Introduced Version
House Bill 2778 History
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Committee Substitute
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2778
(By Delegates Perry, Eldridge, Williams, Moye, Staggers,
Pino, Marshall, Perdue, Poore, Pasdon and Cowles)
[Introduced
March 1, 2013
; referred to the
Committee on Health and Human Resources then the
Judiciary.]
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 products and
electronic cigarettes; 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).
__(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.