COMMITTEE SUBSTITUTE

FOR

H. B. 2821

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

Webster and Fleischauer )

(Originating in the Committee on Finance)

[April 2, 2001]



A BILL to repeal section four-a, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty- one, as amended; and to amend and reenact sections two and seven, article nine-a, chapter sixteen of said code, 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.

Be it enacted by the Legislature of West Virginia:
That section four-a, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that sections two and seven, article nine-a, chapter sixteen of said code be amended and reenacted, all to read as follows: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 corporationlicensee that violates any of the provisions of subdivision (1) or (2), subsection (a) or subsection (d) of this section and any individual who violates any of the provisions of subdivision (1), subsection (a) or subsection (d) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined twenty-fivefifty dollars for the first offense. Upon any subsequent violation at the same location or operating unit, the firm, corporation or individuallicensee 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.
(c) 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, 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.
(d) No licensee may sell or give for a commercial purpose to another under the age of twenty-seven any product listed in subsection (a) of this section without first verifying the age of the person purchasing or receiving such product or products by requiring the presentation of a driver's license or similar photographic identification issued by an agency of this state, another state, the government of the United States or a foreign country. Such identification shall not be required from an individual whom the person selling or giving the product has reasonable cause to believe is at least twenty-seven years of age or whom the person has actual knowledge is eighteen years of age or older. As used in this subsection "reasonable cause" means having enough information as would lead an ordinarily prudent person to believe that the person in question is at least twenty-seven years of age. In determining whether a person had reason to believe an individual is at least twenty-seven years of age, the trier of fact may consider, but is not limited to, considering proof of the general appearance, facial characteristics, behavior and manner of the individual.
(e) The products listed in subsection (a) of this section may be sold from vending machines without meeting the identification requirements of subsection (d) of this section if the machine is posted with a notice, in a conspicuous manner and place indicating that the purchase or possession of tobacco products by minors is illegal and the machine is operated in compliance with the provisions of section eight of this article.
(f) In any criminal action brought pursuant to the provisions of subsection (a) or (c) of this section, it shall be a defense that the person, firm, corporation or business entity complied with the provisions of subsection (d) of this section or requested and was shown a qualifying photographic identification which showed the person in question to be at least eighteen years of age.
(g) In any criminal prosecution pursuant to the provisions of subsection (d) of this section for failure to require identification from a person under the age of twenty-seven, it shall be an absolute defense that the individual to whom the product was sold or given was at least eighteen years of age.
(a)(h) For registration years beginning Beginning on or after the first day of July, two thousand one, each person licensee who sells cigarettes, or other tobacco products or cigarette wrappers at wholesale or retail shall apply for and receive a license to sell cigarettes or other tobacco products or cigarette wrappers. The cigarette license application shall be a part of the business registration certificate application or the renewal application for a business registration certificate. The commissioner of the alcohol beverage control commission shall collect an annual twenty five dollar license fee for each location where a person, firm, corporation or business entity sells cigarettes, or other tobacco products or cigarette wrappers at wholesale or retail.
(b)(i) The license shall be printed on the business registration certificate or certificates issued under the provisions of subsection (a), section four of this article shall be conspicuously displayed at each location where the person, firm, corporation or business entity sells cigarettes, other tobacco products or cigarette wrappers at wholesale or retail.
(c)(j) Any person, or company licensee who sells any cigarettes, or other tobacco products or cigarette wrappers at wholesale or retail after the first day of July, two thousand one, without obtaining the license specified in subsection (a) (h) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than two hundred fifty dollars.
(k) The commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code providing procedures for issuing, suspending, renewing and revoking a license issued under this section. The rules shall specify reasons for which the commissioner may refuse to issue or renew a license under this section and reasons for which a license may be suspended or revoked for violations of this article.
(l) The commissioner shall take action pursuant to this subsection against any entity holding a license under subsection (h) of this section who, is either, convicted of, or pleads nolo contendere to, a violation of the provisions of subsection (a), or has an employee that is convicted of, or pleads nolo contendere to violating this subsection. The commissioner shall:
(1) Upon the first violation notify the licensee that its license can be suspended and enforcement fees assessed upon a subsequent conviction or plea of nolo contendere, within two years of the first violation; and the commissioner shall impose on the licensee an enforcement processing fee of twenty-five dollars.
(2) Upon a second violation within two years of the first violation, the commissioner shall suspend the entity's license for three consecutive days and assess an enforcement processing fee of not less than one hundred dollars nor more than two hundred dollars;
(3) Upon the third violation within three years of the first violation, the commissioner shall suspend the entity's license for thirty consecutive days and impose an enforcement processing fee of not less than two hundred fifty dollars nor more than five hundred dollars.
(4) Upon the fourth violation within three years of the first violation, the commissioner shall suspend the entity's license for no greater than one year and impose an enforcement processing fee of not less than two hundred fifty dollars nor more than five hundred dollars.
(m) For purposes of this subsection, a violation shall not be deemed subsequent unless and until the person causing the violation and, where applicable, his or her employer has been supplied written notice of violation.
(n) The commissioner shall deposit the license fees and enforcement processing fees collected pursuant to this section into the operating fund created in article three of chapter sixty of this code to be used to defray the costs of administering this section and to be used by the commissioner for enforcement activities.
§16-9A-7. Enforcement of youth smoking laws; retail tobacco outlet inspections; use of minors in inspections; annual reports; penalties; defenses.
(a) The commissioner of the West Virginia alcohol beverage control administration, the superintendent of the West Virginia state police, the sheriffs of the counties of this state and the chiefs of police of municipalities of this state, may periodically conduct unannounced inspections at locations where tobacco products are sold or distributed to ensure compliance with the provisions of sections two and three of this article and in such manner as to conform with applicable federal and state laws, rules and regulations. Persons under the age of eighteen years may be enlisted by such commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof to test compliance with these sections: Provided, That the minors may be used to test compliance only if the testing is conducted under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and written consent of the parent or guardian of such person is first obtained and such minors shall not be in violation of section three of this article and chapter when acting under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and with the written consent of the parent or guardian. It is unlawful for any person to use persons under the age of eighteen years to test compliance in any manner not set forth herein and the person so using a minor is guilty of a misdemeanor and, upon conviction thereof, shall be fined the same amounts as set forth in section two of this article.
(b) A person charged with a violation of section two or three of this article as the result of an inspection under subsection (a) of this section has a complete defense if, at the time the cigarette or other tobacco product or cigarette wrapper was sold, delivered, bartered, furnished or given:
(1) The buyer or recipient falsely evidenced that he was eighteen years of age or older;
(2) The appearance of the buyer or recipient was such that a prudent person would believe the buyer or recipient to be eighteen years of age or older; and
(3) Such person carefully checked a driver's license or an identification card issued by this state or another state of the United States, a passport or a United States armed services identification card presented by the buyer or recipient and acted in good faith and in reliance upon the representation and appearance of the buyer or recipient in the belief that the buyer or recipient was eighteen years of age or older.
(c) (b) Any fine collected after a conviction of violating section two of this article shall be paid to the clerk of the court in which the conviction was obtained: Provided, That the clerk of the court upon receiving the fine shall promptly notify the commissioner of the West Virginia alcohol beverage control administration of the conviction and the collection of the fine: Provided, however, That any community service penalty imposed after a conviction of violating section three of this article shall be recorded by the clerk of the court in which the conviction was obtained: Provided further, That the clerk of the court upon being advised that community service obligations have been fulfilled shall promptly notify the commissioner of the West Virginia alcohol beverage control administration of the conviction and the satisfaction of imposed community service penalty.
(d)(c) The commissioner of the West Virginia alcohol beverage control administration or his or her designee shall prepare and submit to the governor on the last day of September of each year a report of the enforcement and compliance activities undertaken pursuant to this section and the results of the same, with a copy to the secretary of the West Virginia department of health and human resources. The report shall be in the form and substance that the governor shall submit to the applicable state and federal programs.