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Introduced Version Senate Bill 389 History

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Senate Bill No. 389

(By Senators Beach, Kirkendoll, Miller and Williams)

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         [Introduced February 27, 2013; referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary          .]                            

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A BILL to amend and reenact §16-9A-2, §16-9A-3, §16-9A-7 and §16-9A-8 of the Code of West Virginia, 1931, as amended, all relating to defining "alternative nicotine product" and "electronic cigarette"; prohibiting the sale of alternative nicotine products to individuals under eighteen years of age; prohibiting the use and possession of alternative nicotine products by an individual under eighteen years of age; adding alternative nicotine products to the list of products for which unannounced inspections may be conducted to ensure compliance with sales restrictions; and restricting the sale of alternative nicotine products in vending machines.
Be it enacted by the Legislature of West Virginia:
    That §16-9A-2, §16-9A-3, §16-9A-7 and §16-9A-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-2. Definitions; sale or gift of cigarette, cigarette paper, pipe, cigar, snuff, or chewing tobacco, or alterative nicotine products to persons under eighteen; penalties for first and subsequent offense; consideration of prohibited act as grounds for dismissal; impact on eligibility for unemployment benefits.
    
(a) In this article:
____(1) "Alternative nicotine product" means an electronic cigarette or any product that consists of or contains nicotine that can be ingested into the body by chewing, smoking, absorbing, dissolving, inhaling or by other means. An alternative nicotine product does not include a cigarette, or other tobacco product referenced in this article, a product that is a drug under 21 U.S.C. § 321(g)(1), a product that is a device under 21 U.S.C. § 321(h), or a combination product described in 21 U.S.C. 353(g);
____(2) "Electronic cigarette" means an electronic product or device that produces a vapor that delivers nicotine or other substances to the person inhaling from the device to simulate smoking, and is likely to be offered to, or purchased by consumers as an electronic cigarette, electronic cigar, electronic cigarillo or electronic pipe. Electronic cigarette does not include a cigarette, or other tobacco product referenced in this article, a product that is a drug under 21 U.S.C. § 321(g)(1), a product that is a device under 21 U.S.C. § 321(h), or a combination product described in 21 U.S.C. § 353(g).
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(a) (b) No person, 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:
    (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; or
____(3) Any alternative nicotine product, or any component or cartridge of an alternative nicotine product.
____
(b) (c) Any firm or corporation that violates any of the provisions of subdivision (1), (2) or (2) (3), subsection (a) (b) of this section and any individual who violates any of the provisions of subdivision (1), subsection (a) (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $50 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 $250 but not more than $500 for the second offense, if it occurs within two years of the first conviction; at least $500 but not more than $750 for the third offense, if it occurs within two years of the first conviction; and at least $1,000 but not more than $5,000 for any subsequent offenses, if the subsequent offense occurs within five years of the first conviction.
    (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 alternative nicotine product, or any component or cartridge of an alternative nicotine product
is guilty of a misdemeanor and, upon conviction thereof, for the first offense shall be fined not more than $100; upon conviction thereof for a second or subsequent offense, is guilty of a misdemeanor and shall be fined not less than $100 nor more than $500.
    (d) (e) Any employer who discovers that his or her employee has sold or furnished tobacco products or any alternative nicotine product, or any component or cartridge of an alternative nicotine product to minors may dismiss such employee for cause. Any such discharge shall be considered as "gross misconduct" for the purposes of determining the discharged employee's eligibility for unemployment benefits in accordance with the provisions of section three, article six, chapter twenty-one-a of this code, if the employer has provided the employee with prior written notice in the workplace that such act or acts may result in their termination from employment.
§16-9A-3. Use or possession of tobacco, or tobacco products, or alternative nicotine products by persons under the age of eighteen years; penalties.
    No person under the age of eighteen years shall have on or about his or her person or premises or use any cigarette, or 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; or
any alternative nicotine product, or any component or cartridge of an alternative nicotine product : Provided, That minors participating in the inspection of locations where tobacco products or alternative nicotine products are sold or distributed pursuant to section seven of this article is not considered to violate the provisions of this section. Any person violating the provisions of this section shall for the first violation be fined $50 and be required to serve eight hours of community service; for a second violation, the person shall be fined $100 and be required to serve sixteen hours of community service; and for a third and each subsequent violation, the person shall be fined $200 and be required to serve twenty-four hours of community service. Notwithstanding the provisions of section two, article five, chapter forty-nine, the magistrate court has concurrent jurisdiction.
§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 or alternative nicotine 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, or alternative nicotine product was sold, delivered, bartered, furnished or given:
          (1) The buyer or recipient falsely evidenced that he or she 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) 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) 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.
§16-9A-8. Selling of tobacco products in vending machines prohibited except in certain places.
  No person or business entity may offer for sale any cigarette, or other tobacco product, or alternative nicotine product in a vending machine. Any person or business entity which violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $250: Provided, That an establishment is exempt from this prohibition if individuals under the age of eighteen years are not permitted to be in the establishment or if the establishment is licensed by the Alcohol Beverage Control Commissioner as a Class A licensee. The Alcohol Beverage Control Commissioner shall promulgate rules pursuant to article three, chapter twenty-nine-a of this code prior to July 1, 2000, which rules shall establish standards for the location and control of the vending machines in Class A licensed establishments for the purpose of restricting access by minors.


  NOTE: The purpose of this bill is to define alternative nicotine products and electronic cigarettes; prohibit the sale of alternative nicotine products to individuals under eighteen years of age; prohibit the use and possession of alternative nicotine products by an individual under eighteen years of age; add alternative nicotine products to the list of products for which unannounced inspections may be conducted to ensure compliance with sales restrictions; and restrict the sale of alternative nicotine products in vending machines.


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