ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2395
(By Delegates Manuel, Doyle, Douglas,
Amores and C. White)
(Originating in the Committee on the Judiciary)
[March 2, 1998]
A BILL to amend article ten, chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto a new section, designated section five-t; to
amend article twelve of said chapter by adding thereto a new
section, designated section four-a; and to amend and reenact
sections two, three and seven, article nine-a, chapter sixteen
of said code, all relating to disclosures of persons making
retail sales of tobacco products; requiring certain agencies
to compile, distribute, report and make available lists of
those who intend to sell tobacco products; requiring retailers
of tobacco products to provide additional information upon
business registration and annual renewals; modifying the
penalty for minors found to possess or use tobacco products;
modifying the penalty for business entities; providing legal
protection for minors who participate in inspection;
authorizing the commissioner of the alcohol beverage control commission, the state police, sheriffs and local police to
assist in the enforcement of youth smoking laws and to use
minors in the inspection of retailers who sell tobacco
products; requiring clerks of courts to record certain
convictions and to notify the commissioner of the alcohol
beverage control administration of payment of fines and
satisfaction of community service penalties.
Be it enacted by the Legislature of West Virginia:
That article ten, chapter eleven of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new section, designated section five-t; that
article twelve of said chapter be amended by adding thereto a new
section, designated section four-a; and that sections two, three
and seven, article nine-a, chapter sixteen of said code, be amended
and reenacted, all to read as follows:
CHAPTER 11. TAXATION
ARTICLE 10.PROCEDURE AND ADMINISTRATION.
§11-10-5t.
Disclosure of persons making retail sales of tobacco
products.
Notwithstanding any provision of this article to the contrary,
the tax commissioner shall, at least semi-annually, provide to the
commissioner of the West Virginia alcohol beverage control
administration, the superintendent of the West Virginia state
police and the secretary of the West Virginia department of health and human resources by the first day of April and October of each
year, a list of the names and business locations of each person who
indicates on a new application for a business registration
certificate or on a current application for renewal of a business
registration certificate that the person sells or intends to sell
cigarettes or other tobacco products to consumers:
Provided, That
when available, the tax commissioner will provide the name of the
business owner, county of location, and the business description
code:
Provided, however, That the
tax commissioner may also file a
copy of the list provided to the commissioner of the West Virginia
alcohol beverage control administration, the superintendent of the
West Virginia state police, and the secretary of the West Virginia
department of health and human resources in the state register
maintained by the secretary of state, who shall make the list
available for inspection and copying:
Provided further, That the
results of the inspections of retail establishments which sell
tobacco products may be reported to the federal government by the
commissioner of the West Virginia alcohol beverage control
administration.
ARTICLE 12.BUSINESS REGISTRATION TAX.
§11-12-4a.Retailers of tobacco products to provide additional
information.
For registration years beginning on or after the first day of
July, one thousand nine hundred ninety-eight, each person applying for a business registration certificate and each person applying
for renewal of a business registration certificate shall indicate
in the application for a business registration certificate or for
the renewal of a business registration certificate whether the
person is selling or intends to sell cigarettes or other tobacco
products to consumers during the registration period.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-2. Sale or gift of cigarette, cigarette paper, pipe, cigar,
snuff, or chewing tobacco to persons under eighteen;
penalty.
No person firm or 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:
(a) Any cigarette, cigarette paper or any other paper
prepared, manufactured or made for the purpose of smoking any
tobacco or tobacco product; or,
(b) Any cigar, pipe, snuff, chewing tobacco or tobacco
product, in any form.
Any person, firm or corporation business entity violating any
of the provisions of subdivisions (a) or (b) of this section is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined
twenty-five dollars for the first offense. Any subsequent
violations at the same location or operating unit shall be subject to the following fines: one hundred dollars for the second offense
if the offense occurs within two years of the first conviction, two
hundred dollars for the third offense if the offense occurs within
two years of the first conviction, three hundred dollars for the
fourth offense if the fourth offense occurs within five years of
the first conviction and five hundred dollars for the fifth and
subsequent offenses if the offenses occur within five years of the
first conviction. Any employee of any business entity violating
any of the provisions of subdivisions (a) or (b) of this section is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined
not less than ten nor more than twenty-five dollars for the
first offense, and for each subsequent offense, not less than
twenty-five nor more than three hundred dollars.
§16-9A-3. 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 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: Provided, That
minors participating in the inspection of locations where tobacco
products are sold or distributed pursuant to section seven of this
article and chapter shall not be deemed to violate the provisions
of this section: Provided, however, That Aany person violating the provisions of this section is punishable by a fine of five dollars
eight hours of community service: Provided further, That and
notwithstanding the provisions of section one, two, article five,
chapter forty-nine, the magistrate court shall have 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 division of public safety, acting with and through
the 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 annually may
periodically conduct random, unannounced inspections at locations
where tobacco 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 Section 1926 of the Public Health
Services Act and 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 a random 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
was sold, delivered, bartered, furnished or given:
(1) The buyer or recipient falsely evidenced that he 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 either
section two or three of this article shall be paid to the clerk of
the court in which the conviction was obtained: Provided, That
Tthe clerk of the court upon receiving the fine shall promptly
notify the commissioner of the West Virginia alcohol beverage
control administration superintendent of the division of public
safety 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 superintendent of the division of public safety
commissioner of the West Virginia alcohol beverage control
administration or his or her designee shall prepare and submit to
the governor on the first day of May 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 secretary of the
United States department of health and human services, in
compliance with Section 1926, Subpart I, Part B, Title XIX of the
federal Public Health Service Act (42 U.S.C. 300x-26) applicable
state and federal programs.
Email
Webmaster | © 2024 West Virginia Legislature **
