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Chapter 16     Entire Code


ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.

ARTICLE 1A. UNIFORM CREDENTIALING FOR HEALTH CARE PRACTITIONERS.

ARTICLE 1B. SKILLED NURSING FACILITIES FOR VETERANS OF THE UNITED STATES ARMED FORCES.

ARTICLE 1C. HEALTH CARE PROVIDER TRANSPARENCY ACT.

ARTICLE 2. LOCAL BOARDS OF HEALTH.

ARTICLE 2A. ALTERNATIVE METHOD OF ORGANIZING LOCAL HEALTH AGENCIES.

ARTICLE 2B. FAMILY PLANNING AND CHILD SPACING.

ARTICLE 2C. HOME HEALTH SERVICES.

ARTICLE 2D. CERTIFICATE OF NEED.

ARTICLE 2E. BIRTHING CENTERS.

ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED ON UNEMANCIPATED MINORS.

ARTICLE 2G. SPECIAL SUPPLEMENTARY FOOD PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC).

ARTICLE 2H. PRIMARY CARE SUPPORT PROGRAM.

ARTICLE 2I. WOMEN\'S RIGHT TO KNOW ACT.

ARTICLE 2J. PREVENTIVE CARE PILOT PROGRAM.

ARTICLE 2K. PROGRAMS OF ALL-INCLUSIVE CARE FOR THE ELDERLY, \"PACE\".

ARTICLE 2L. PROVIDER SPONSORED NETWORKS.

ARTICLE 2M. THE PAIN-CAPABLE UNBORN CHILD PROTECTION ACT.

ARTICLE 2N. NEONATAL ABSTINENCE CENTERS.

ARTICLE 2O. UNBORN CHILD PROTECTION FROM DISMEMBERMENT ABORTION ACT.

ARTICLE 3. PREVENTION AND CONTROL OF COMMUNICABLE AND OTHER INFECTIOUS DISEASES.

ARTICLE 3A. REPOSITORY OF INFORMATION ON MEDICAL TREATMENT FOR CERTAIN HAZARDOUS MATERIALS; REQUEST FOR INFORMATION; PENALTIES; ENFORCEMENT.

ARTICLE 3B. PERTUSSIS.

ARTICLE 3C. AIDS-RELATED MEDICAL TESTING AND RECORDS CONFIDENTIALITY ACT.

ARTICLE 3D. TUBERCULOSIS TESTING, CONTROL, TREATMENT AND COMMITMENT.

ARTICLE 4. SEXUALLY TRANSMITTED DISEASES.

ARTICLE 4A. PRENATAL EXAMINATION.

ARTICLE 4B. AUTOPSIES ON BODIES OF DECEASED PERSONS.

ARTICLE 4C. EMERGENCY MEDICAL SERVICES ACT.

ARTICLE 4D. AUTOMATED EXTERNAL DEFIBRILLATORS.

ARTICLE 4E. UNIFORM MATERNAL SCREENING ACT.

ARTICLE 4F. EXPEDITED PARTNER THERAPY.

ARTICLE 5. VITAL STATISTICS.

ARTICLE 5A. CANCER CONTROL.

ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.

ARTICLE 5C. NURSING HOMES.

ARTICLE 5D. ASSISTED LIVING RESIDENCES.

ARTICLE 5E. REGISTRATION AND INSPECTION OF SERVICE PROVIDERS IN LEGALLY UNLICENSED HEALTH CARE HOMES.

ARTICLE 5F. HEALTH CARE FINANCIAL DISCLOSURE.

ARTICLE 5G. OPEN HOSPITAL PROCEEDINGS.

ARTICLE 5H. CHRONIC PAIN CLINIC LICENSING ACT.

ARTICLE 5I. HOSPICE LICENSURE ACT.

ARTICLE 5J. CLINICAL LABORATORIES QUALITY ASSURANCE ACT.

ARTICLE 5K. EARLY INTERVENTION SERVICES FOR CHILDREN WITH DEVELOPMENTAL DELAYS.

ARTICLE 5L. LONG-TERM CARE OMBUDSMAN PROGRAM.

ARTICLE 5M. OSTEOPOROSIS PREVENTION EDUCATION ACT.

ARTICLE 5N. RESIDENTIAL CARE COMMUNITIES.

ARTICLE 5O. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.

ARTICLE 5P. SENIOR SERVICES.

ARTICLE 5Q. THE JAMES \"TIGER\" MORTON CATASTROPHIC ILLNESS FUND.

ARTICLE 5R. THE ALZHEIMER\'S SPECIAL CARE STANDARDS ACT.

ARTICLE 5S. OLDER WEST VIRGINIANS ACT.

ARTICLE 5T. OFFICE OF DRUG CONTROL POLICY.

ARTICLE 5U. ARTHRITIS PREVENTION EDUCATION ACT.

ARTICLE 5V. EMERGENCY MEDICAL SERVICES RETIREMENT SYSTEM ACT.

ARTICLE 5W. WEST VIRGINIA OFFICIAL PRESCRIPTION PROGRAM ACT.

ARTICLE 5X. CAREGIVER ADVISE, RECORD AND ENABLE ACT.

ARTICLE 5Y. MEDICATION-ASSISTED TREATMENT PROGRAM LICENSING ACT.

ARTICLE 5Z. COALITION FOR DIABETES MANAGEMENT.

ARTICLE 6. HOTELS AND RESTAURANTS.

ARTICLE 7. PURE FOOD AND DRUGS.

ARTICLE 8. ELECTROLOGISTS.

ARTICLE 8A. NARCOTIC DRUGS.

ARTICLE 8B. DANGEROUS DRUGS ACT.

ARTICLE 9. OFFENSES GENERALLY.

ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.

ARTICLE 9B. IMPLEMENTING TOBACCO MASTER SETTLEMENT AGREEMENT.

ARTICLE 9C. STATE TOBACCO GROWERS\' SETTLEMENT BOARD.

ARTICLE 9D. ENFORCEMENT OF STATUTES IMPLEMENTING TOBACCO MASTER SETTLEMENT AGREEMENT.

ARTICLE 9F. COUNTERFEIT CIGARETTES.

ARTICLE 10. UNIFORM DETERMINATION OF DEATH ACT.

ARTICLE 11. SEXUAL STERILIZATION.

ARTICLE 12. SANITARY DISTRICTS FOR SEWAGE DISPOSAL.

ARTICLE 13. SEWAGE WORKS AND STORMWATER WORKS.

ARTICLE 13A. PUBLIC SERVICE DISTRICTS.

ARTICLE 13B. COMMUNITY IMPROVEMENT ACT.

ARTICLE 13C. DRINKING WATER TREATMENT REVOLVING FUND ACT.

ARTICLE 13D. REGIONAL WATER AND WASTEWATER AUTHORITY ACT.

ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.

ARTICLE 14. BARBERS AND COSMETOLOGISTS.

ARTICLE 15. STATE HOUSING LAW.

ARTICLE 16. HOUSING COOPERATION LAW.

ARTICLE 17. NATIONAL DEFENSE HOUSING.

ARTICLE 18. SLUM CLEARANCE.

ARTICLE 19. ANATOMICAL GIFT ACT.

ARTICLE 20. AIR POLLUTION CONTROL.

ARTICLE 21. BLOOD DONATIONS.

ARTICLE 22. DETECTION AND CONTROL OF PHENYLKETONURIA, GALACTOSEMIA, HYPOTHYROIDISM, AND CERTAIN OTHER DISEASES IN NEWBORN CHILDREN.

ARTICLE 22A. TESTING OF NEWBORN INFANTS FOR HEARING IMPAIRMENTS.

ARTICLE 22B. BIRTH SCORE PROGRAM.

ARTICLE 23. TRANSFUSION OF BLOOD; TRANSPLANTING HUMAN ORGANS OR TISSUE.

ARTICLE 24. STATE HEMOPHILIA PROGRAM.

ARTICLE 25. DETECTION OF TUBERCULOSIS, HIGH BLOOD PRESSURE AND DIABETES.

ARTICLE 26. WEST VIRGINIA SOLID WASTE MANAGEMENT BOARD.

ARTICLE 27. STORAGE AND DISPOSAL OF RADIOACTIVE WASTE MATERIALS.

ARTICLE 27A. BAN ON CONSTRUCTION OF NUCLEAR POWER PLANTS.

ARTICLE 28. ASSISTANCE TO KOREAN AND VIETNAM VETERANS EXPOSED TO CERTAIN CHEMICAL DEFOLIANTS OR HERBICIDES OR OTHER CAUSATIVE AGENTS, INCLUDING AGENT ORANGE.

ARTICLE 29. HEALTH CARE RECORDS.

ARTICLE 29A. WEST VIRGINIA HOSPITAL FINANCE AUTHORITY ACT.

ARTICLE 29B. HEALTH CARE AUTHORITY.

ARTICLE 29C. INDIGENT CARE.

ARTICLE 29D. STATE HEALTH CARE.

ARTICLE 29E. LEGISLATIVE OVERSIGHT COMMISSION ON HEALTH AND HUMAN RESOURCES ACCOUNTABILITY.

ARTICLE 29F. UNINSURED AND UNDERINSURED PILOT PROGRAMS.

ARTICLE 29G. WEST VIRGINIA HEALTH INFORMATION NETWORK.

ARTICLE 29H. INTERAGENCY HEALTH COUNCIL.

ARTICLE 29I. WEST VIRGINIA HEALTH CARE AUTHORITY REVOLVING LOAN AND GRANT FUND.

ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.

ARTICLE 30A. MEDICAL POWER OF ATTORNEY.

ARTICLE 30B. HEALTH CARE SURROGATE ACT.

ARTICLE 30C. DO NOT RESUSCITATE ACT.

ARTICLE 31. COMMUNITY RIGHT TO KNOW.

ARTICLE 32. ASBESTOS ABATEMENT.

ARTICLE 33. BREAST AND CERVICAL CANCER PREVENTION AND CONTROL ACT.

ARTICLE 34. LICENSURE OF RADON MITIGATORS, TESTERS, CONTRACTORS AND LABORATORIES.

ARTICLE 35. LEAD ABATEMENT.

ARTICLE 36. NEEDLESTICK INJURY PREVENTION.

ARTICLE 37. BODY PIERCING STUDIO BUSINESS.

ARTICLE 38. TATTOO STUDIO BUSINESS.

ARTICLE 39. PATIENT SAFETY ACT.

ARTICLE 40. STATEWIDE BIRTH DEFECTS INFORMATION SYSTEM.

ARTICLE 41. ORAL HEALTH IMPROVEMENT ACT.

ARTICLE 42. COMPREHENSIVE BEHAVIORAL HEALTH COMMISSION.

ARTICLE 43. ENGINE COOLANT AND ANTIFREEZE.

ARTICLE 44. THE PULSE OXIMETRY NEWBORN TESTING ACT.

ARTICLE 45. TANNING FACILITIES.

ARTICLE 46. ACCESS TO OPIOID ANTAGONISTS ACT.

ARTICLE 47. ALCOHOL AND DRUG OVERDOSE PREVENTION AND CLEMENCY ACT.

ARTICLE 48. WEST VIRGINIA ABLE ACT.

ARTICLE 49. WEST VIRGINIA CLEARANCE FOR ACCESS: REGISTRY AND EMPLOYMENT SCREENING ACT.

ARTICLE 50. EPINEPHRINE AUTO-INJECTOR AVAILABILITY AND USE.

ARTICLE 51. RIGHT TO TRY ACT.

ARTICLE 52. COALITION FOR RESPONSIBLE PAIN MANAGEMENT.

ARTICLE 53. ESTABLISHING ADDITIONAL SUBSTANCE ABUSE TREATMENT FACILITIES.

ARTICLE 54. OPIOID REDUCTION ACT.

ARTICLE 54. STATE ADVISORY COALITION ON PALLIATIVE CARE.

ARTICLE 9E. DELIVERY SALES OF TOBACCO.

§16-9E-1. Definitions.

For purposes of this article:

(a) "Adult" means a person who is at least the legal minimum purchase age, as defined by section two, article nine-a of this chapter.

(b) "Consumer" means an individual who does not hold a business registration certificate in this state for the business of selling tobacco products as a wholesale or retail dealer.

(c) "Delivery sale" means any sale of cigarettes to a consumer in this state where either: (1) The purchaser submits the order for such sale by means of a telephonic or other method of voice transmission, the mails or any other delivery service, or the Internet or other online service; or (2) the cigarettes are delivered by use of the mails or a delivery service. A sale of cigarettes shall be a delivery sale regardless of whether or not the seller is located within this state. A sale of cigarettes not for personal consumption to a person who holds a business registration certificate as a wholesale dealer or a retail dealer shall not be a delivery sale.

(d) "Delivery service" means any person who is engaged in the commercial delivery of letters, packages, or other containers.

(e) "Department" means the State Tax Department.

(f) "Legal minimum purchase age" is at least eighteen years of age as defined by section two, article nine-a of this chapter for the purchase of cigarettes in this state.

(g) "Mails" or "mailing" means the shipment of cigarettes through the United States postal service.

(h)"Shipping container" means a container in which cigarettes are shipped in connection with a delivery sale.

(i) "Shipping documents" means bills of lading, airbills, or any other documents used to evidence the undertaking by a delivery service to deliver letters, packages, or other containers.

§16-9E-2. Requirements for delivery sales.

(a) No person shall make a delivery sale of cigarettes to any individual who is under the legal minimum purchase age in this state.

(b) Each person accepting a purchase order for a delivery sale shall comply with:

(1) The age verification requirements set forth in section three of this article;

(2) The disclosure requirements set forth in subdivision (3), subsection (a), section three of this article;

(3) The shipping requirements set forth in section four of this article;

(4) The registration and reporting requirements set forth in section five of this article;

(5) The tax collection requirements set forth in section six of this article; and

(6) All other laws of this state generally applicable to sales of cigarettes that occur entirely within this state, including, but not limited to, those laws imposing: (i) Excise taxes; (ii) sales taxes; (iii) license and revenue-stamping requirements; and (iv) escrow or other payment obligations.

§16-9E-3. Age verification requirements.

(a) No person shall mail, ship, or otherwise deliver cigarettes in connection with a delivery sale unless prior to the first delivery sale to a consumer, the person:

(1) Obtains from the prospective consumer a certification that includes a reliable confirmation that the consumer is at least the legal minimum purchase age and a statement signed by the prospective consumer in writing that certifies the prospective consumer's address and that the consumer is at least eighteen years of age. The statement shall also confirm: (i) That the prospective consumer understands that it is illegal to sign another person's name to the certification; (ii) that the sale of cigarettes to individuals under the legal minimum purchase age is illegal; and (iii) that the purchase of cigarettes by individuals under the legal minimum purchase age is illegal under the laws of this state;

(2) Verifies the information contained in the certification provided by the prospective consumer against an appropriate database of government records available to the distributor or seller, or obtains simultaneous with the certificate as provided for in subdivision (1), a photocopy or other image of the valid, government-issued identification stating the date of birth or age of the individual placing the order;

(3) Sends to the prospective consumer, via e-mail or other means, a notice that contains: (A) A prominent and clearly legible statement that cigarette sales to a consumer below the legal minimum purchase age is illegal; (B) a prominent and clearly legible statement that consists of one of the warnings set forth in section 4(a)(1) of the federal Cigarette Labeling and Advertising Act, 15 U.S.C. §1333(a)(1), rotated on a quarterly basis; (C) a prominent and clearly legible statement that sales of cigarettes are restricted to those consumers who provide verifiable proof of age in accordance with section three of this article; and (D) a prominent and clearly legible statement that cigarette sales are subject to excise and sales taxes in this state, and an explanation of how such taxes have been, or are to be, paid with respect to the delivery sale.

(4) In the case of an order for cigarettes pursuant to an advertisement on the Internet, receives payment for the delivery sale from the prospective consumer by a credit or debit card or check that has been issued in the consumer's name.

(b) Persons accepting purchase orders for delivery sales may request that prospective consumers provide their e-mail addresses.

§16-9E-4. Shipping requirements.

(a) Each person who mails, ships, or otherwise delivers cigarettes in connection with a delivery sale:

(1) Shall include as part of the bill of lading or other shipping documents a clear and conspicuous statement providing as follows: "Cigarettes: West Virginia Law Prohibits Shipping to Individuals Under 18, and Requires the Payment of all Applicable Taxes";

(2) Shall use a method of mailing, shipping, or delivery that obligates the delivery service to require: (i) The consumer placing the purchase order for the delivery sale, or another adult of legal minimum purchase age, to sign to accept delivery of the shipping container; and (ii) proof, in the form of a valid, government-issued identification bearing a photograph of the individual who signs to accept delivery of the shipping container, demonstrating that he is either the addressee or another adult of legal minimum purchase age; and

(3) Shall provide to the delivery service retained for such delivery sale evidence of full compliance with section seven of this article.

(b) A delivery service shall be in violation of this article if it: (1) Ships or otherwise delivers cigarettes in connection with a delivery sale without first receiving evidence of compliance with section seven of this article; or (2) fails to comply with the requirements described in subsection (a) or described in section six of this article:

(1) When obligated to do so under a method of shipping or delivery;

(2) When delivering any container pursuant to shipping documents containing the statement described in subdivision (1), subsection (a) of this section; or

(3) When delivering any container that the delivery service otherwise has reason to know contains cigarettes.

(c) If the person accepting a purchase order for a delivery sale delivers the cigarettes without using a delivery service, that person shall comply with all requirements of this article applicable to a delivery service and shall be in violation of the provisions of this article upon failure to comply with the requirements.

§16-9E-5. Registration and reporting requirements.

(a) Prior to making delivery sales or mailing, shipping, or otherwise delivering cigarettes in connection with any such sales, every person shall file with the department a statement setting forth the seller's name, trade name, and the address of the seller's principal place of business and any other place of business.

(b) Not later than the tenth day of each calendar month, each person that has made a delivery sale or mailed, shipped, or otherwise delivered cigarettes in connection with any such sale during the previous calendar month shall file with the department a memorandum or a copy of the invoice that provides for each and every delivery sale:

(1) The name and address of the consumer to whom the delivery sale was made;

(2) The brand or brands of the cigarettes that were sold in the delivery sale; and

(3) The quantity of cigarettes that were sold in the delivery sale.

(c) Any person that satisfies the requirements of 15 U.S.C. §376 shall be deemed to satisfy the requirements of this section.

§16-9E-6. Collection of taxes.

Each person accepting a purchase order for a delivery sale shall collect and remit to the department all cigarette taxes imposed by this state with respect to such delivery sale, except that the collection and remission shall not be required to the extent the person has obtained proof, in the form of the presence of applicable tax stamps or otherwise, that the taxes already have been paid to this state.

§16-9E-7. Penalties.

(a) Except as otherwise provided in this section, a first violation of any provision of this article shall be a misdemeanor and, punishable by a fine of $500 or five times the retail value of the cigarettes involved, whichever is greater.

(b) Any person who knowingly violates any provision of this article, or who knowingly and falsely submits a certification under section three of this article in another person's name, shall be guilty of a misdemeanor, be fined $1,000 or ten times the retail value of the cigarettes involved, whichever is greater, or confined not more than six months, or both.

(c) Any person failing to collect or remit to the department any tax required in connection with a delivery sale shall be assessed, in addition to any other penalty, a penalty of five times the retail value of the cigarettes involved.

(d) Any cigarettes sold or attempted to be sold in a delivery sale that does not meet the requirements of this article shall be forfeited to this state and destroyed. All fixtures, equipment, and all other materials and personal property on the premises of any person who, with the intent to defraud this state, violates any of the requirements of this article, shall be forfeited to this state.

§16-9E-8. Enforcement.

For violations of this article resulting in a delivery of tobacco products in this state, the prosecuting attorney of the county where the delivery is made shall have the power to prosecute the violation and to bring any action necessary to prevent further violations. The Attorney General or any person who holds a valid permit under 26 U.S.C. §5712 may bring any actions required to enforce all other requirements of this article and to prevent all other violations of its provisions.

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