Senate Bill No. 126

(By Senator Mitchell, Dawson, Unger, Hunter, Kessler, Ball, McKenzie, Minear, Minard, Redd, Bowman, Ross and Sharpe)

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[Introduced January 18, 2000; referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section two, article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to sale of tobacco products to minors; establishing increased penalties for an individual selling tobacco to minors; creating felony offense for the second offense sale by an individual of products containing tobacco to a person under eighteen years of age; establishing criminal penalties; and providing for money from fines to be used for the tobacco prevention program.

Be it enacted by the Legislature of West Virginia:
That section two, article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.

§16-9A-2. Sale or gift of cigarette, cigarette paper, pipe, cigar, snuff, or chewing tobacco to persons under eighteen; penalties for first and subsequent offense.

(a) No person or any firm, corporation or business entity 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, pipe, 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, cigarette, pipe, snuff, chewing tobacco or tobacco product, in any form.
(b) Any firm or corporation which violates any of the provisions of subdivision (a) or (b) (1) or (2) of this section subsection (a) and any individual who violates any of the provisions of subdivision (1) of subsection (a) is guilty of a misdemeanor and, upon conviction thereof, shall be fined twenty-five one hundred dollars for the first offense. Upon any subsequent violation by that firm or corporation at the same location or operating unit, the firm or corporation shall be fined as follows: At least fifty one hundred dollars but not more than one hundred two hundred fifty dollars for the second offense, if it occurs within two years of the first conviction; at least fifty two hundred fifty dollars but not more than two hundred five hundred dollars for the third offense, if it occurs within two years of the first conviction; at least one hundred two hundred fifty dollars but not more than three five hundred dollars for the fourth offense, if it occurs within five years of the first conviction; and at least one hundred one thousand dollars but not more than three hundred fifty five thousand dollars for the fifth and any subsequent offenses, if the fifth or subsequent offense occurs within five years of the first conviction. Any person who violates any provision of subdivision (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.
(c) Any individual who sells, gives or furnishes or causes to be sold, given or furnished to any person under the age of eighteen years any cigar, cigarette, snuff, chewing tobacco or product containing tobacco in any form, upon conviction thereof for the first offense, shall be guilty of a misdemeanor and shall be fined not less than one hundred dollars nor more than five hundred dollars or confined in the county or regional jail not more than thirty days, or both; and upon conviction thereof for a second or subsequent offense, shall be guilty of a felony, and shall be fined not less than one thousand nor more than five thousand dollars, or imprisoned in a state correctional facility not less than one year nor more than three years, or both.
(d) The net proceeds of all fines, penalties and forfeitures collected under this article shall be appropriated as directed by article XII, section 5 of the constitution of West Virginia. For the purposes of this section, the net proceeds of such fines, penalties and forfeitures shall be deemed the proceeds remaining after deducting therefrom those sums appropriated by the Legislature for defraying the cost of administering the tobacco prevention program administered by the division of health promotion within the department of health and human resources. In making the appropriation for defraying the cost of administering the tobacco prevention program, the Legislature shall first take into account the sums received for the program from other sources prior to deducting such additional sums as may be needed from the fines collected pursuant to this article.



NOTE: This bill changes the offense by an individual of selling products containing tobacco to minors from a misdemeanor to a felony for second or subsequent offense, establishes penalties, and permits money from fines to be used to fund the Tobacco Prevention Program administered by the Department of Health and Human Resources.

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