WEST virginia legislature
2019 regular session
Engrossed
Committee Substitute
for
Committee Substitute
for
Senate Bill 348
Senators Takubo, Maroney, Prezioso, Stollings, Jeffries, Woelfel, Ihlenfeld, Baldwin, and Cline, original sponsors
[Originating in the Committee on the Judiciary; Reported on February 23, 2019]
A BILL to amend and reenact §16-9A-1, §16-9A-2, §16-9A-3, §16-9A-4, §16-9A-7, and §16-9A-8 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto four new sections, designated §16-9A-11, §16-9A-12, §16-9A-13, and §16-9A-14, all relating to tobacco; providing legislative intent; defining terms; raising the legal age from 18 years of age to 21 years for the selling, furnishing, or distribution of tobacco products and increasing penalties for violations; making it illegal for a person under the age of 21 to purchase tobacco products or tobacco-derived products and providing for suspension of driving privileges or a fine; increasing the penalty for certain tobacco-related offenses on public school property; exempting any active duty military personnel over the age of 18; exempting veterans’ organizations from rules regulating smoking in indoor spaces adopted by local boards of health; prohibiting political subdivisions from legislating regarding the sale or marketing of tobacco products or tobacco-related products if contrary to state law; requiring certain facilities to provide for smoking and nonsmoking sections; and providing for a secondary offense of driving and using a tobacco product or a tobacco-derived product with a passenger under the age of 17 and providing for a fine.
Be it enacted by the Legislature of West Virginia:
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 and ban the
use of tobacco products by minors. As the basis for this policy, the
Legislature hereby finds and accepts the medical evidence that smoking tobacco
may cause lung cancer, heart disease, emphysema, and other serious health
problems while the use of smokeless tobacco may cause gum disease and oral
cancer. It is the further intent of the Legislature to reduce tobacco use by
keeping tobacco products out of the hands of youth and young adults in
banning the use of tobacco products by minors the sale of tobacco
products to persons under the age of 21 to ease the personal tragedy and
eradicate the severe economic loss associated with the use of tobacco and to
provide the state with a citizenry free from the use of tobacco.
§16-9A-2. Definitions. sale
or gift of cigarette, cigarette paper, pipe, cigar, snuff, chewing tobacco,
pipe tobacco, roll-your-own tobacco, tobacco products, and tobacco
derived and alternative nicotine product or vapor 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) For purposes of this article, the term:
(1) “Tobacco product” and
“tobacco-derived product” means any product, containing, made, or derived from
tobacco, or containing nicotine derived from tobacco, that is intended for
human consumption, whether smoked, breathed, chewed, absorbed, dissolved,
inhaled, vaporized, snorted, sniffed or ingested by any other means,
including, but not limited to, cigarettes, cigars, cigarillos, little
cigars, pipe tobacco, snuff, snus, chewing tobacco, or other common
tobacco-containing products. A “tobacco-derived product” includes electronic
cigarettes e- cigarettes or similar devices, alternative nicotine
products, heated tobacco products, and vapor products. “Tobacco product”
or “tobacco-derived product” does not include any product that is regulated by
the United States Food and Drug Administration under Chapter V of the Food,
Drug and Cosmetic Act.
(2) “Alternative nicotine product” means any noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. “Alternative nicotine product” does not include any tobacco product, vapor product, or product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.
(3) “Vapor product” means
any noncombustible product containing nicotine that employs a heating element,
power source, electronic circuit, or other electronic, chemical, or mechanical
means, regardless of shape and size, that can be used to produce vapor from
nicotine in a solution or other form. “Vapor product” includes any electronic
cigarette e-cigarette, electronic cigar, electronic cigarillo,
electronic pipe, or similar product or device and any vapor cartridge or other
container of nicotine in a solution or other form that is intended to be used
with or in an electronic cigarette e-cigarette, electronic cigar,
electronic cigarillo, electronic pipe, or similar product or device. “Vapor
product” does not include any product that is regulated by the United States
Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic
Act.
(4) “Heated tobacco product” means a product containing tobacco or any other solid substance containing nicotine (collectively tobacco) that produces an inhalable aerosol: (i) By heating the tobacco by means of an electronic device without combustion of the tobacco; or (ii) by heat generated from a combustion source that only or primarily heats rather than burns the tobacco.
(5) “E-cigarette” means an electrical or electronic device that provides a smoke, vapor, fog, mist, gas, or aerosol suspension of nicotine or another substance that, when used or inhaled, simulates the activity of smoking. The term e-cigarette includes, but is not limited to, a device that is composed of a heating element, battery, or electrical or electronic circuit, or a combination of a heating element, battery, and electrical or electronic circuit, which works in combination with e-liquid to produce an inhalable product. The term e-cigarette includes, but is not limited to, any so designed, or similarly designed, product that is manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, or under any other name or descriptor. The term “simulates the activity of smoking”, in the context of this definition, means replicating, mimicking, or reproducing an experience similar to inhaling, or otherwise drawing into the mouth or nose, or exhaling the smoke or combustion product of burning tobacco or any other product or material that can be used in a similar fashion.
(b) No A person,
firm, corporation, or business entity may not sell, give, or furnish, or
cause to be sold, given, or furnished, to any person under the age of 18
21 years:
(1) Any pipe, cigarette
paper, or any other paper prepared, manufactured, or made for the purpose of
smoking any tobacco or tobacco product;
(2) Any cigar,
cigarette, snuff, chewing tobacco, or tobacco product, in any form; or
(3) Any tobacco-derived product, alternative nicotine product, or vapor product.
(c) Any person, firm,
or corporation that violates any of the provisions of subsection (b) of
this section and any individual who violates any of the provisions of
subsection (b) of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined $50 $300 for the first
offense. Upon any subsequent violation at the same location or operating unit,
the person, firm, corporation, or individual shall be fined as follows:
At least $250 $600 but not more than $500 for the second
offense, if it occurs within two years of the first conviction; at least $500
$1,000 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.
(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, tobacco product or tobacco-derived product,
in any form, 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
(e) (d) Any employer who discovers that his or her
employee has sold or furnished tobacco products or tobacco-derived products to
minors to persons under the age of 21 may dismiss such that
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 §21A-6-3
of this code, if the employer has provided the employee with prior written
notice in the workplace that such the act or acts may result in their
his or her termination from employment.
§16-9A-3.Use
or possession Purchase of tobacco or tobacco products, alternative
nicotine products, or vapor products by persons under the age of 18 21
years; penalties.
A person under
the age of 18 21 years shall not have on or about his or her
person or premises or use may not purchase any cigarette, or
cigarette paper, or any other paper prepared, manufactured, or made for the
purpose of smoking any tobacco products, in any form; any pipe, snuff, chewing
tobacco, tobacco product, or tobacco-derived product: Provided, That
minors
participating in the inspection of locations where tobacco products or
tobacco-derived products are sold or distributed pursuant to §16-9A-7 of this
code are not considered to violate the provisions of this section. Any person
violating the provisions of this section who has a valid West Virginia
driver’s license shall have his or her driver’s license suspended for 30 days.
Any person violating the provisions of this section who does not have a valid
West Virginia driver’s license 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 16
hours of community service; and for a third and each subsequent violation, the
person shall be fined $200 and be required to serve 24 hours of community
service. Notwithstanding the provisions of §49-4-701 of this code, the
magistrate court has concurrent jurisdiction.
§16-9A-4. Use of tobacco, tobacco products, alternative nicotine products, or vapor products in certain areas of certain public schools prohibited; penalty.
Every person who shall smoke smokes a
cigarette or cigarettes, pipe, cigar, or other implement, of any type or
nature, designed, used, or employed for smoking any tobacco or tobacco product;
or who shall use uses any tobacco product, or tobacco-derived
product in any building or part thereof of a building used for
instructional purposes, in any school of this state, as defined in §18-1-1 of
this code, or on any lot or grounds actually used for instructional purposes of
any such school of this state while such the school is
used or occupied for school purposes, shall be is guilty of a
misdemeanor and, upon conviction thereof, shall be punished for each offense by
a fine of not less than $1 nor more than five dollars $25: Provided,
That this prohibition shall not be construed to does not prevent
the use of any tobacco, or tobacco product, or tobacco-derived product
in any faculty lounge, or staff lounge, or faculty office or other area
of said a public school not used for instructional porposes
purposes Provided, however, That if
students do not have access thereto to the faculty lounge, staff
lounge, or faculty office. Provided further, That nothing
herein contained shall be construed to This section does not prevent
any county board of education from promulgating rules and regulations
that further restrict the use of tobacco products, or tobacco-derived products,
in any form, from any other part or section of any public school building under
its jurisdiction.
§16-9A-7. Enforcement of
youth smoking laws and youth nicotine restrictions; inspection of retail
outlets where tobacco, tobacco products, vapor products, or alternative
nicotine products are sold; 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 tobacco-derived
products, are sold or distributed to ensure compliance with the provisions of §16-9A-2
and three of this article code and in such a
manner as to conform that conforms with applicable federal and
state laws, rules, and regulations. Persons under the age of eighteen 21
years may be enlisted by such the commissioner, superintendent,
sheriffs or chiefs of police or employees or agents thereof to test compliance
with these sections that section: Provided, That the minors
persons under the age of 21 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 that 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 21
years to test compliance in any manner not set forth herein in this
subsection 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 §16-9A-2 of this code.
(b) A person charged with a
violation of §16-9A-2 and three of this article code as
the result of an inspection under subsection (a) of this section has a complete
defense if, at the time the cigarette, other tobacco product, or
tobacco-derived product, or cigarette wrapper was sold, delivered, bartered,
furnished, or given, (1) The the buyer or recipient falsely
evidenced that he or she was eighteen 21 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 guilty of a misdemeanor and, upon conviction
thereof, shall be fined the same amounts as set forth in section two of this
article.
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 §16-9A-2 of this code
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 §16-9A-3
of this code 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 submits
to the applicable state and federal programs.
§16-9A-8. Selling of tobacco products, tobacco-derived products, alternative nicotine products, or vapor products in vending machines prohibited except in certain places.
No A person or business entity may not offer
for sale any cigarette, tobacco product, or tobacco-derived 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 $1,000: Provided, That an establishment is
exempt from this prohibition if individuals persons under the age
of eighteen 21 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 propose rules for promulgation pursuant to §29A-3-1 et seq.
of this code to establish standards for the location and control of the vending
machines in Class A licensed establishments for the purpose of restricting
access by minors persons under the age of 21.
The provisions of this article do not apply to the sale, giving, or furnishing of any tobacco product or tobacco-derived product as defined in §16-9A-2 of this code, to any active duty military personnel who are 18 years of age or older. 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 shall accept an identification card issued by any branch of the armed forces of the United States as proof of age for this purpose.
§16-9A-12. Secondary offense of smoking in a car with a passenger under the age of 17.
A person may not smoke any tobacco product or any tobacco-derived product while operating a passenger vehicle on a public street or highway of this state, if any of the passengers in the vehicle are under 17 years of age. Any person who violates the provisions of this section shall be fined $25. Court costs or other fees may not be assessed for a violation of this section. Enforcement of this section shall be accomplished only as a secondary action when a driver of a passenger vehicle has been detained for probable cause for violating another section of this code.