H. B. 2821

(By Delegates Manuel, C. White, Mahan, Smirl, Amores,

Webster and Fleischauer)



(Originating in the Committee on the Judiciary)


[March 9, 2001]


A BILL to Bill Titlerepeal section four-a, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty- one, as amended; to amend and reenact section two, article nine-a, chapter sixteen of said code, and to amend chapter sixty of said code by adding thereto a new article, designated article ten, all relating to the sale of tobacco products; establishing retailers' licensing requirements; modifying tobacco sales penalties; authorizing the alcohol beverage control administration to regulate and license retailers of tobacco products; establishing license applications requirements and licensing fees; authorizing the alcohol beverage control administration to propose legislative rules to implement this article; establishing annual permit and renewal requirements; providing licensing qualifications; and establishing a misdemeanor offense and administrative penalty for retail sales without a license. Title Language

Be it enacted by the Legislature of West Virginia:
That section four-a, article twelve, chapter eleven Enacting Sectionof the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section two, article nine-a, chapter sixteen be amended and reenacted; and that chapter sixty be amended by adding thereto a new article, designated article ten, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.

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, firm, corporation or business entity licensee may sell, give or furnish, or cause to be sold, given or furnished, to any person under the age of eighteen years:
(1) Any pipe, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product; or
(2) Any cigar, cigarette, snuff, chewing tobacco or tobacco product, in any form.
 (b) Any firm or corporation that violates any of the provisions of subdivision (1) or (2), subsection (a) of this section and any individual who violates any of the provisions of subdivision (1), subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined twenty-five dollars for the first offense. Upon any subsequent violation at the same location or operating unit, the firm, corporation or individual shall be fined as follows: At least one hundred dollars but not more than two hundred dollars for the second offense, if it occurs within two years of the first conviction; at least two hundred fifty dollars but not more than five hundred dollars for the third offense, if it occurs within two years of the first conviction; at least two hundred fifty dollars but not more than five hundred dollars for the fourth offense, if it occurs within five years of the first conviction; and at least one thousand dollars but not more than five thousand dollars for the fifth and any subsequent offenses, if the fifth or subsequent offense occurs within five years of the first conviction.
 (b) Any licensee that violates any of the provisions of subsection (a) of this section:
The alcohol beverage control administration may impose the following administrative penalties to be deposited in the "Tobacco Enforcement Account" , created in article ten of chapter sixty of this code.
(i) Two hundred dollars for the first offense.
Any subsequent violation at the same location or operating unit, the licensee shall be fined as follows:
(ii) If the second offense occurs within three years of the first offense, a five hundred dollar fine, and a one to three month license suspension;
(iii) If the third offense occurs within three years of the first offense, a one thousand dollar fine, and a six to eighteen month license suspension;
(iv) If the fourth or any subsequent offense occurs within five years of the first offense, a one thousand dollar fine, and a two year license revocation.
 (c) In addition to the above listed administrative penalties in subsection (b) of this section, any licensee that violates any of the provisions of subsection (a) of this section i s guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred nor more than five hundred dollars .
(c) (d) Any individual who knowingly and intentionally 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 tobacco product, in any form, or any pipe, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product is guilty of a misdemeanor and, upon conviction thereof, for the first offense shall be fined not more than one hundred dollars; upon conviction thereof for a second or subsequent offense, is guilty of a misdemeanor and shall be fined not less than one hundred nor more than five hundred dollars.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 10. RETAIL TOBACCO LICENSING.

§60-10-1. Alcohol beverage control administration's authority.
T he alcohol beverage control administration shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to effectuate the purposes of this article, and necessary to establish and enforce the tobacco usage sales restrictions provided for in article nine-a of chapter sixteen of this code. For purposes of this article "administration" means alcohol beverage control administration.
§60-10-2. Retail tobacco products dealer permits; application;

qualifications; fees; renewal; duplicates.
(a) Each person, firm, association, or corporation that seeks to deal, at retail, in tobacco products within this state, or to allow a tobacco products vending machine to be located on any premises in this state, must obtain a retail tobacco products dealer permit for each place of business or the premises where tobacco products are sold. Each retail dealer owning, leasing, furnishing, or operating vending machines through which tobacco products are sold must obtain a permit for each machine and shall post the permit in a conspicuous place on or near the machine. If a dealer has more than one vending machine at a single location or if tobacco products are sold both over the counter and through a vending machine at a single location, the dealer need obtain only one permit for that location.
(b) Application for a permit must be made on a form furnished by the administration and must set forth the name under which the applicant transacts or intends to transact business, the address of the location of the applicant's place of business within the state, and any other information the administration requires. If the applicant has or intends to have more than one place of business dealing in tobacco products within this state, a separate application must be made for each place of business. If the applicant is a firm or an association, the application must set forth the names and addresses of the persons constituting the firm or association; if the applicant is a corporation, the application must set forth the names and addresses of the principal officers of the corporation. The application must also set forth any other information prescribed by the administration for the purpose of identifying the applicant firm, association, or corporation. The application must be signed and verified by oath or affirmation by the owner, if a sole proprietor, or, if the owner is a firm, association, or partnership, by the members or partners thereof, or, if the owner is a corporation, by an executive officer of the corporation or by any person authorized by the corporation to sign the application, together with the written evidence of this authority. The application must be accompanied by the annual permit fee prescribed by the administration .
(c) (1) Permits shall be issued annually, upon payment of the annual permit fee prescribed by the administration . The administration shall fix the fee in an amount sufficient to meet the costs incurred by it in carrying out its permitting, enforcement, and administrative responsibilities under this chapter, but the fee may not exceed one hundred dollars.
(2) The fees collected shall be deposited in a special account in the state treasury to be known as the "Tobacco Enforcement Account". Expenditures from the fund are for the purposes set forth in section one of this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand two, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature.
(d) The holder of a permit may renew the permit each year, on or before the fifteenth day of January of each year, upon payment of the annual permit fee. A dealer that does not timely renew its permit must pay a delinquent renewal fee of five dollars for each month or portion of a month occurring after expiration, and before renewal, of the dealer's permit. The administration shall, pursuant to the rule making authority of section one, article ten, of this chapter, establish a renewal procedure that, to the greatest extent feasible, combines the application and permitting procedure for permits with the application and licensing system for alcoholic beverages.
(e) The administration may not grant an exemption from the permit fees prescribed in this subsection for any applicant.
(f) Permits may be issued only to persons who are eighteen years of age or older or to corporations the officers of which are eighteen years of age or older.
(g) The administration may refuse to issue a permit to any person, firm, association, or corporation the permit of which has been revoked, to any corporation an officer of which has had his or her permit revoked, or to any person who is or has been an officer of a corporation the permit of which has been revoked. Any permit issued to a firm, association, or corporation prohibited from obtaining a permit under this section shall be revoked by the administration .
(h) Upon approval of an application for a permit, the administration shall issue to the applicant a permit for the place of business or premises specified in the application. A permit is not assignable and is valid only for the person in whose name the permit is issued and for the place designated in the permit. The permit shall be conspicuously displayed at all times at the place for which issued.
(i) If a permit has been destroyed or lost, the dealer may apply to the administration for the issuance of a duplicate permit. The administration shall issue a duplicate permit upon payment of a fifteen dollar fee, which the administration shall deposit into the "Tobacco Enforcement Account" .
§60-10-3. Operating without a retail tobacco products dealer
permit; penalty.
It is unlawful for a person, firm, association, or corporation to deal, at retail, in tobacco products, in any manner, or to allow a tobacco products vending machine to be located on its premises, without having a retail tobacco products dealer permit as required by section two of this article. A person who violates this section:
(1) Shall be subject to an administrative fine of not less than one thousand dollars nor more than five thousand dollars; and
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred nor more than five hundred dollars.

§11-12-4A is being repealed. §16-9A-2 is being amended and reenacted. Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added. Title LanguageTitle Language§60-10 is new; therefore, strike-throughs and underscoring have been omitted.Title Language