Senate Bill No. 475
(By Senators Macnaughtan and Blatnik)
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[Introduced February 19, 1996; referred to the Committee
on Health and Human Resources; and then to the Committee on
Finance.]
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A BILL to amend and reenact sections one, two, three and seven,
article nine-a, chapter sixteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to further amend said article by adding thereto five new
sections, designated sections six, eight, nine, ten and
eleven, all relating to discouraging the use and
distribution of tobacco products; declaring legislative
intent; continuing prohibition on sales or gifts of tobacco,
tobacco products, pipes and cigarette papers to persons
under the age of eighteen years and providing penalties for
violations; requiring posting of signs by businesses selling
tobacco products, pipes and cigarette papers; continuing prohibition on purchase, use or possession of tobacco or
tobacco products by persons under the age of eighteen years
and providing penalties for those violations; prohibiting
the sale or gift of tobacco products through the use of
placement of vending machines; prohibiting tobacco
businesses from distributing free samples of tobacco
products; prohibiting the sale, or offer of sale, of single
cigarettes or packs of fewer than twenty cigarettes;
prohibiting the offering of tobacco products through self-
service displays; prohibiting the distribution of tobacco
products and tobacco coupons through the mail to recipients
in West Virginia; requiring certain tobacco-related
businesses to apply for and obtain tobacco products control
certificates; establishing application procedures, duration
of certificates and fees to assist enforcement of said
article; issuance, suspension, revocation and amendment of
such certificates; prohibitions; violations; establishing
and modifying criminal penalties; establishing defenses and
exceptions; establishing administrative and civil penalties;
establishing compliance checks; modifying provisions
relating to submission of annual report to the governor; authorizing promulgation of legislative rules by the
alcoholic beverage control commissioner; establishing
responsible retail dealer training; and authorizing local
authorities to adopt more stringent ordinances or rules.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three and seven, article nine-a,
chapter sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and
that said article be further amended by adding thereto five new
sections, designated sections six, eight, nine, ten and eleven,
all to read as follows:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1. Legislative intent.
The Legislature hereby declares it to be the policy and
intent of this state to discourage
the use of tobacco products
generally and
ban to eliminate the use of tobacco products by
minors. As basis for this policy, the Legislature hereby finds
and accepts the medical evidence that
smoking the use of tobacco
products and exposure to tobacco smoke may cause causes lung
cancer, heart disease, emphysema,
and other serious health
problems while the use of smokeless tobacco may cause gum disease,
and oral cancer
and other serious health problems. It
is the further intent of the Legislature in
banning eliminating
the use of tobacco products by minors to:
ease (a) prevent the
exposure of young people to the addictive effects of nicotine;
(b) prevent the personal tragedy
of terminal illnesses caused by
the use of tobacco products and (c)eradicate the severe economic
loss associated with the use of tobacco and
(d) to provide the
state with a citizenry free from the use of tobacco.
§16-9A-2. Sale or gift of cigarette, cigarette paper, pipe,
cigar, snuff, or chewing tobacco to persons under
eighteen; penalty.
(a) No person, firm or corporation may sell, give or
furnish, or cause to be sold, given or furnished, to any person
under the age of eighteen years:
(a) (1) Any cigarette, cigarette paper or any other paper
prepared, manufactured or made for the purpose of smoking any
tobacco or tobacco product; or,
(b) (2) Any cigar, pipe, snuff, chewing tobacco or tobacco
product, in any form.
(b) Any person may not engage in or execute any business
activity, as that term is defined in section two, article twelve, chapter eleven of this code, involving the sale, transfer or
distribution of any cigarette, cigar, pipe, snuff, chewing
tobacco, other tobacco product in any form, cigarette paper or
any other paper prepared, manufactured or made for the purpose of
smoking tobacco or of smoking any other substance without first
conspicuously posting and maintaining a sign near or at the point
of sale, and near each display of the item. The posted sign
shall include only the following message:
THE SALE OR GIFT OF TOBACCO PRODUCTS TO PERSONS UNDER 18
YEARS OF AGE IS PROHIBITED BY WEST VIRGINIA LAW.
(WEST VIRGINIA CODE 16-9A-2)
(c) Any person, firm or corporation 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 twenty nor more than
twenty-five one hundred
dollars for the first offense, and for each subsequent offense,
not less than
twenty-five one hundred nor more than three hundred
dollars.
(d) A person charged with a violation of this section has a
complete defense if, at the time the cigarette or other tobacco
products or cigarette wrapper was sold, delivered, bartered, furnished or given:
(i) The buyer or recipient provided false evidence the he or
she is eighteen years of age or older.
(ii) The person charged with the violation carefully checked
a driver's license or an identification card issued by this state
or another state of the United States, a passport, or 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.
The appearance of the buyer who does not present an
identification card shall not constitute a defense in any
proceeding alleging sale of a tobacco product to an individual
under age 18.
§16-9A-3. Use or possession of tobacco or tobacco products by
persons under the age of eighteen years; penalty.
(a) On or after the first day of July, one thousand nine
hundred ninety-six, no person under the age of eighteen years
shall have on or about his or her person or premises
for or use
any cigarette, 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 products; unless the purchase of tobacco products
is made for the purpose of law enforcement or government research
involving monitoring compliance: Provided, That the underage
individual is supervised by an adult alcohol beverage control
official or someone authorized by the enforcement program. Any
person violating the provisions of this section is punishable by
a fine of
five twenty-five dollars.
and Notwithstanding the
provisions of section one, article five, chapter forty-nine, the
magistrate court shall have concurrent jurisdiction
over
violations of the provisions of this section.
(b) Nothing in this article, nor any rule of the alcohol
beverage control commissioner, shall prevent or prohibit any
person who is at least sixteen years of age from being employed
by the holder of a tobacco products control certificate issued
pursuant to the provisions of section eight of this article if
that certificate holder is primarily engaged in one of the
following activities: The sale of food, the sale of consumer
goods, or the providing or recreational activities, including,
but not limited to, nationally franchised fast food outlets, family-oriented restaurants, bowling alleys, drug stores,
discount stores, grocery stores and convenience stores:
Provided, That such person does not sell or deliver tobacco,
tobacco products or cigarette papers.
(c) Any person under the age of eighteen years who (1)
misrepresents his or her age; (2) presents or offers any written
evidence of age which is false, fraudulent or not actually his or
her own, or (3) otherwise illegally attempts to purchase tobacco,
tobacco products or cigarette papers from a certificate holder,
is guilty of a misdemeanor, and, upon conviction thereof, shall
be fined in an amount not to exceed fifty dollars.
(d) Nothing in this section prohibits the enforcement of
this article by appropriate licensing officials or law-
enforcement officers.
§16-9A-6. Miscellaneous offenses involving the sale, gift, or
offer of tobacco products; penalties.
(a) On and after the first day of January, one thousand nine
hundred ninety-seven, no person shall:
(1) Sell or give, or attempt to sell or give, tobacco
products to any other person through the use or placement of a
vending machine containing tobacco products;
(2) Offer or distribute free samples of tobacco products to
any other person;
(3) Sell, or offer for sale, to any other person single
cigarettes or packs of fewer than twenty cigarettes;
(4) Offer tobacco products for sale, or sell tobacco
products, through the use of self-service displays which
encourages the customer to take possession of the tobacco
products prior to sale; and
(5) Put tobacco products or coupons relating to tobacco
products into circulation through the use the mails, in West
Virginia if those tobacco products or coupons are addressed to
recipients in West Virginia.
(b) Any person violating any provision of this section is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than one thousand dollars per offense.
§16-9A-7. Report to governor.
The alcohol beverage control commissioner shall prepare and
submit to the governor on the first day of April, one thousand
nine hundred ninety-seven, and on the same date of each year
thereafter, a report suitable for submission by the governor to
the secretary of the United States department of health and human services, conforming form and substance to the requirements of
section one thousand nine hundred twenty-six of Subpart I of Part
B of Title XIX of the federal Public Health Service Act (42
U.S.C. 300X-26). The report shall, at a minimum, summarize
actions taken to assure enforcement of the provisions of this
article, and the results of such enforcements.
§16-9A-8. Tobacco products control certificate required;
prohibitions; application procedure, duration of
certificate; fees for certificates to assist
enforcement of article, issuance, suspension,
revocation and amendment; violations; criminal and
administrative penalties.
(a) In addition to complying with the provisions of article
twelve, chapter eleven of this code, no person may engage in or
execute, in the state of West Virginia, any business activity, as
that term is defined in section two, article twelve, chapter
eleven of this code, involving the sale, transfer or distribution
of any cigarette, cigar, pipe, snuff, chewing tobacco, other
tobacco product in any form, cigarette paper or any other paper
prepared, manufactured or made for the purpose of smoking tobacco
or of smoking any other substance, without first having obtained
a tobacco products control certificate from the alcohol beverage control commissioner.
(b) A fee of one thousand dollars is imposed for each
tobacco products control certificate for a wholesale business.
A fee of fifty dollars is imposed for each tobacco products
control certificate for a subjobber business. A fee of fifteen
dollars is imposed for each tobacco products control certificate
for a vending business. All tobacco products control certificate
fees collected shall be deposited in a special account in the
state treasury to be used by the alcohol beverage control
commissioner to administer and enforce the provisions of this
article.
(c) A separate tobacco products control certificate is
required for each fixed business location from which the sale,
transfer or distribution of any item set forth in subsection (a)
of this section is offered to the public as a class, or to a
limited portion thereof, or at which customer accounts may be
opened, closed or serviced. A separate tobacco products control
certificate is not required for each vending machine. However,
a separate certificate is required for each location from which
one or more vending machines available to the public constitutes
a business activity. Every certificate is to clearly indicate the address of the fixed business location for which the
certificate is applicable. Any business that sells, transfers or
distributes any tobacco product from one or more vehicles is
required to obtain a separate tobacco products control
certificate for each fixed location in this state from which the
business is conducted. A copy of the required business
certificate shall be carried in each vehicle and publicly
displayed.
(d) Any person seeking a tobacco products control
certificate may apply to the alcohol beverage control
commissioner for a certificate. Every tobacco products control
certificate shall be issued for a period of not more than one
year and shall terminate on the thirtieth day of June of the
fiscal year in which the period begins.
(e) The commissioner may issue the requested certificate or
may, for good cause shown, refuse to issue it or issue it with
restrictions. The applicant shall be given an opportunity to
request an administrative hearing as set forth in this
subsection. Upon a showing of good cause, the commissioner may
suspend, revoke or reduce the scope of a certificate:
Provided,
That the commissioner gives the holder of the certificate fifteen-days notice an opportunity to request an administrative
hearing before the commissioner or the commissioner's designee.
In any hearing on the suspension, revocation, amendment or
refusal to issue a certificate, the applicant for or holder of a
certificate, the applicant for or holder of a certificate must
demonstrate, by a preponderance of the evidence, that the
commissioner lacked good cause for the actions taken on the
certificate in question. For purposes of this subsection, good
cause includes, but is not limited to: (1) A violation of this
article, or rules promulgated by the commissioner, by the
applicant for or holder of the certificate, or by an officer,
director or major stockholder; (2) fraud by the applicant for or
holder of a certificate; (3) failure by the applicant for or the
holder of a certificate to pay the required fees; or (4) good
cause as defined by rules promulgated by the commissioner.
(f) Any person who violates the provisions of subsection (a)
of this section is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than one hundred nor more than
one thousand dollars for each separate offense. Any person or
entity continuing to sell tobacco or tobacco products after
having their tobacco products control certificate revoked is guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than two hundred nor more than two thousand
dollars for each separate offense. In addition to the criminal
penalty set forth herein, the alcohol beverage control
commissioner, after hearing or the opportunity to be heard, may
also, or in the alternative, imposes an administrative penalty of
not more than one thousand dollars for each separate offense on
any person who violates subsection (a) of this section. Payments
of the administrative penalties shall be deposited in the special
account established in subsection (b) of this section. Each day
of a continuing violation constitutes a separate offense.
Nothing in this paragraph may be construed to limit the
commissioner from invoking other remedies in the enforcement of
this section.
(g) A tobacco products control certificate issued under this
section shall be revoked by the alcohol beverage control
commissioner, or, in the alternative, suspended and not renewed
for a period of at least seven days by said commissioner, for the
third violation of section two of this article.
§16-9A-9. Rules; liberal construction.
The alcohol beverage control commissioner shall, after consulting with the commissioner of the bureau of public health,
promulgate necessary rules to implement the provisions of this
article. The alcohol beverage control commissioner shall use
unannounced compliance checks as part of investigating compliance
and shall check each tobacco products retailer in West Virginia,
including each retailer of tobacco products vending machines, an
average of two times per year. The commissioner may enlist the
assistance of law enforcement or local tobacco prevention groups
to assist in enforcement. The provisions of this article are to
be liberally construed.
§16-9A-10. Local authority.
Nothing contained therein shall be construed to restrict the
power or authority of any West Virginia city, town or other
public entity to adopt and enforce additional local laws,
ordinances, or regulations, which do not conflict with this
article, if the purpose of such law, ordinance, and regulation is
to discourage youths from possessing or using tobacco products.
§16-9A-11. Responsible retail tobacco products dealers;
qualifications; mitigation of disciplinary
penalties.
(a) The Legislature intends to prevent the sale of tobacco
products to underage persons and to encourage retail tobacco products dealers to comply with responsible practices in
accordance with this section.
To qualify as responsible retail tobacco products dealer,
the dealer must establish and implement procedures designed to
ensure that the dealer's employees comply with the provisions of
this article. The dealer must provide a training program for the
dealer's employees which addresses the use and sale of tobacco
products and which includes at least the following topics:
(1) Laws covering the sale of tobacco products;
(2) Methods of recognizing and handling underage customers;
(3) Procedures for proper examination of identification
cards in order to verify that customers are not underage; and
(4) The use of the age audit identification function on
electronic point-of-sale equipment, where available.
(b) In determining penalties under section eight of this
article, the alcohol beverage control commissioner may mitigate
penalties imposed against a dealer because of an employee's
illegal sale of a tobacco product or products to a person under
eighteen years of age if the following conditions are met:
(1) The dealer is qualified as a responsible dealer under
this section;
(2) The dealer provided the training program required under
subsection (b) of this section to that employee before the
illegal sale occurred; and
(3) The dealer had no knowledge of that employee's violation
at the time of the violation and did not direct, approve or
participate in the violation.
(c) The alcohol beverage control commissioner shall develop
and make available a model tobacco products training program
designed to ensure adherence to this article by dealers and their
employees which, if followed, will qualify dealers as responsible
dealer.
NOTE: The purposes of this bill are to: (1) Continue the
prohibition or the sale or gift of tobacco products to persons
under the age of eighteen years; (2) require posting of signs
warning against sales of tobacco products to persons under
eighteen years of age; (3) clarify defenses to prosecutions for
sales of tobacco products to minors; (4) continue the prohibition
on the purchase, use, or possession of tobacco products by
persons the age of eighteen years; (5) clarify the law on
compliance checks involving minors; (6) authorize certain
individuals at least sixteen years of age to work in certain
business establishments at which tobacco products are sold; (7)
prohibit minors from misrepresenting age when attempting to
purchase tobacco products; (8) prohibit the sale or gift of
tobacco products through the use or placement of vending
machines; (9) prohibit tobacco businesses from offering or
distributing free samples of tobacco products to other persons;
(10) prohibit the sale, or offering for sale, of single cigarettes and packs of fewer than twenty cigarettes; (11)
prohibit the sale of tobacco products though self-service
displays; (12) prohibit the mailing of tobacco products or
tobacco coupons to recipients in West Virginia; (13) authorize
the alcohol beverage control commissioner, instead of the
division of public safety, to make annual reports to the governor
on the level of compliance with provisions of the article; (14)
establish a requirement that businesses selling tobacco products
first apply for and obtain a tobacco products control certificate
from the alcohol beverage control commissioner; (15) establish
fees and procedures applicable to the issuance, suspension,
revocation and duration of certificate; (16) establish criminal
and administrative penalties for violation; (17) provide a
funding mechanism for enforcement of this article; (18) authorize
the alcohol beverage control commissioner to promulgate rules;
(19) authorize local authorities to pass more stringent
ordinances and regulation on the subject; and (20) authorize
procedures for retail tobacco products dealers to comply with
provisions of said article.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Sections six, eight, nine, ten, and eleven are new, and
section seven has been rewritten; therefore, strike-throughs and
underscoring have been omitted.
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