ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 408
(Senators Burdette, Mr. President, Wooton, Sharpe,
Chafin, Minard and Whitlow, original sponsors)
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[Passed March 11, 1994; in effect ninety days from passage.]
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AN ACT to amend article nine-a, chapter sixteen of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
seven, relating to enforcement of statutes preventing the
possession or use of tobacco products by minors; duties of
division of public safety; use of minors by law-enforcement
authorities with parental consent; defenses; duties of court
clerks upon convictions; providing annual reports on
enforcement and compliance activities; providing that form
of reports conform with federal law; and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That article nine-a, chapter sixteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
seven, to read as follows:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-7. Enforcement of youth smoking laws; random inspections;
use of minors in inspections; annual reports; penalties;
defenses.
(a) The division of public safety, acting with and through
the sheriffs of the counties of this state and the chiefs of
police of municipalities of this state, shall annually 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 rules. Persons under the age of
eighteen years may be enlisted by such superintendent, sheriffs
or chiefs of police or employees 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 superintendent, sheriffs or chiefs of police
or employees thereof and written consent of the parent or
guardian of such person is first obtained. 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 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. The
clerk of the court upon receiving the fine shall promptly notify
the superintendent of the division of public safety of the
conviction and the collection of the fine.
(d) The superintendent of the division of public safety
shall prepare and submit to the governor on the first day of May
of each year a report of the enforcement and compliance
activities undertaken pursuant to this section and the results of
the same. 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).
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