COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 408
(By Senators Burdette, Mr. President, Wooton, Sharpe,
Chafin, Minard and Whitlow)
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[Originating in the Committee on the Judiciary;
reported March 1, 1994.]
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A BILL 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 youth smoking laws by the
division of public safety; random inspections to test
compliance; use of persons under eighteen years by law-
enforcement authorities with parental consent; penalties;
defenses; and providing for annual reports on such
enforcement and compliance activities.
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. 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 thata 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 on a form that the governor may
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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(NOTE: The purpose of this bill is to provide for random
inspection of places where tobacco products are sold, by state
and local law-enforcement authorities, to enforce youth smokinglaws, and to test compliance with such laws. With parental
consent, persons under 18 years old may be enlisted by law-
enforcement authorities to test compliance with such laws. The
department of public safety is to report annually to the governor
on such enforcement and compliance testing activities, and the
governor is to report on such efforts to the federal Secretary of
Health and Human Services, in accordance with applicable federal
law.)