ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2395
(By Delegates Manuel, Doyle, Douglas,
Amores and C. White)
[Passed March 14, 1998; in effect ninety days from passage.]
AN ACT 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-u; 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 businesses and individuals who sell
or give tobacco or tobacco products to minors; 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-u; 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.
§11-10-5u.
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 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 firm or corporation which violates any of the provisions
of subdivision (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. Upon any subsequent violation by that firm or corporation at the same location or operating unit,
the firm or corporation shall be fined as follows: At least fifty
dollars but not more than one hundred dollars for the second
offense, if it occurs within two years of the first conviction; at
least fifty dollars but not more than two hundred dollars for the
third offense, if it occurs within two years of the first
conviction; at least one hundred dollars but not more than three
hundred dollars for the fourth offense, if it occurs within five
years of the first conviction; and at least one hundred dollars but
not more than three hundred fifty dollars for the fifth and any
subsequent offenses, if the fifth or subsequent offense occurs
within five years of the first conviction. Any person who violates
any provision of subdivision (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.
§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 any person violating the
provisions of this section is punishable by eight hours of
community service:
Provided further, That notwithstanding the
provisions of section, 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 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 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 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
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.
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