HOUSE COM SUB (2 LINES)

COMMITTEE SUBSTITUTE
FOR
H. B. 4459
(By Delegates Swartzmiller, Webster, Michael,
Varner and Kominar )
(Originating in the Committee on Finance)
[February 22, 2002]

A BILL to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article nine-d, relating to the creation of an underage tobacco prevention grant program for tobacco retailers; setting forth a declaration of public need for grant assistance; establishing a grant program; defining terms; providing for a grant for qualified tobacco technology; providing for the appropriation of grant moneys; designating the powers and duties of the secretary of tax and revenue; setting forth criteria to use in determining what is a qualified tobacco technology expense; providing that use of qualified tobacco technology constitutes prima facie evidence of compliance with certain law; providing that the department be provided with records from retailers involved in the grant program; prescribing a time limitation on retailers to acquire a grant; and prescribing a monetary limit on available funds.

Be it enacted by the Legislature of West Virginia:

That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article nine-d, to read as follows:
ARTICLE 9D. UNDERAGE TOBACCO USE PREVENTION GRANT PROGRAM.
§16-9D-1. Short title.

This article may be known and cited as the "Underage Tobacco Prevention Grant Act."
§16-9D-2. Purpose and findings.

The Legislature finds that it is in the best interest of the state to prevent and discourage the unlawful purchase and consumption of tobacco products by minors. Further, the Legislature finds that the prevention of unlawful purchases and consumption of tobacco products by underage youths will result in a future decrease in the tobacco usage resulting in a decrease in tobacco related disease and treatment costs.

The Legislature also finds that it can prevent the unlawful purchase and consumption of tobacco products by underage youths by promoting a grant program designed to promote certain scanner technology to aid in the determination of a consumer's actual age, and assist tobacco retailers with the purchase of the scanner technology to combat and eliminate the unlawful purchase and consumption of tobacco products by the underage youth of this state.
§16-9D-3. Definitions.

For the purpose of this article, the term:

(a) "Department" means the West Virginia department of tax and revenue.

(b) "Grant" or "grant program" means a grant or the grant program authorized and established by the provisions of this article.

(d) "Tobacco" or "tobacco products" include any pipe, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product; or any cigar, cigarette, snuff, chewing tobacco or tobacco product, in any form.

(e) "Qualified tobacco technology expense" means that expense incurred by a tobacco retailer for the purchase and use of technology intended to control the access of minors to tobacco products and which is capable of:

(1) Capturing the information from a bar code or magnetic strip on a driver's license or identification card issued by the division of motor vehicles;

(2) Producing a declaration of age in print form and storing a record of the event in memory;

(3) Producing an audible, visual and printed result;

(4) Reporting a history of the events, including the ability to transfer the data for archiving and data base development purposes; and

(5) Storing at least one thousand events at any time before data is transferred.

(f) "Retailer" means any entity or person licensed or registered by the department to conduct business in the state that sells tobacco products to consumers.

16-9D-4. Grant for qualified tobacco technology expense; amount; notification.

(a) Application for grant by retailer. -- A retailer who intends to incur a qualified tobacco technology expense may apply for a qualified tobacco technology expense grant as provided in this article. In order to receive the grant, the retailer must submit an application on the form provided by the secretary. Funds are available for expenses incurred on or after the first day of January, two thousand two.

(b) Amount of grant. -- A retailer that applies under subsection (a) of this section and is approved by the department under the provisions of this article shall receive a qualified tobacco technology expense grant not to exceed the lesser of half the retail cost of the qualified tobacco technology expense or one thousand dollars per business location.

(c) Notification of approval from department. -- The department shall notify the retailer within thirty days of receipt of the retailer's application whether the retailer's application has been approved, and if so, in what monetary amount.
§16-9D-5. Appropriation of grant moneys.

All funds received shall be deposited in a special revenue account in the state treasury known as the "Underage Tobacco Use Prevention Program Fund". All funds shall be appropriated by the Legislature and shall not exceed a total of three hundred thousand dollars.
§16-9D-6. Powers and duties of the secretary.

(a) Subject to the provisions of this article and within the limits of appropriations made by the Legislature, the secretary is authorized to: (1) Prepare and supervise the issuance of public information concerning the grant program; (2) prescribe the form and regulate the submission of applications for grants; (3) administer the application process; (4) select qualified recipients of grants; (5) award grants; (6) accept grants, gifts, bequests and devises of real and personal property for the purposes of the grant program; (7) employ or engage such professional and administrative employees as may be necessary to assist the secretary in the performance of the duties and responsibilities, who shall serve at the will and pleasure of the secretary; (8) employ or engage such clerical and other employees as may be necessary to assist the secretary in the performance of the duties and responsibilities, who shall be under the direction and control of the secretary; (9) prescribe the duties and fix the compensation of all such employees; and (10) propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code, not inconsistent with the provisions of this article relating to the administration of the Underage Tobacco Prevention Grant Act which shall be filed with the legislative rules committee by the first day of July, two thousand two.

(b) The legislative rule shall provide at least the following:

(1) That consideration of grant moneys distributed is contingent upon acquisition of a qualified tobacco technology expense;

(2) That an appropriate allocation process be provided for distribution of funds directly to the eligible retailers;

(3) Provisions which shall establish minimum standards of eligibility for retailers in regard to the approval or denial of any retailer's qualified tobacco technology expense grant application and subsequent approval or denial of any grant funds;

(4) That certain records are maintained by the retailer and made available to the department and that confidentiality of the records is clearly established; and

(5) That any grant funds not expended by the department at the end of each fiscal year shall be returned to the tobacco settlement fund.
§16-9D-7. Determination of qualified tobacco technology expense.

In prescribing standards for determining which tobacco technology expense is a qualified tobacco technology expense subject to approval for the grant program, the department shall require:

(1) A copy of the technology specifications demonstrating that the specifications meet the definition of a qualified tobacco access control expense;

(2) A copy of an invoice to the retailer for the technology purchased for qualification as a qualified tobacco technology expense; and

(3) A copy of the check or checks and paid receipts for technology purchased that would qualify as a qualified tobacco technology expense.
§16-9D-8. Effect of use of qualified tobacco technology.

Implementation of qualified tobacco technology by a retailer, in conjunction with the visual verification of the photographic identification of a consumer, as compared to the actual consumer, shall constitute prima facie evidence that the retailer properly identified the age of a consumer attempting to purchase a tobacco product in accordance with the laws of this state.
§16-9D-9. Availability of records.

Agents of the department shall have access upon request to all records developed and maintained by retailers as a result of implementation of this grant program.
§16-9D-10. Time limitation.

A retailer is not entitled to a qualified tobacco technology expense grant incurred in taxable years ending after the thirty-first day of December, two thousand five.