemed to legalize any act, business activity or transaction which otherwise may be illegal or conducted in violation of law; or to exempt any person from any civil or criminal penalty prescribed for such illegal act or violation.
(c) Certificate not to be construed as consent to general tax jurisdiction of this state. -- The filing of an application for business registration certificate (or for renewal thereof) and payment of the tax imposed by section three shall may not be construed by the tax commissioner or the courts of this state as consent, submission or admission by the registrant to the general taxing jurisdiction of this state, and liability for such other taxes imposed by this state shall depend upon the relevant facts in each case and the applicable law.
(d) Power of municipalities to impose license taxes preserved. -- Notwithstanding the repeal, as of the first day of July, one thousand nine hundred seventy, of certain license taxes then imposed by this article and article thirteen-a of this chapter, the power of a municipality to impose similar license taxes, by ordinance adopted pursuant to the authority of its charter or this code, was and is preserved: Provided, That the municipal license taxes imposed on any business, activity, trade or employment that was previously subject to a state license tax under this article or article thirteen-a of this chapter, cannot exceed the state license tax in effect on such any business, activity, trade or employment of the first day of January, one thousand nine hundred seventy; and municipalities shall have the power to impose similar penalties as those then provided in this article and article thirteen-a of this chapter for noncompliance with such state license taxes.
(e) Retailer of tobacco products. -- Each application for business registration (or for renewal thereof) shall include a check-off box that permits an applicant to indicate whether the applicant is engaged in the retail sale of tobacco products. Each applicant for a business registration certificate who engages in the retail sale of tobacco products, including retail sale through vending machines, shall so indicate on the application. The business registration certificate of each person engaged in the retail sale of tobacco products, as indicated on the person's application, shall include a seal or other certification that such person is a licensed retailer of tobacco products.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1a. Definitions.
(a) General rule. -- Terms used in this article shall have the meaning ascribed to them in subsection (b) of this section.
(b) Terms defined. -- For purpose of this article, the term:
(1) "Distribute" means to sell, furnish, give or provide tobacco products, including tobacco product samples, to the ultimate consumer.
(2) "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.
(3) "Public place" means any public street, sidewalk or park, or any area open to the general public in any publicly owned and operated building.
(4) "Sample" means a tobacco product distributed to members of the general public at no cost for the purpose of promoting the product.
(5) "Sampling" means the distribution of samples to members of the general public in a public place.
(6) "Tobacco product" means any product that contains tobacco and is intended for human consumption.
(7) "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.
§16-9A-2. Sale or gift of cigarette, cigarette paper, pipe, cigar, snuff or chewing tobacco to persons under eighteen; penalty.
No person, firm or corporation may sell, give or furnish, distribute or cause to be sold, given or furnished, or distributed to any person under the age of eighteen years or purchased on behalf of such person:
(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.
Any person, firm or corporation violating any of the provisions of subdivisions subsection (a) or (b) of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined assessed a civil penalty by the alcohol beverage control commissioner in an amount not less than ten nor more than twenty-five dollars for the first offense, violation, and for each subsequent offense, violation, not less than twenty-five nor more than three hundred dollars.
For the first violation during a one-year period at a store in which products are sold at retail, if the sale is made by an employee of the owner of the store, the employee shall be guilty of the violation and be subject to the penalty. For each subsequent violation during a one-year period at a store in which tobacco products are sold at retail, the owner of the store shall be guilty of the violation and 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. 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 section, each individual franchise or business location shall be deemed a separate entity.
(3) A person engaged in the sale or distribution of tobacco products shall demand proof of age from a prospective purchaser or recipient if the person has reason to believe that the prospective purchaser or recipient is under eighteen years of age. Any person violating the provisions of subsection (b) of this section shall be assessed a civil penalty by the alcohol beverage control commissioner in an amount not less than twenty-five dollars for the first violation and for each subsequent violation, not less than twenty-five nor more than three hundred dollars.
§16-9A-3. Use or possession of tobacco or tobacco products by persons under the age of eighteen years; penalty.
(a) No person under the age of eighteen 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 subsection (a) of this section is punishable by a fine of five dollars and notwithstanding the provisions of section one, article five, chapter forty-nine, the magistrate court shall have concurrent jurisdiction shall be assessed a civil penalty by the alcohol beverage control commissioner in the amount of five dollars.
(b) No person who has not attained eighteen years of age shall purchase or accept receipt of a tobacco product, or 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. Any person violating the provisions of subsection (b) of this section is punishable by a civil penalty assessed by the alcohol beverage control commissioner in an amount equal to fifty dollars or twenty-five hours of community service work for a first violation within a one-year period and a civil penalty of fifty dollars and fifty hours of community service work for a second or subsequent violation within a one-year period.
§16-9A-7. Unannounced inspections; reporting and compliance.
(a) Unannounced inspections.
(1) The alcohol beverage control commissioner 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. A sheriff or chief of police or an employee thereof, may conduct inspections if the sheriff, chief of police or employee thereof, has given written notice to the alcohol beverage control commissioner in the manner prescribed by the commissioner. 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 the alcohol beverage control commissioner or a sheriff, chief of police or employee 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 the person's parents or legal guardians;
(B) A person under eighteen years of age shall act solely under the supervision and direction of the alcohol beverage control commissioner, or sheriff, chief of police or 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 does not appear to be over eighteen years of age; and
(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 alcohol beverage control commissioner or sheriff or chief of police for the purpose of verifying the underage person's appearance.
(3) 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 two, article nine-a, chapter sixteen.
(b) Reporting and compliance.
(1) On a form to be provided by the alcohol beverage control commissioner, each sheriff and chief of police shall report quarterly to the alcohol beverage control commissioner on all enforcement activities undertaken by the sheriff or chief of police or employee thereof, pursuant to this article. The alcohol beverage control commissioner may not require any sheriff or chief of police 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 and any regulations promulgated pursuant thereto.
(2) The alcohol beverage control commissioner shall prepare for submission annually to the secretary of the United States department of health and human services the report required by Section 1926 of the federal Public Health Service Act 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.
§16-9A-8. Vending machine sales; penalty.
(a) Location restrictions. -- 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, businesses, 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;
(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; (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; and (C) is inaccessible to the public when the establishment is closed.
(b) Proof of age. -- In any place where supervision of a vending machine or activation of an electronic switch, is required by subsection (a) of this section, the person responsible for that supervision or the activation of the switch shall demand proof of age from a prospective purchaser if the person has reason to believe that the prospective purchaser is under eighteen of age.
(c) Penalties. -- 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 a civil penalty of one hundred dollars to be assessed by the alcohol beverage control commissioner.
§16-9A-9. Out-of-package sales; penalty.
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. A person who sells a cigarette or smokeless tobacco product in violation of this section is subject to a civil penalty of one hundred dollars to be assessed by the alcohol beverage control commissioner.
§16-9A-10. Signs; penalty.
(a) Requirement. -- On and after the first day of September, one thousand nine hundred ninety-seven, 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 EIGHTEEN YEARS

PROOF OF AGE MAY BE REQUIRED


(b) Penalties. -- Failure to post the sign as required by subsection (a) of this section shall be punishable by a civil penalty to be assessed by the alcohol beverage control commissioner 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 section, shall be required to be posted or maintained in any store that sells tobacco products at retail.
§16-9A-11. Employees.
(a) Requirement. -- Every person engaged in the business of selling tobacco products at retail shall notify each individual 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 person 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 my employment, to observe the law."
Each form signed by the individual shall indicate the date of signature. The employer shall retain the form signed by each individual employed as a retail sales clerk until one hundred and twenty days after the individual has left the employer's employ.
(b) Penalties. -- Any employer failing to comply with the requirements of this section with respect to any employee shall be assessed a civil penalty of one hundred dollars by the alcohol beverage control commissioner for the first violation within a two-year period and two hundred dollars for each succeeding violation of this provision within a two-year period.
§16-9A-12. Enforcement; civil penalties.
(a) Any person who violates any provision of this article may be assessed a civil penalty by the commissioner, in the amount specified in this article for the violation. Each violation shall constitute a separate offense.
(b) A civil penalty shall be assessed by the alcohol beverage control commissioner only after the commissioner shall have given at least ten days' notice to the person alleged to have committed the violation. Notice shall be in writing, shall state the reason for the proposed civil penalty and the amount thereof, and shall designate a time and place for a hearing where the person may show cause why the civil penalty should not be imposed. Notice shall be sent by certified mail to the address for which the retail license was issued, in the case of a retailer, or to the home address of any other person. The person assessed such a penalty may, at the time designated for the hearing, produce evidence in his or her behalf and be represented by counsel.
(c) The hearing and the administrative procedures prior to, during and following the same shall be governed by and in accordance with the provisions of article five, chapter twenty-nine-a of this code in like manner as if the provisions of article five were fully set forth in this section.
(d) Any person adversely affected by an order entered following the hearing shall have the right of judicial review thereof in accordance with the provisions of section four, article five, chapter twenty-nine-a of this code with like effect as if the provisions of section four were fully set forth in this section.
(e) The judgment of a circuit court reviewing the order of the commissioner shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
(f) Legal counsel and services for the commissioner in all proceedings in any circuit court and the supreme court of appeals shall be provided by the attorney general or his or her assistants and in any proceedings in any circuit court by the prosecuting attorney of that county as well, all without additional compensation.
§16-9A-13. 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 equitable and uniform, no county, city, town or department, board of agency thereof, and no other political subdivision or agency of this state may enact or enforce any laws, ordinances, rules or regulations concerning the sale, distribution, display, use, advertising or promotion of tobacco products. Any 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 article is hereby declared void. This article and its provisions occupy the whole field of regulation regarding the sale, distribution, display, use, advertising and promotion of tobacco products.
§16-9A-14. Severability.
If any provision of this article or its application to any person or circumstance is held invalid, this may 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.





NOTE: The purpose of this bill is to reduce the access of persons under the age of eighteen years to tobacco products; prohibit the purchase or receipt of tobacco products by persons under the age of eighteen years; provide for random, unannounced inspections of locations where tobacco products are sold or distributed; provide for a report to be submitted to the United States department of health and human services; limit the sale of tobacco products through vending machines; prohibit the sale of cigarettes and smokeless tobacco products other than in unopened packages; require the posting of signs in retail establishments; provide for training of retail sales clerks; provide civil penalties assessed by the alcohol beverage control commissioner; ensure uniform rule for the sale, distribution, display, use, advertising and promotion of tobacco products; require retailers of tobacco products to indicate this on application for business registration; and provide for the certification of retailers of tobacco products.

§16-9A-1a, 8, 9, 10, 11, 12, 13 and 14 are new; §16-9A-7 has been completely rewritten; therefore, strike-throughs and underscoring have been omitted.


Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.