HB5437 HFA Worrell 2-24 #1
CR 3338
Delegate Worrell moved to amend the committee substitute by striking everything after the enacting clause and inserting in lieu thereof the following:
"Abandonment" and "abandoned" mean that the use with respect to a premises, regardless of intent of the user, has ceased or has discontinued for a period of at least 30 days, or an explicit declaration by the user of a premises that it has ceased a use with respect to the premises that is non-conforming to this article.
"Adult " means a person who is the age of 21 years or older.
"Alternative nicotine product" means any non-combustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means.
"Authorized vapor product" means a vapor product is listed in the vapor product directory established in §16-9H-11 of this code.
"Commissioner" means the Alcohol Beverage Control Commissioner or a duly authorized agent thereof.
“Drug paraphernalia” means as that term is defined in §47-19-3 of this code.
"Electronic cigarette" means any product containing or delivering nicotine or any other substance intended for human consumption that can be used by a person to simulate smoking through inhalation of vapor or aerosol from the product. The term "electronic cigarette" includes any such device, whether manufactured, distributed, marketed, or sold as an ecigarette, e-cigar, e-pipe, e-hookah, or vape pen, or under any other product name or descriptor.
"Improvement" means any building or structure, excluding fence, whether existing on the effective date located on a premises or, if there is a vested right to erect such structure or building, to be located within or upon a premises.
"Manager" means the individual person whom an applicant for a license has designated to attest to the information in the license application, who meets all the requirements of this article, and who is responsible for violations of this article.
"Premises" means a tract or tracts of land, whether containing existing or proposed improvements, within the territorial limits that are identified as a parcel or parcels on a tax district map or maps.
"Residence" means a detached or un-detached dwelling for one or more persons and in which there is not a predominating commercial or non-housing use, and shall not mean a motel, hotel, inn, or other lodging facility for transient persons.
"Tobacco-Derived Product" means any product containing, made or derived from tobacco, or containing nicotine derived from tobacco, that is intended for human consumption, whether smoked, breathed, chewed, absorbed, dissolved, inhaled, vaporized, snorted, sniffed, or ingested by any other means, including but not limited to cigarettes, cigars, cigarillos, little cigars, pipe tobacco, snuff, snus, chewing tobacco or other common tobacco containing products. A "tobacco-derived product" includes electronic cigarettes or similar devices, alternative nicotine products and vapor products.
"Vape or smoke retailer" means a retail establishment that sells tobacco products, tobacco-derived, alternative nicotine products, vapor products and accessories.
"Vape or smoke shop" means a vape or smoke retailer that devotes at least 33 percent of its floor space to selling drug paraphernalia, tobacco products and accessories, as well as tobacco-derived and alternative nicotine products or vapor products and accessories.
"Vapor Product" means any non-combustible product containing nicotine that employs a heating element, power source, electronic circuit or other electronic, chemical, or mechanical means, regardless of shape and size, that can be used to produce vapor from nicotine in a solution or other form. A "vapor product" includes any electronic cigarette, electronic cigar, electronic cigarillo, electric pipe or similar product or device, and any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar product or device.
(a) A person may not operate as a vape or smoke shop in or on any premises in the state without first obtaining a license issued by the commissioner pursuant to this article.
(b) A vape or smoke retailer may only sell authorized vapor products and shall comply with all federal, state, and local laws relating to the sales of tobacco, tobacco-derived products, and vapor products.
(c) A person licensed under this article is deemed approved to be registered as a hemp product retailer and a kratom retailer.
(d) A person who, directly or indirectly, violates subsection (a) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000 and confined in jail for not more than one year.
By obtaining a vape or smoke shop license, the licensee is deemed to have agreed and consented to the jurisdiction of the commissioner, which is Charleston, West Virginia and the Kanawha County circuit court, concerning enforcement of this article and any other related laws or rules.
(a) No vape or smoke shop license or license renewal may be granted unless the commissioner has determined that the applicant satisfies all of the following qualifications:
(1) The applicant is a United States citizen;
(2) The applicant is a person whose background, criminal record, if any, reputation, habits, and associations, do not threaten to:
(A) Compromise the public interest of the citizens of the state; or
(B) Weaken the effective regulation of vapor products;
(3) The applicant has not been convicted of perjury, false swearing, or any crime punishable by imprisonment in excess of one year under the applicable law of this state or in any other state or foreign country;
(4) The applicant has disclosed to the commissioner the identity of each person who has control of the applicant and those persons satisfy all qualifications required by this section and any applicable qualifications required by the commissioner. For purposes of this subdivision, a "person who has control of the applicant" means:
(A) A person associated with a corporate applicant, including any corporate holding company, parent company or subsidiary company of the applicant, but not including a bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business, who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation;
(B) A person associated with a noncorporate applicant who directly or indirectly holds any beneficial or proprietary interest in the applicant or who the commission determines to have the ability to control the applicant; and
(C) Key personnel of an applicant, including any executive, employee or agent, having the power to exercise significant influence over decisions concerning any part of the applicant’s business operation;
(5) The applicant has provided a set of fingerprints and has completed and signed the statement provided for in subsection (e) of this section;
(6) A listed manager on the applicant’s license application, or a licensee’s renewal application, and further that the manager shall meet all other requirements of licensure; and
(7) The applicant has furnished all information, including financial data and documents, certifications, consents, waivers, individual history forms, and other materials requested by the commissioner for purposes of determining qualifications for a license.
(b) Except as otherwise set forth in this article, the commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the commissioner shall consider at a minimum:
(1) The nature and seriousness of the crime for which the individual was convicted;
(2) The passage of time since the commission of the crime;
(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and
(4) Any evidence of rehabilitation or treatment undertaken by the individual.
(c) Except as otherwise set forth in this article, if an applicant is disqualified from licensure because of a prior criminal conviction, the commissioner shall permit the applicant to apply for initial licensure if:
(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;
(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and
(3) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the commissioner.
(d) An individual with a criminal record who has not previously applied for licensure may petition the commissioner at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the commissioner to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The commissioner shall provide the determination within 60 days of receiving the petition from the applicant. The commissioner may charge a fee to recoup its costs for each petition.
(e) The commissioner may not request a background check of an applicant under this section unless the applicant first provides a set of fingerprints and completes and signs a statement that:
(1) Contains the name, address, and date of birth appearing on a valid identification document of the applicant;
(2) Declares that the applicant has not been convicted of a crime or, if the applicant has been convicted of a crime, contains a description of the crime and the particulars of the conviction. For the purposes of this section, an applicant has not been convicted of a crime if he or she was convicted of a non-moving motor vehicle violation or a speeding violation that does not arise in connection with a motor vehicle collision;
(3) Notifies the applicant that the commissioner will request a background check; and
(4) Notifies the applicant of the applicant’s rights under subsection (i) of this section.
(f) The State Police shall establish and maintain an adequate system for background investigations that:
(1) Ensures that timely background investigations are conducted on applicants for a license to operate a vape or smoke shop, current licensees, and other persons required to be investigated by the commissioner in accordance with the provisions of this article or by legislative rules promulgated pursuant to this article;
(2) Provides for review and oversight of applicants, current licensees, and other persons on an ongoing basis;
(3) Provides that upon receipt of a background check report lacking disposition data, further research will be conducted in whatever state and local recordkeeping systems are available in order to obtain complete data;
(4) Provides for prompt notification to the commissioner of the results of background investigations before the issuance or renewal of any license; and
(5) Clearly defines a standard whereby a person’s prior activities, criminal record, if any, or reputation, habits and associations are such as to pose a threat to the public interest or to the effective regulation of vape or smoke shops, or create or enhance the dangers of unsuitable, unfair, or illegal practices and methods and activities in the conduct of vape or smoke shop operations, thereby rendering that person ineligible for licensing.
(g) The license required by this section may not be transferred from one person to another or from one premises to another. A new license is required when a vape or smoke shop has a change in ownership.
(h) The license required by this section shall be in addition to, and not in lieu of, any other requirements set forth in federal, state, or local laws.
(i) Each applicant who is the subject of a background check is entitled to a copy of his or her background investigation report, and has the right to challenge the accuracy and completeness of any information contained in the report and to obtain a prompt determination as to the validity of the challenge before a final determination is made by the commissioner that would deny issuance of a license or renewal of a license.
(j) The commissioner may propose an emergency rule and a legislative rule for legislative approval in accordance with the provision of §29A-3-1 et seq. of this code as may be necessary to carry out the purposes of this article.
(a) The annual license fee for a license issued under the provisions of this article to operate a vape or smoke shop is a minimum of $1,200.
(b) The fee for any license issued following January 1 of any year that expires on June 30 of that year is one half of the annual license fee prescribed by subsections (a) of this section.
(c) A licensee that fails to complete a renewal application and make payment of its annual license fee in renewing its license on or before June 30 of any subsequent year, after initial application, shall be charged an additional $150 reactivation fee. The fee payment may not be prorated or refunded, and the reactivation fee shall be paid prior to the processing of any renewal application and payment of the applicable full year annual license fee. A licensee who continues to operate upon the expiration of its license is subject to all fines, penalties, and sanctions available in this article, all as determined by the commissioner.
(d) Funds derived from the fees shall be remitted by the commissioner to the state treasurer and divided as follows:
(1) Fifty percent shall be credited to the Agricultural Fees Fund established by the provisions of §19-1-4c of this code; and
(2) Fifty percent shall be credited to the Alcohol Beverage Control Enforcement Fund established by the provisions of §60-7-13 of this code.
(a) No person may locate or operate a vape or smoke shop except in compliance or conformance with this article.
(b) This article does not prohibit the continuance of the existing use of any tract of land or improvement for the purpose for which such tract of land or improvement is used on the effective date. This article does not prohibit the alteration or replacement of any improvement for the purpose for which such Improvement is used on the effective date, except that the use shall not be expanded or enlarged unless it shall conform to this article.
(c) Notwithstanding anything in this article to the contrary, if an existing use is non-conforming with this article and has been abandoned, any future use of such land, premises or improvements shall conform with this article.
(a) No public entrance to a vape or smoke shop may be located within 300 feet of any property on which is situated any of the following:
(1) A public or private child daycare facility, kindergarten, elementary, grade, middle, junior, senior, secondary, or vocational school;
(2) A public or private institution of higher education;
(3) A public or private business school or college;
(4) A public park or recreational facility; including but not limited to a park, a playground, nature trail, swimming pool, athletic field, basketball court, tennis court, or wilderness area;
(5) A public library;
(6) A building used as a place of religious worship or instruction;
(7) A federal, state, county, or municipal office building;
(8) Another vape or smoke shop;
(9) An establishment that is licensed to serve alcoholic beverages; or
(10) A residence.
(b) Each of the prescribed distances to a public entrance of a vape or smoke shop shall be measured along a straight line from the nearest property line of the tract from which the measurement is to be made.
(a) It is the purpose of this section to protect property values by encouraging visually appealing, non-distracting signs; to permit signs that do not, by reason of their size, location or manner of display, to detract from the economic viability of other persons and establishments in the vicinity; to prevent signs from causing an annoyance or disturbance to a substantial number of persons; and to promote a healthy and business-friendly environment in which signs relating to a vape or smoke shop contribute to and encourage rather than detract from the economic viability of other persons and establishments in the vicinity.
(b) No person shall erect, structurally alter, or relocate any sign to advertise or promote any vape or smoke shop except in conformance with this article. It shall be unlawful for any person to erect, structurally alter or relocate any sign or improvement supporting a sign on or off the premises of a vape or smoke shop without first obtaining a permit based on an application.
(c) The application for the approval of a sign shall be made upon forms that the commissioner shall prepare and provide and shall include, without limitation, an accurate scaled sketch or drawing of the proposed sign, its proposed location, and the content of the proposed sign. The commissioner's agent may require that the location of a proposed sign be based on a survey by a registered land surveyor or engineer, at the expense of the applicant.
(d) After a sign is constructed or installed based on the application, the applicant shall provide a letter to the commissioner certifying that the sign was designed, fabricated, sized, constructed, and installed according to the application as approved.
(e) Any sign promoting a vape or smoke shop shall be flat and mounted to the wall of the improvement in which the vape or smoke shop is located and shall be mounted so that no part of the sign extends beyond the height of the improvement on which it is displayed.
(f) No merchandise or depictions of merchandise including images of marijuana or marijuana paraphernalia shall be displayed on any sign, exterior Improvement or fence advertising or promoting a vape or smoke shop or otherwise nor in any windows or any other area that may be viewed from a public street, alley, sidewalk, or public way.
(g) The size of any sign promoting a vape or smoke shop shall not exceed more than one square foot per one lineal foot of unit frontage of the property on which a vape or smoke shop is located; however, at no time shall the maximum aggregate area of the sign exceed 30 square feet. The permitted maximum size of a sign shall apply to the entire area enclosing the extreme limits of writing, representation, emblem, or figure, together with any frame or other material or color forming an integral party of the display or used to differentiate a sign from the background against which it is placed. If a sign is painted on a wall, and includes background colors or graphics, and if the sign is an integral part of the overall graphic scheme, the entire wall shall be considered a sign and its measurement computed as such. If a sign is painted on a wall, and the sign can be logically separated and measured separately from the background graphics, the background graphic scheme shall not be computed in the sign size.
(h) No vape or smoke shop shall erect or display the following:
(1) A portable or movable sign on the premises thereof.
(2) A sign advertising or promoting a vape or smoke shop at an off-premises location.
(3) A flashing sign or animated sign which incorporates in any manner flashing or moving lights or any other visible moving or revolving part, except for the time, temperature, or date sign.
(4) A commercial banner, pennant, flag, spinner, or streamer.
(5) A sign that obstructs or impairs the vision of drivers, or obstructs or detracts from the visibility of, or resembles any traffic sign or traffic control device on a public street or road, by reason of size, shape, location, color, or illumination.
(6) A sign that makes use of such words as "stop", "look", "danger" or other similar words, phrases, symbols, or characters in such a manner as to imply the need or requirement of stopping or the existence of danger.
(7) A sign that obstructs free ingress or egress from a door, window, fire escape or other exit way.
(8) A sign that no longer advertises a bona fide business, activity, campaign, service, or product; or
(9) A sign advertising or promoting a business that has been abandoned.
(i) No vape or smoke shop shall erect or maintain more than one sign advertising or promoting a vape or smoke shop on the premises thereof.
(j) No sign promoting a vape or smoke shop shall contain lights or animated parts that incorporate in any manner flashing or moving lights or any other visible moving or revolving part, except for a sign indicating time, temperature, or date.
(k) No sign promoting a vape or smoke shop shall project more than 18 inches from the wall.
(l) The commissioner shall inspect the sign after it is completed and, upon a demonstration that the sign complies or conforms with this article, may issue a permit to the applicant. If the commissioner determines that the sign does not comply or conform with this article, the commissioner shall issue a written denial of the application therefore and shall include a written statement of the reasons for denial.
(m) The commissioner may inspect signs to determine whether they are a nuisance or detrimental to public health, safety, and welfare. If so, deemed detrimental by the commissioner, the applicant shall remove or repair the sign within five days following the commissioner's determination. The commissioner may grant additional time for the removal or repair if a good faith effort is made working toward compliance.
(n) If a sign promoting a vape or smoke shop is abandoned, the sign shall be deemed a nuisance misleading the public and affecting or endangering surrounding property values and shall be deemed detrimental to the public health, safety and general welfare of the community and shall be removed or abated immediately.
(a) The commissioner shall administer and enforce the provisions of the article, except as otherwise provided in this article.
(b) The commissioner shall:
(1) Receive and process all license applications;
(2) Endeavor to grant or deny the issuance of a vape or smoke shop license within 10 working days of receipt of a complete license application;
(3) Conduct investigations as necessary to determine compliance or conformance with or violation of this article;
(4) Abate any violation of this article;
(5) Seek the assistance of the office of the West Virginia State Police, sheriff of the county or the office of the prosecuting attorney of the county to abate or prosecute any violation of this article;
(6) Assist law enforcement officers to abate or prosecute any violation of this article;
(7) Provide information about this article upon the request of citizens and public agencies;
(8) Pursue enforcement of this article as it and other law provides; and
(9) Administer this article in all respects.
(c) No commission, board, agency, officer, or employee of the county shall issue, grant, or approve any permit, license, certificate or any other authorization for any construction, reconstruction, alteration, enlargement or relocation of any vape or smoke shop building or structure, or for any use of land or building, that does not comply with the provisions of this article.
(d) In administering this article, the standard rule of rounding numbers to the nearest whole shall apply. When the unit of measurement results in a fraction less than one-half or less than .5, the fraction shall be disregarded. When the unit of measurement results in a fraction of one-half or more, or .5 or over, the number shall be rounded up to the next nearest whole number.
(a) No person may use, occupy, or permit the use or occupancy of any vape or smoke shop authorized for the retail sale of tobacco-derived products or vapor products as a residence, dwelling place, or location for human habitation.
(b) Notwithstanding any provision of this code to the contrary, a violation of subsection (a) of this section shall constitute grounds for the immediate suspension of operations at the premises by the commissioner thereof until the violation is remedied.
(a) A manufacturer of vapor products that are sold in the state shall submit a certification to the State Tax Commissioner and the Alcohol Beverage Control Commissioner that separately lists each vapor product that is sold in this state.
(b) A manufacturer of vapor products that are sold in this state, whether directly or through a distributor, wholesaler, retailer, or similar intermediary or intermediaries, shall certify, under penalty of perjury on a form and in the manner prescribed by the commissioners, that the manufacturer agrees to comply with this article and that:
(1) The manufacturer has received a marketing authorization or similar order for the vapor product from the United States Food and Drug Administration pursuant to 21 U.S.C. Section 387j; or
(2) The manufacturer submitted a premarket tobacco product application for the vapor product to the United States Food and Drug Administration pursuant to 21 U.S.C. Section 387j, and the application either remains under review by the United States Food and Drug Administration or a final decision on the application has not otherwise taken effect.
(c) Each annual certification form required by subsections (a) and (b) of this section shall be accompanied by:
(1) A copy of the marketing authorization or other order for the vapor product issued by the United States Food and Drug Administration pursuant to 21 U.S.C. Section 387j, or evidence that the premarket tobacco product application for the vapor product was submitted to the United States Food and Drug Administration and a final authorization or order has not yet taken effect; and
(2) A payment of $100 for each vapor product the first time a manufacturer submits a certification form for that vapor product and a payment of $100 annually thereafter for each vapor product.
(d) A manufacturer required to submit a certification form pursuant to subsections (a) and (b) of this section shall notify the State Tax Commissioner and the Alcohol Beverage Control Commissioner within 30 days of any material change to the certification form, including the issuance or denial of a marketing authorization or other order by the United States Food and Drug Administration pursuant to 21 U.S.C. Section 387j, or any other order or action by the United States Food and Drug Administration or a court of competent jurisdiction that affects the ability of the vapor product to be introduced or delivered into interstate commerce for commercial distribution in the United States.
(e) The State Tax Commissioner and the Alcohol Beverage Control Commissioner shall maintain and make publicly available on either commissioner’s website a directory that lists all vapor product manufacturers and the vapor products for which certification forms have been submitted and shall update the directory at least monthly to ensure accuracy.
(f) The State Tax Commissioner and the Alcohol Beverage Control Commissioner shall provide a manufacturer of vapor products a notice and an opportunity to cure deficiencies before removing the manufacturer’s vapor products from the directory.
(1) The State Tax Commissioner and the Alcohol Beverage Control Commissioner may not remove the manufacturer of a vapor product or its vapor products from the directory until at least 15 days after the manufacturer has been given notice of an intended action. Notice shall be sufficient and be deemed immediately received by a manufacturer if the notice is sent either electronically to an electronic mail address or by facsimile to a facsimile number, as provided by the manufacturer in its most recent certification filed under subsections (a) and (b) of this section.
(2) The manufacturer of a vapor product shall have 15 business days from the date of receipt of the notice of the State Tax Commissioner and the Alcohol Beverage Control Commissioner’s intended action to establish that the manufacturer of a vapor product or its vapor products should be included in the directory.
(g) If a vapor product is removed from the directory, each retailer, distributor, and wholesaler shall have 21 days from the date such product is removed from the directory to remove the product from its inventory and return the product to the manufacturer for disposal. Subsequent to 21 days following removal from the directory, a vapor product of a manufacturer identified in the notice of removal that has not been removed from a retailer, distributor, or wholesaler’s inventory are considered contraband and are subject to seizure, forfeiture, and destruction, and may not be purchased or sold in the state. The cost of such seizure, forfeiture, and destruction shall be borne by the person or entity from whom the products are confiscated.
(a) A person, vape or smoke retailer, or other entity may not sell or offer for sale a vapor product in this state that is not included in the vapor product directory, and a manufacturer of a vapor product may not sell, either directly or through a distributor or wholesaler, vape or smoke retailer, or similar intermediary or intermediaries, a vapor product in this state that is not included in the vapor product directory required by §16-9H-13 of this code.
(b) A manufacturer of a vapor product or a vape or smoke shop retailer not sell, either directly or through a distributor or wholesaler, a vapor product in this state that uses, in the name of the product, the labeling of the product, the packaging of the product, or the marketing of the product:
(1) The terms “candy,” “candies,” or variants in spelling such as “kandy” or “kandeez”;
(2) The terms “bubble gum,” “cotton candy,” “gummy bear,” “gummy worm,” “lollipop,” or other variant of these terms;
(3) References to cartoons, cartoon characters, superheroes, television shows, video games, movies, or other similar characters or references;
(4) References to or utilization of trade dress, trademarks, or other regulated imagery that imitiate or replicate trade dress, trademarks, or other imagery of food brands or products that have been primarily marketed to minors such as brands of breakfast cereals, cookies, juice drinks, soft drinks, ice creams, and frozen pops; or
(5) References to or utilization of trade dress, trademarks, or other related imagery that imitate or replicate trade dress, trademarks, or other imagery of school supplies such as USB drives or highlighters, smart phones or smart watches, headphones, any item of clothing, any toy, video game devices or phone app integration features.
(a) The following fees and penalties apply to violations of §16-9H-11:
(1) A distributor, wholesaler, or vape or smoke retailer, any other person or entity, who sells or offers for sale a vapor product in this state that is not included in the directory shall be subject to a civil penalty of $100 per day for each vapor product offered for sale in violation of this section until the offending vapor product is removed from the market or until the offending vapor product is properly listed on the directory;
(2) A manufacturer of a vapor product whose vapor product is not listed in the directory and are sold in this state, whether directly or through a distributor, wholesaler, vape or smoke retailer, or similar intermediary or intermediaries, is subject to a civil penalty of $100 per day for each vapor product offered for sale in violation of this section until the offending vapor product is removed from the market or until the offending vapor product is properly listed on the directory; or
(3) In addition, any manufacturer that falsely represents any of the information required by §16-9H-11(a) and §16-9H-11(b) of this code shall be guilty of a misdemeanor for each false representation.
(b) All fees and penalties collected by the State Tax Commissioner and the Alcohol Beverage Control Commissioner pursuant to this section shall be used for administration and enforcement of this section.
(a) All requirements and provisions of the vapor product directory shall be enforced by the State Tax Commissioner and the Alcohol Beverage Control Commissioner.
(b) To enforce the provisions of the vapor products directory, the State Tax Commissioner and the Alcohol Beverage Control Commissioner may examine all books, papers, invoices, or other records of any person or retailer in possession, control, or occupancy of any retail establishment or vape or smoke shop where vapor products are placed, stored, sold, or offered for sale, as well as the stock of vapor products on the premises. Every person or retailer in the possession, control, or occupancy of any premises where vapor products are placed, sold, or offered for sale shall give the State Tax Commissioner and the Alcohol Beverage Control Commissioner access to their facilities, and shall submit to all examinations authorized by this section.
(c) Each retail establishment, vape or smoke shop, or wholesaler that sells or distributes vapor products in this state may be subject to unannounced compliance checks for purposes of enforcing this section. At least 33% of vape or smoke shops and wholesalers operating in West Virginia each year shall be subject to compliance checks at least one time each year.
(d) Unannounced follow-up compliance checks of all noncompliant retail establishments, vape or smoke shops, or wholesalers shall be conducted within 30 days after any violation of this article. The State Tax Commissioner and the Alcohol Beverage Control Commissioner shall publish all violations of the requirements of the vapor product directory including the results of all compliance checks at least annually and shall make the results available to the public on request.
(e) The State Tax Commissioner and the Alcohol Beverage Control Commissioner may, pursuant to §29A-3-1 et seq., promulgate a separate or joint legislative rules, including emergency rules, as are necessary to effectuate the purposes of the vapor product directory.
(a) Any foreign manufacturer of vapor products must register as an out of state, or foreign, business with the Secretary of State. As a condition precedent to being included as a manufacturer in the vapor product directory, the foreign manufacturer of vapor products shall appoint and continually engage without interruption the services of an agent for service of process in West Virginia to serve as such in any action or proceeding against it concerning or arising out of the enforcement of article and who may be served in any manner authorized by law. Service of process upon this agent shall constitute legal and valid service of process on the manufacturer of vapor products. The manufacturer of a vapor product shall provide the name, address, telephone number, and proof of the appointment the agent for service of process to the State Tax Commissioner and the Alcohol Beverage Control Commissioner.
(b) The manufacturer of a vapor product shall provide notice to the State Tax Commissioner and the Alcohol Beverage Control Commissioner 30 calendar days prior to termination of the appointment of an agent for service of process and shall further provide proof to the satisfaction of the commissioners of the appointment of a new agent for service of process no less than five calendar days prior to the termination of an existing agent for service of process appointment. If an agent for service of process terminates an agency appointment, the manufacturer of vapor product shall notify the commissioners of the termination within five calendar days and shall include proof to the satisfaction of the commissioners of the appointment of a new agent for service of process.
(c) Any manufacturer of a vapor product whose vapor products are sold in this state who has not appointed services of an agent for service of process, as required by this section, shall be deemed to have appointed the Secretary of State as its agent for service of process. The appointment of the Secretary of State as agent shall not satisfy the condition precedent required in subsection (a) of this section for a manufacturer of a vapor product to be include in the directory of vapor products.
Beginning December 31, 2026, and annually thereafter, the State Tax Commissioner and the Alcohol Beverage Control Commissioner shall file an annual report with the Joint Committee on Government and Finance regarding the status of the directory, manufacturers of vapor products and vapor products included in the directory, revenue and expenditures related to administration of the vapor product directory, and a detailed summary of enforcement activities undertaken pursuant to this article.
The commissioner shall propose legislative rules for promulgation in accordance with the provisions of §29A-3-1 et seq. of this code developing labeling standards for vapor products to include, at a minimum:
(1) A warning of the potential harmful effects of the vapor product;
(2) The required age of an individual to legally purchase or attempt to purchase the vapor product;
(3) The prohibition against selling or furnishing, by purchase, gift, or other means, the vapor product to a minor;
(4) A warning to keep the vapor products away from minors;
(5) A disclosure of the common or usual names of each ingredient used in the manufacture of such product, listed in descending order or predominance; and
(6) The name, physical address, website, and principal mailing address of the manufacturer or the person responsible for distributing such product.
(a) A person who, by himself or herself or acting through another, directly or indirectly, violates any of the provisions of this article for which no other penalty is provided, shall, for the first offense, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $2,500 or confined in jail for not more than 30 days, or both fined and confined.
(b) A person who, by himself or herself or acting through another, directly or indirectly, and for the second and each subsequent violation of any of the provisions of this article for which no other penalty is provided, he or she shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000 or confined in jail for not more than six months, or both fined and confined. The penalties provided for in this subsection shall be in addition to the revocation of the offender’s license.
A person who is aggrieved by any order, requirement, decision, or determination made by the commissioner may appeal the decision pursuant to §29A-5-1 et seq. of this code. The appeal shall be filed on forms prescribed by the commissioner. The appeal shall specify the reasons for the appeal and shall be filed within 30 calendar days of the original action in question.
The provisions of this article are effective upon the approved filing of an emergency rule by the commissioner.
Adopted
Rejected