Senate Bill No. 448
(By Senators Chafin, Bowman, Dittmar, Love,
Miller, Bailey, Schoonover, Wagner, Wiedebusch, Deem and
Kimble)
____________
[Introduced February 19,1996; referred to the Committee
on Health and Human Resources; and then to the Committee on the
Judiciary.]
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A BILL to amend chapter sixteen of the code of West Virginia,one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article nine-b, relating
to prevention of youth access to tobacco act; purpose;
definitions; retail sale licenses; vending machine sales;
distribution of samples; out-of-package sales; display
restrictions; minors; signs; employees; suspension,
revocation, denial and nonrenewal of licenses; unannounced
inspections; reporting and compliance; statewide uniformity;
severability; and effective date.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article nine-b, to read
as follows:
ARTICLE 9B. PREVENTION OF YOUTH ACCESS TO TOBACCO ACT.
§16-9B-1. Title.
This article shall be known and may be cited as the
"Prevention of Youth Access to Tobacco Act of 1996."
§16-9B-2. Legislative intent.
The purpose of this article is to reduce the access of
persons under the age of eighteen years to tobacco products by
establishing a system for the licensing of persons who sell
tobacco products at retail (either over-the-counter or by vending
machines), strengthening existing prohibitions against the sale
and distribution of tobacco products to persons under the age of
eighteen years, prohibiting the purchase or receipt of tobacco
products by such persons, limiting the sale of tobacco products
through vending machines and prohibiting the distribution of
tobacco product samples in or on any public street, sidewalk or
park that is within five hundred feet of any playground, school
or other facility when the facility is being used primarily by
persons under the age of eighteen years, prohibiting the sale of
cigarettes and smokeless tobacco products other than in unopened packages, requiring that tobacco products sold over the counter
be maintained within the sight or under the direct control of a
sales clerk, providing for training of retail sales clerks and
random, unannounced inspections of locations where tobacco
products are sold or distributed, providing for the report
required to be submitted to the United States department of
health and human services pursuant to Section 1926 of the Public
Health Service Act (42 U.S.C. 300x-26), and ensuring uniform
regulations for the sale, distribution, display, use, advertising
and promotion of tobacco products within this state.
§16-9B-3. Definitions.
(a) "Agency" means the alcohol beverage control commission
(the agency vested with licensing authority under this article).
(b) "Distribute" means to sell, furnish, give or provide
tobacco products,including tobacco product samples, to the
ultimate consumer.
(c) "Person" means an individual, partnership,
copartnership, firm, company, public or private corporation,
association, joint stock company, trust, estate, political
subdivision or any agency, board, department or bureau of the
state or federal government, or any other legal entity which is recognized by law as the subject of rights and duties.
(d) "Proof of age" means a driver's license or other
documentary or written evidence that purports to establish that
the person is eighteen years of age or older.
(e) "Public place" means any public street, sidewalk or park
or any area open to the general public in any publicly owned and
operated building.
(f) "Sample" means a tobacco product distributed to members
of the general public at no cost for the purpose of promoting the
product.
(g) "Sampling" means the distribution of samples to members
of the general public in a public place.
(h) "Tobacco product" means any product that contains
tobacco and is intended for human consumption.
(i) "Vending machine" means any mechanical, electric or
electronic self-service device which, upon insertion of money,
tokens or any other form of payment, automatically dispenses
tobacco products.
§16-9B-4. Retail sale licenses.
(a) No person shall engage in the retail sale of tobacco
products over the counter or through any vending machine on or after the first day of October, one thousand nine hundred ninety-
six, unless the person is authorized to do so by a license issued
pursuant to this section, or is an employee or agent of a person
who has been issued a license pursuant to this section. For
purposes of this section, the person deemed to be engaged in the
retail sale of tobacco products through a vending machine shall
be the owner of the business establishment in which the vending
machine is located.
(b) The annual license fee for the retail sale of tobacco
products is as follows:
(1) Twenty dollars for each place of business where tobacco
products are sold over the counter at retail. A separate license
shall be required for each place of business where tobacco
products are sold over the counter at retail.
(2) Twenty dollars for each vending machine. A separate
license shall be required for each vending machine through which
tobacco products are sold.
(c) Every application for a license under this section shall
be made upon a form provided by the agency and shall set forth
the name under which the applicant transacts or intends to
transact business, the location of the place of business or vending machine for which the license is to be issued, and any
other identifying information that the agency may require.
(d) Every license issued by the agency pursuant to this
section shall be valid for one year from the date of issuance
and shall be renewed upon application except as otherwise
provided in this article. Upon notification of a change of
address if required by the agency, a license shall be reissued
for the new address without the filing of a new application.
(e) On or before the first day of July, one thousand nine
hundred ninety-six, the agency shall notify every person in this
state who engages in the retail sale of tobacco products,
including retail sale through vending machines, of the license
requirements imposed by this section.
(f) The agency shall issue a license or renewal of a license
within thirty days of receiving a properly completed application
and the applicable license fee. A license or renewal thereof
shall not be withheld or denied except pursuant to section
twelve: Provided, That: (1) No license shall be issued for the
sale of tobacco products through a vending machine that dispenses
any product in addition to tobacco products; and (2) no license
shall be issued for the sale of tobacco products through a vending machine unless the applicant certifies compliance with
the restrictions set forth in subsection (a), section five of
this article, with respect to the machine for which the license
is issued. No terms or conditions shall be imposed for the
issuance, maintenance or renewal of a license except as specified
in this article.
(g) A person who engages in the retail sale of tobacco
products without a license as required by this section, or after
a license issued pursuant to this section has been suspended or
revoked, is subject to an action brought by the agency in the
municipality in which the sale occurs. The violation shall be
punishable by a civil penalty of one hundred dollars for a first
violation within a two-year period and two hundred dollars for a
second or subsequent violation within a two-year period. No
person shall be liable for more than one violation per day.
(h) A license issued under this section is not assignable
and is valid only for the person in whose name it is issued and
for the place of business or vending machine designated therein.
No license shall be required, and no fee shall be specified, for
the retail sale of tobacco products, other than the license
required and the fee specified, under this section. (License fees shall not be raised except by act of the Legislature).
§16-9B-5. Vending machine sales.
(a) It shall be unlawful for any person to sell tobacco
products through a vending machine unless the vending machine is
located:
(1) In areas of factories, business, offices or other places
that are not open to the public;
(2) In places that are open to the public but to which
persons under the age of eighteen years are denied access:
(3) In places where alcoholic beverages are sold for
consumption on the premises, but only if the vending machine:
(A) Is under the continuous supervision of the owner or lessee of
the premises or an employee thereof; and (B) is inaccessible to
the public when the establishment is closed; and
(4) In other places, but only if the machine: (A) Is under
the continuous supervision of the owner or lessee of the premises
or an employee thereof; and (B) can be operated only by the
activation of an electronic switch by the owner or lessee of the
premises or an employee thereof prior to each purchase or by the
use of tokens provided by the owner or lessee of the premises or
an employee thereof prior to each purchase; and (C) is inaccessible to the public when the establishment is closed.
(b) In any place where supervision of a vending machine,
or activation of an electronic switch or sale of a token, is
required by subsection (a) of this section, the person
responsible for that supervision or the activation of the switch
or the sale of a token, shall demand proof of age from a
prospective purchaser if such person has reason to believe that
the prospective purchaser is under eighteen years of age.
(c) A person who maintains a tobacco product vending machine
in violation of subsection (a) of this section, or fails to
demand proof of age as required by subsection (b) of this
section, is subject to an action brought by the attorney for the
municipality in which the vending machine is maintained. Such
violation shall be punishable by a civil penalty of one hundred
dollars.
§16-9B-6. Distribution of samples.
(a) It shall be unlawful for any person to distribute
tobacco product samples in or on any public street sidewalk or
park that is within five hundred feet of any playground, school
or other facility when the facility is being used primarily by
persons under the age of eighteen years.
(b) A person engaged in sampling shall demand proof of age
from a prospective recipient if such person has reason to believe
that the prospective recipient is under eighteen years of age.
(c) A person who distributes tobacco product samples in
violation of subsection (a) of this section, or fails to demand
proof of age as required by subsection (b) of this section, is
subject to an action brought by the attorney for the municipality
in which the distribution occurs. The violation shall be
punishable by a civil penalty of one hundred dollars. Proof that
the defendant demanded, was shown, and reasonably relied upon
proof of age shall be a defense to any action brought pursuant to
this section.
§16-9B-7. Out-of-package sales.
(a) It shall be unlawful for any person to sell cigarettes
or smokeless tobacco products other than in an unopened package
originating with the manufacturer that bears the health warning
required by federal law.
(b) A person who sells a cigarette or smokeless tobacco
product in violation of this section is subject to an action
brought by the attorney for the municipality in which the sale
occurs. The violation shall be punishable by a civil penalty of one hundred dollars.
§16-9B-8. Display restrictions.
(a) It is unlawful for a retailed to maintain tobacco
products in a retail establishment in any place that is not
within the line of sight, or under the direct control, of a
cashier or other employee of such retailer during regular
business hours. For purposes of this subsection, a location
monitored by electronic means in a manner that enables the
cashier or other employee to view the location shall be deemed
to be within the line of sight of the cashier or other employee.
(b) Subsection (a) of this section does not apply to tobacco
products offered for sale in: (1) Any place of business to which
persons under the age of eighteen years are not admitted or to
which such persons are not admitted unless accompanied by a
parent or other adult; and (2) vending machines.
(c) A person who violates subsection (a) of this section is
subject to an action brought by the attorney for the municipality
in which the violation occurs. Such violation shall be
punishable by a civil penalty of one hundred dollars for the
first offense within a two-year period, two hundred fifty dollars
for a second offense within a two-year period, and five hundred dollars for a third or subsequent offense within a two-year
period.
§16-9B-9. Minors.
(a) Sale or distribution to minors.
(1) Prohibition. -- It shall be unlawful for any person to
sell or distribute any tobacco product to another person who has
not attained the age of eighteen years or to purchase a tobacco
product on behalf of any person: Provided, That it shall not be
unlawful to distribute a tobacco product to a family member or a
personal acquaintance for noncommercial purposes, or to an
employee when required in the performance of the employee's
duties.
(2) Proof of age. -- A person engaged in the sale or
distribution of tobacco products shall demand proof of age from
a prospective purchaser or recipient if such person has reason to
believe that the prospective purchaser or recipient is under
eighteen years of age.
(3) Penalties. -- (A) A person who violates subdivision (1)
or (2) of this subsection shall be charged with a misdemeanor,
and, upon conviction thereof, shall be punishable by a fine of
one hundred dollars for the first offense within a two-year period, two hundred fifty dollars for a second offense within
a two-year period, and five hundred dollars for a third or
subsequent offense within a two-year period. Proof that the
defendant demanded, was shown, and reasonably relied upon proof
of age shall be a defense to any action brought pursuant to this
section.
(B) If the sale is made by an employee of the owner of a
store at which tobacco products are sold at retail, the employee
shall be guilty of the violation and be subject to the penalty.
If the sale is made through a vending machine, the proprietor of
the establishment where the machine is located shall be guilty of
the violation and be subject to the penalty: Provided, That if
the proprietor has made an employee responsible for supervising
the machine, the employee shall be guilty of the violation and be
subject to the penalty. If the tobacco product is distributed by
an employee engaged in the business of sampling, the employee
shall be guilty of the violation and be subject to the penalty.
(C) For purposes of determining the liability of a person
controlling franchises or business operations in multiple
locations for a second or subsequent violation of this
subsection, each individual franchise or business location shall be deemed a separate entity.
(b) Purchase of receipt by minors. --
(1) Prohibition. -- It shall be unlawful for a person who
has not attained eighteen years of age to purchase or accept
receipt of a tobacco product, or to present or offer to any
person any purported proof of age which is false, fraudulent or
not actually his or her own, for the purpose of purchasing or
receiving any tobacco product: Provided, That it shall not be
unlawful for such a person to accept receipt of a tobacco product
from a family member, from a personal acquaintance or from an
employer when required in the performance of such person's
duties.
(2) Penalties. -- A person who violates subsection (a) of
this section shall be charged with a misdemeanor, and, upon
conviction thereof, shall be punishable by a fine of fifty
dollars or twenty-five hours of community service work for a
first offense within a one-year period, and a civil penalty of
fifty dollars and fifty hours of community service work for a
second or subsequent offense within a one-year period.
§16-9B-10. Signs.
(a) On or after the first day of October, one thousand nine hundred ninety-six, every person who sells tobacco products at
retail over the counter shall post conspicuously and keep so
posted at the place of business a sign, no smaller than ninety-
three and one-half square inches, so as to ensure that it is
likely to be read at each point of sale, stating the following:
STATE LAW STRICTLY PROHIBITS
THE SALE OF TOBACCO PRODUCTS TO
PERSONS UNDER THE AGE OF 18 YEARS
PROOF OF AGE MAY BE REQUIRED
(b) Failure to post the sign as required by subsection (a)
of this section shall be punishable by a civil penalty of
twenty-five dollars for the first offense within a two-year
period and seventy-five dollars for each succeeding offense
within a two-year period. No notice regarding tobacco products,
other than the notice required by this subsection, shall be
required to be posted or maintained in any store that sells
tobacco products at retail.
§16-9B-11. Employees.
(a) Every person engaged in the business of selling tobacco
products at retail shall notify each individual employed by that
person as a retail sales clerk that state law: (1) Prohibits the
sale or distribution of tobacco products to any person under
eighteen years of age and the purchase or receipt of tobacco products by any person under eighteen years of age and out-of-
package sales of cigarettes and smokeless tobacco products; and
(2) requires that proof of age be demanded from a prospective
purchaser or recipient if the person engaged in sale or
distribution of tobacco products has reason to believe that the
prospective purchaser or recipient is under eighteen years of
age. This notice shall be provided before the individual
commences work as a retail sales clerk, or, in the case of an
individual employed as a retail sales clerk on the date when
this section becomes effective, within thirty days of that date.
The individual shall signify that he or she has received the
notice required by this section by signing a form stating as
follows:
"I understand that state law prohibits the sale or
distribution of tobacco products to persons under
eighteen years of age and out-of-package sales of
cigarettes and smokeless tobacco products, and
requires that proof of age be demanded from a
prospective purchaser or recipient if I have reason
to believe that the prospective purchaser or recipient
is under eighteen years of age. I promise, as a
condition of amy employment, to observe this law."
Each form signed by such individual shall indicate the date
of signature. The employer shall retain the form signed by each
individual employed as retail sales clerk until one hundred twenty days after the individual has left the employer's employ.
(b) Any employer failing to comply with the requirements of
this section with respect to any employee shall be guilty of a
misdemeanor, and, upon conviction thereof, be punished by a fine
of one hundred dollars for the first offense within a two-year
period and two hundred dollars for each succeeding violation of
this provision within a two-year period, or by imprisonment for
not more than thirty days.
§16-9B-12. Suspension, revocation, denial, and nonrenewal of
licenses.
(a) Upon finding that a licensee, or an employee or agent of
the licensee, has been determined by courts of competent
jurisdiction to have committed during the license term three or
more violations of this article involving the same place of
business or vending machine for which the license was issued, the
agency shall notify the licensee in writing, served personally or
by mail, that any subsequent violation thereof during the license
term may result in an administrative action to suspend the
license for a period not to exceed thirty days.
(b) Upon finding that a further violation has occurred
during the license term notwithstanding the notice provided under subsection (a) of this section, involving the same place of
business or vending machine for which the license was issued, the
agency may initiate an administrative action to suspend the
license. If an administrative action is initiated, the agency
shall immediately notify the licensee in writing of the
initiation of the action and the reasons therefor, and permit the
licensee an opportunity, at least fourteen days after written
notice is served personally or by mail upon the licensee, to show
why suspension of the license would be unwarranted or unjust.
(c) The agency may initiate an administrative action to
revoke a license that previously has been suspended under
subsection (b) of this section if during the license term a
further violation of this article is committed involving the same
place of business or vending machine for which the license was
issued. If an administrative action is initiated, the agency
shall immediately notify the licensee in writing of the
initiation of the action and the reasons therefor, and permit the
licensee an opportunity, at least fourteen days after written
notice is served personally or by mail upon the licensee, to show
why revocation of the license would be unwarranted or unjust.
(d) The agency may refuse or grant or renew a license under this article to any person determined by courts of competent
jurisdiction to have committed more than three violations of this
article during the year preceding the date on which the license
or renewal application is filed with the agency. Before refusing
to grant or renew a license under this article, the agency shall
give the applicant an opportunity, at least fourteen days after
written notice is served personally or by mail upon the
applicant, to show why the denial or nonrenewal would be
unwarranted or unjust.
(e) A person whose license has been suspended or revoked
pursuant to this article shall pay the agency a fee of fifty
dollars for the renewal or reissuance of the license. For
purposes of determining the liability of a person controlling
franchises or business operations in multiple locations for a
second or subsequent violations of this article each individual
franchise or business location shall be deemed a separate entity.
(f) A licensee shall not be subject to suspension,
revocation, denial or nonrenewal of a license by reason of
violations of this article that are committed by employees or
agents of the licensee if the licensee affirmatively demonstrates
that the licensee had taken reasonable steps prior to the time of those violations to prevent those violations by employees or
agents. This subsection shall not apply if the licensee has
received more than three violations during the license term
involving the same place of business or vending machines for
which the license was issued.
(g) A licensee may seek judicial review of an action of the
agency suspending, revoking, denying or refusing to renew a
license under this article by filing a complaint in the superior
court. A complaint shall be filed within thirty days after the
date on which notice of the action is received by the licensee.
The right to seek judicial relief shall not be affected by the
failure to seek reconsideration by the agency. The substantial
evidence standard of review shall apply.
(h) The agency shall report any action suspending, revoking,
denying or refusing to renew a license under this article to the
attorney general:
Provided, That such action shall be reported
only after judicial review, if any, of the action has been
completed.
§16-9B-13. Unannounced inspections; reporting and compliance.
(a)
Unannounced inspections. --
(1) The alcohol beverage control commission, acting through the West Virginia state police, the sheriffs of the several
counties and the chiefs of police of several cities, shall
enforce this article in a manner that can reasonably be expected
to reduce the extent to which tobacco products are sold or
distributed to persons under eighteen years of age, and shall
conduct random, unannounced inspections at locations where
tobacco products are sold or distributed to ensure compliance
with this article. The alcohol beverage control commission shall
rely, to the fullest extent possible, on such state police,
sheriffs or chiefs of police, or employees thereof, to enforce
this article. Licensee fees and penalties collected pursuant to
this article shall be used to offset the costs of its
enforcement.
(2) Persons under eighteen years of age may be enlisted by
such sheriffs or chiefs of police, or employees thereof, to test
compliance with this article:
Provided, That such persons may be
used to test compliance with this article only if the testing is
conducted under the following conditions:
(A) Prior to the use of any person under the age of eighteen
years in a random, unannounced inspection, written consent shall
be obtained from said person's parents or legal guardians;
(B) A person under eighteen years of age shall act solely
under the supervision and direction of the sheriff or chief of
police, or an employee thereof, during a random, unannounced
inspection;
(C) A person under eighteen years of age used in random,
unannounced inspections may not be used in any inspection at a
store in which that person is a regular customer;
(D) A person under eighteen years of age participating in
random, unannounced inspections, if questioned about his or her
age, shall state his or her actual age and shall present a true
and correct proof of age if requested at any time during the
inspection to present it;
(E) A person used in random, annual inspections may not
appear to be over eighteen years of age;
(F) A photograph or video recording of any person under
eighteen years of age assisting in an inspection shall be taken
prior to and after each inspection, or shift of inspections, and
retained by the sheriff or chief of police for the purpose of
certifying such underage person's appearance; and
(G) Any use of persons under eighteen years of age other
than that permitted by this subsection to test compliance with this article or any other prohibitions of like or similar import
shall be unlawful and the person or persons responsible for such
use shall be subject to the penalties prescribed in subsection
(a) of section nine of this article.
(b)
Reporting and compliance. --
(1) On a form to be provided by the alcohol beverage control
commission, the superintendent of the state police, each sheriff
and each chief of police shall report quarterly to the alcohol
beverage control commission on all enforcement activities
undertaken by such superintendent, sheriff or chief of police, or
employees thereof, pursuant to this article. On a form to be
provided by the alcohol beverage control commission, the
magistrate court of each county and the municipal court of each
municipality shall report quarterly to the alcohol beverage
control commission on any action brought under this article and
shall indicate the result of such action. The alcohol beverage
control commission shall not require the superintendent,
sheriffs, chiefs of police and municipal attorneys to report any
information pursuant to this section that is not required to
prepare the report required by Section 1926 of the federal Public
Health Service Act (42 U.S.C. 300x-26).
(2) The alcohol beverage control commission shall prepare
for submission annually to the secretary of the United States
department of health and human services the report required by
Section 19216 of the federal Public Health Service Act (42 U.S.C.
300x-26), and otherwise shall be responsible for ensuring the
state's compliance with that provision of federal law and any
implementing regulations promulgated by the United States
department of health and human services.
§16-9B-14. Statewide uniformity.
It is the intent of the Legislature that this article shall
be implemented in an equitable and uniform manner throughout this
state and shall be enforced to ensure the eligibility for and
receipt of any federal funds or grants that this state now
receives or may receive relating to the provisions of this
article. In order to ensure that this article is equitably and
uniformly enforced, no county, city or town, or department, board
or agency thereof, and no other political subdivision or agency
of this state may enact or enforce any laws, ordinances, rules
concerning the sale, distribution, display, use, advertising or
promotion of tobacco products. Any such law, ordinance, rule or
regulation concerning the sale, distribution, display, use, advertising or promotion of tobacco products that is in effect on
the effective date of this statute is hereby declared null and
void. This article and its provisions occupy the whole field of
regulation regarding the sale, distribution, promotion,
advertising and display of tobacco products.
§16-9B-15. Severability.
If any provision of this article or its application to any
person or circumstance is held invalid, this shall not affect
other provisions or applications of this article that can be
given effect without the invalid application and to this end the
provisions of the article are severable.
§16-9B-16. Effective date.
This article shall become effective on the first day of
July, one thousand nine hundred ninety-six.
NOTE: The purpose of this bill is to create the "Prevention
of Youth Access to Tobacco Act of 1996."
This article is new; therefore, strike-throughs and
underscoring have been omitted.