H. B. 2673
(By Delegate Petersen)
[Introduced February 23, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one, two and three, article
nine-a, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article nine-a by adding thereto five new
sections, designated sections two-a, eight, nine, ten and
eleven, all relating to discouraging the use and
distribution of tobacco products; prohibiting sales or gifts
of tobacco products, pipes and cigarette papers to persons
under the age of eighteen years; requiring posting of signs
by businesses selling tobacco products, pipes and cigarette
papers; prohibiting the offer, sale or gift of tobacco products, pipes and cigarette papers by or from a vending
machine location; lock-out device required; penalty for
violation; defense; the establishment of tobacco products
control certificates, prohibitions, application procedures,
duration of certificates and establishment of fees to assist
enforcement of article nine-a, chapter sixteen of said code;
the issuance, suspension, revocation and amendment of such
certificates; violations and criminal penalties;
administrative and civil penalties; promulgation of
legislative rules by the commissioner of alcoholic beverage
control; qualification of a responsible retail dealer; and
required training.
Be it enacted by the Legislature of West Virginia:
That sections one, two and three, article nine-a, chapter
sixteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that said
article nine-a be further amended by adding thereto five new
sections, designated sections two-a, eight, nine, ten and eleven,
all to read as follows:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1. Legislative intent.
The Legislature hereby declares it to be the policy and
intent of this state to discourage the use of tobacco products
generally and ban to eliminate the use of tobacco products by
minors. As a basis for this policy, the Legislature hereby finds
and accepts the medical evidence that smoking the use of tobacco
products and exposure to tobacco smoke may cause causes lung
cancer, heart disease, emphysema, and other serious health
problems, while the use of smokeless tobacco may cause gum
disease, oral cancer and other serious health problems. It is
the further intent of the Legislature, in banning eliminating the
use of tobacco products by minors, to: (a) Prevent the exposure
of young people to the addictive effects of nicotine; (b) ease
prevent the personal tragedy of terminal illnesses caused by the
use of tobacco products; and (c) eradicate the severe economic
loss associated with the use of tobacco; and (d) to provide the
state with a citizenry free from the use of tobacco.
§16-9A-2. Sale or gift of cigarette, cigarette paper, pipe,
cigar, snuff or chewing tobacco to persons under
eighteen; posting of signs required; penalty.
(a) No person, firm or corporation 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, 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, pipe, snuff, chewing tobacco or tobacco
product, in any form.
(b) A person may not engage in or prosecute any business
activity, as that term is defined in section two, article twelve,
chapter eleven of this code, involving the sale, transfer or
distribution of any cigarette, cigar, pipe, snuff, chewing
tobacco, other tobacco product in any form, cigarette paper or
any other paper prepared, manufactured or made for the purpose of
smoking tobacco or of smoking any other substance without first
conspicuously posting and maintaining a sign near or at the point
of sale, near each display of the item and on each vending
machine which offers the item or items for sale. The posted sign
shall include only the following message:
THE SALE OR GIFT OF TOBACCO PRODUCTS
TO PERSONS UNDER 18 YEARS OF AGE
IS PROHIBITED BY WEST VIRGINIA LAW
(WEST VIRGINIA CODE §16-9A-2)
(c) Any person, firm or corporation violating any of the
provisions of subdivisions subdivision (a) (1) or (b) (2) of this
section is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not less than ten twenty nor more than twenty-five
one hundred dollars for the first offense, and for each
subsequent offense, not less than twenty-five fifty nor more than
three hundred dollars.
§16-9A-2a. Sale of tobacco products by means of vending
machines; location; lock-out device required;
penalty.
No person, firm or corporation may install or maintain a
vending machine to distribute or sell tobacco products within
this state, unless:
(1) There is posted on the vending machine, in a conspicuous
place, the sign required by section two of this article;
(2) The owner or operator of the vending machine has
obtained and posted on the machine the required tobacco products
control certificate authorized by this article; and either
(3) The vending machine is located in a bar, or in an area
from which minors are excluded by law; or
(4) The vending machine is located in clear view, of the person responsible for supervising the operation of the vending
machine, and there is installed on the vending machine a lock-out
device which renders the vending machine not operable, unless an
activating switch is operated by the attendant responsible for
supervising the operation of the vending machine. The operation
of the activating switch shall constitute a sale of tobacco
products.
Any person, firm or corporation who sells or distributes
tobacco products by means of a vending machine in violation of
any provision of this section is guilty of a misdemeanor, and,
upon conviction thereof, shall be fined one hundred dollars, and
each day of continued operation in violation of this section,
after being cited by proper authority, constitutes a separate
offense.
§16-9A-3. Purchase, use, or possession of tobacco or tobacco
products by persons under the age of eighteen years;
penalty.
No person under the age of eighteen years shall purchase, or
have on or about his or her person or premises or use any
cigarette, 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. Any person violating the provisions of this
section is punishable by a fine of five dollars and guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than twenty dollars nor more than one hundred dollars.
Notwithstanding the provisions of section one, article five,
chapter forty-nine, the magistrate court shall magistrate courts
have concurrent jurisdiction over violations of the provisions of
this section.
Nothing in this article, nor any rule of the commissioner,
prevents or prohibits any person who is less than eighteen but at
least sixteen years of age from being employed by a certificate
holder whose principal business is the sale of food or consumer
goods or the providing of recreational activities, including, but
not limited to, nationally franchised fast food outlets,
family-oriented restaurants, bowling alleys, drug stores,
discount stores, grocery stores and convenience stores:
Provided,
That such person does not sell or deliver tobacco,
tobacco products or cigarette papers.
Any person under the age of eighteen years who, for the
purpose of purchasing tobacco, tobacco products and cigarette
papers from a certificate holder, misrepresents his or her age,
or who for such purpose presents or offers any written evidence
of age which is false, fraudulent or not actually his or her own,
or who illegally attempts to purchase tobacco, tobacco products
or cigarette papers, is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined in an amount not to exceed
fifty dollars or shall be imprisoned in the county jail for a
period not to exceed seventy-two hours, or both fined and
imprisoned, or, in lieu of such fine and imprisonment, may, for
the first offense, be placed on probation for a period not
exceeding one year.
A person charged with a violation 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:
(a) The buyer or recipient provided false evidence that he
or she is eighteen years of age or older;
(b) 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
(c) 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.
Any person who requests, persuades or encourages any other
person under the age of eighteen to buy or otherwise obtain
tobacco, tobacco products or cigarette papers and any person who
knowingly buys for, gives to or furnishes tobacco, tobacco
products or cigarette papers from any source to anyone under the
age of eighteen for the purpose of smoking tobacco or for smoking
any other substance is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than one hundred
dollars or imprisoned in the county or regional jail not more
than ten days, or both fined and imprisoned. Nothing herein
prohibits the enforcement of this article by appropriate licensing officials or law-enforcement officers.
§16-9A-8. Tobacco products control certificate required;
prohibitions; application procedure; duration of
certificate; fees for certificates to assist
enforcement of article; issuance, suspension,
revocation and amendment; violations; criminal and
administrative penalties.
(a) In addition to complying with the provisions of article
twelve, chapter eleven of this code, no person may engage in or
prosecute, in the state of West Virginia, any business activity,
as that term is defined in section two, article twelve, chapter
eleven of this code, involving the sale, transfer or distribution
of any cigarette, cigar, pipe, snuff, chewing tobacco, other
tobacco product in any form, cigarette paper or any other paper
prepared, manufactured or made for the purpose of smoking tobacco
or of smoking any other substance, without first having obtained
a tobacco products control certificate from the alcohol beverage
control commissioner.
(b) A fee of one thousand dollars is imposed for each
tobacco products control certificate for a wholesale business.
A fee of fifty dollars is imposed for each tobacco products control certificate for a subjobber business. A fee of fifteen
dollars is imposed for each tobacco products control certificate
for a retail business. A fee of fifteen dollars is imposed for
each tobacco products control certificate for a vending business.
All tobacco products control certificate fees collected shall be
deposited in a special account in the state treasury to be used
by the alcohol beverage control commissioner to administer and
enforce the provisions of this article. No political subdivision
of this state may impose an additional fee or tax for the purpose
of regulating the sale on distribution of tobacco products.
(c) A separate tobacco products control certificate is
required for each fixed business location from which the sale,
transfer or distribution of any item set forth in subsection (a)
of this section is offered to the public as a class, or to a
limited portion thereof, or at which customer accounts may be
opened, closed or serviced. A separate tobacco products control
certificate is not required for each vending machine. However,
a separate certificate is required for each location from which
one or more vending machines available to the public constitute
a business activity. Any business that sells, transfers or distributes any tobacco product from one or more vehicles is
required to obtain a separate tobacco products control
certificate for each fixed location in this state from which the
business is conducted. A copy of the required business
certificate shall be carried in each vehicle and publicly
displayed.
(d) Any person, seeking a tobacco products control
certificate, may apply to the alcohol beverage control
commissioner for a certificate. Every tobacco products control
certificate shall be issued for a period of not more than one
year and shall terminate on the thirtieth day of June of the
fiscal year in which the period begins. The commissioner may
issue the requested certificate or may, for good cause shown,
refuse to issue it or issue it with restrictions. Every
certificate shall clearly indicate the address of the fixed
business location for which the certificate is applicable. For
good cause shown, the commissioner may, at any time, suspend or,
after fifteen-days' notice to the holder of a tobacco products
control certificate and an opportunity for the holder to request
a hearing, revoke or reduce the scope of a certificate. In a hearing on the suspension, revocation, amendment or refusal to
issue a certificate, the applicant for, or holder of, a
certificate must demonstrate by a preponderance of the evidence
that the commissioner lacked good cause for suspending, revoking,
amending or refusing to issue the certificate in question. Good
cause includes, but is not be limited to: (1) The violation of
this article or rules promulgated by the commissioner, by the
applicant for, or holder of, one or more certificates, or by an
officer, director or major stockholder thereof; (2) fraud by the
applicant or holder; (3) failure by the applicant or holder to
pay the fees for the certificates; (4) the proximity of a
business location of the applicant or holder to a place or places
frequented by persons under eighteen years of age; and (5) other
good cause.
(e) Any person who violates the provisions of subsection (a)
of this section is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than one hundred nor more than
one thousand dollars for each separate offense. Any person or
entity continuing to sell tobacco or tobacco products after
having their tobacco products control certificate revoked is guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than two hundred nor more than two thousand
dollars for each separate offense. In addition to the criminal
penalty set forth herein, the alcohol beverage control
commissioner, after hearing or the opportunity to be heard, may
also, or in the alternative, impose an administrative penalty of
not more than one thousand dollars for each separate offense on
any person who violates subsection (a) of this section. Payments
of the administrative penalties shall be deposited in the special
account established in subsection (b) of this section. Each day
of a continuing violation constitutes a separate offense.
Nothing in this paragraph may be construed to limit the
commissioner from invoking other remedies in the enforcement of
this section.
§16-9A-9. Rules; liberal construction.
The alcohol beverage control commissioner shall promulgate
necessary rules to implement the provisions of this article. The
provisions of this article are to be liberally construed.
§16-9A-10. Report to governor.
The commissioner shall prepare and submit to the governor on the first day of April, one thousand nine hundred ninety-six, and
on the same date of each year thereafter, a report suitable for
submission by the governor to the secretary of the United States
department of health and human services, conforming in form and
substance to the requirements of section one thousand nine
hundred twenty-six of subpart I of part B of Title XIX of the
federal Public Health Service Act (42 U.S.C. 300X-26). The
report shall, at a minimum, summarize actions taken to assure
enforcement of the provisions of this article, and the results of
such enforcement.
§16-9A-11.
Responsible retail tobacco products dealers;
qualifications; mitigation of disciplinary
penalties.
(a) The Legislature intends to prevent the sale of tobacco
products to underage persons and to encourage retail tobacco
products dealers to comply with responsible practices in
accordance with this section.
(b) To qualify as a responsible retail tobacco products
dealer, the dealer must establish and implement procedures
designed to ensure that the dealer's employees comply with the
provisions of this article. The dealer must provide a training program for the dealer's employees which addresses the use and
sale of tobacco products and which includes at least the
following topics:
(1) Laws covering the sale of tobacco products;
(2) Methods of recognizing and handling underage customers;
(3) Procedures for proper examination of identification
cards in order to verify that customers are not underage;
(4) The use of the age audit identification function on
electronic point-of-sale equipment, where available.
(c) In determining penalties under section three of this
article, the alcohol beverage control commission may mitigate
penalties imposed against a dealer because of an employee's
illegal sale of a tobacco product to a person under eighteen
years of age if the following conditions are met:
(1) The dealer is qualified as a responsible dealer under
this section;
(2) The dealer provided the training program required under
subsection (b) of this section to that employee before the
illegal sale occurred;
(3) The dealer had no knowledge of that employee's violation at the time of the violation and did not direct, approve or
participate in the violation.
(d) The alcohol beverage control commissioner shall develop
and make available a model tobacco products training program
designed to ensure adherence to this article by dealers and their
employees which, if followed, will qualify dealers as responsible
dealers.
NOTE: The purposes of this bill are to: (1) Prohibit the
sale or gift of tobacco products to persons under the age of
eighteen years; (2) require posting of signs warning against
sales of tobacco products to persons under eighteen years of age;
(3) requiring lock-out devices and prohibiting the sale or gift
of tobacco products, pipes and cigarette papers by or from coin
or money activated vending machines to persons under the age of
eighteen years; (4) establish a requirement that businesses
selling tobacco products first apply for and obtain a tobacco
products control certificate from the alcohol beverage control
commissioner; (5) establish fees and procedures applicable to the
issuance, suspension, revocation and duration of certificates;
(6) establish criminal and administrative penalties for
violations; (7) provide a funding mechanism for enforcement of
this article; (8) authorize the alcohol beverage control
commissioner to promulgate rules; and (9) requiring an annual
report to the Governor.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§16-9A-2a, 8, 9, 10 and 11 are new; therefore, strike-throughs and underscoring have been omitted.