Missouri House of RepresentativesFIRST REGULAR SESSION
[PERFECTED]
HOUSE SUBSTITUTE FOR
HOUSE BILL NO. 381
91ST GENERAL ASSEMBLY
Read 2nd time January 17, 2001, and referred to the Committee on Local Government and Related Matters on February 1, 2001.
Reported from the Committee on Local Government and Related Matters on February 15, 2001, with recommendation that the bill Do Pass.
Taken up for Perfection on February 27, 2001. Bill ordered Perfected and printed, as amended.
TED WEDEL, Chief Clerk
AN ACT
To repeal sections 149.015, 407.927, 407.929 and 407.931, RSMo 2000, relating to sale of tobacco products to minors, and to enact in lieu thereof fifteen new sections relating to the same subject, with penalty provisions.
Section A. Sections 149.015, 407.927, 407.929 and 407.931, RSMo 2000, are repealed and fifteen new sections enacted in lieu thereof, to be known as sections 149.015, 149.200, 149.203, 149.206, 149.209, 149.212, 149.215, 407.924, 407.926, 407.927, 407.928, 407.929, 407.931, 407.933 and 407.934, to read as follows:
149.015. 1. A tax shall be levied upon the sale of cigarettes at an amount equal to eight and one-half mills per cigarette, until such time as the general assembly appropriates an amount equal to twenty-five percent of the net federal reimbursement allowance to the health initiatives fund, then the tax shall be six and one-half mills per cigarette beginning July first of the fiscal year immediately after such appropriation. As used in this section, "net federal reimbursement allowance" shall mean that amount of the federal reimbursement allowance in excess of the amount of state matching funds necessary for the state to make payments required by subsection 1 of section 208.471, RSMo, or, if the payments exceed the amount so required, the actual payments made for the purposes specified in subsection 1 of section 208.471, RSMo.
2. The tax shall be evidenced by stamps which shall be furnished by and purchased from the director or by an impression of the tax by the use of a metering machine when authorized by the director as provided in this chapter, and the stamps or impression shall be securely affixed to one end of each package in which cigarettes are contained. All cigarettes must be stamped before being sold in this state.
3. Cigarette tax stamps shall be purchased only from the director. All stamps shall be purchased by the director in proper denominations, shall contain such appropriate wording as the director may prescribe, and shall be of such design, character, color combinations, color changes, sizes and material as the director may, by [his] rules and regulations, determine to afford the greatest security to the state. It shall be the duty of the director to manufacture or contract for revenue stamps required by this chapter; provided that if the stamps are contracted for, the manufacturer thereof shall be within the jurisdiction of the criminal and civil courts of this state, unless the stamps cannot be obtained in this state at a fair price or of acceptable quality. If stamps are manufactured outside of the state, the director shall take any precautions which he deems necessary to safeguard the state against forgery and misdelivery of any stamps. The director may require of the manufacturer from whom stamps are purchased a bond in an amount to be determined by him commensurate with the monetary value of the stamps, containing such conditions as he may deem necessary in order to protect the state against loss.
4. It shall be the intent of this chapter that the impact of the tax levied hereunder be absorbed by the consumer or user and when the tax is paid by any other person, the payment shall be considered as an advance payment and shall thereafter be added to the price of the cigarettes and recovered from the ultimate consumer or user with the person first selling the cigarettes acting as an agent of the state for the payment and collection of the tax to the state, except that in furtherance of the intent of this chapter no refund of any tax collected and remitted by a retailer upon gross receipts from a sale of cigarettes subject to tax [under] pursuant to this chapter shall be claimed [under] pursuant to chapter 144, RSMo, for any amount illegally or erroneously overcharged or overcollected as a result of imposition of sales tax by the retailer upon amounts representing the tax imposed [under] pursuant to this chapter and any such tax shall either be refunded to the person who paid such tax or paid to the director. The director may recoup from any retailer any tax illegally or erroneously overcharged or overcollected unless such tax has been refunded to the person who paid such tax.
5. In making sales of cigarettes in the state, a wholesaler shall keep a record of the amount of tax on his gross sales. The tax shall be evidenced by appropriate stamps attached to each package of cigarettes sold.
6. The tax on any cigarettes contained in packages of four, ten, twenty or similar quantities to be used solely for distribution as samples shall be computed on a per cigarette basis at the rate set forth in this section, and payment of the tax shall be remitted to the director at such time and in such manner as he may prescribe.
7. The revenue generated by the additional two mills tax imposed effective August 13, 1982, less any three percent reduction allowed [under] pursuant to the provisions of section 149.021, shall be placed in a separate fund entitled "The Fair Share Fund". Such moneys in the fair share fund shall be distributed to the schools in this state on an average daily attendance basis, except as provided in section 163.031, RSMo.
8. The revenue generated by the additional two mills tax imposed effective October 1, 1993, less any three percent reduction allowed [under] pursuant to the provisions of section 149.021, shall be deposited in the health initiatives fund created in section 191.831, RSMo. When the general assembly appropriates an amount equal to twenty-five percent of the net federal reimbursement allowance to the health initiatives fund, this subsection shall expire. The additional two mills tax levied [under] pursuant to this section shall not apply to an amount of stamped cigarettes in the possession of licensed wholesalers on October 1, 1993, up to thirty-five percent of the total cigarette sales made by such licensed wholesaler during the six months immediately preceding October 1, 1993.
149.200. 1. It is unlawful for any person to:
(1) Sell or distribute in this state; to acquire, hold, own, possess or transport for sale or distribution in this state; or to import, or cause to be imported into this state for sale or distribution in this state, any cigarettes that do not comply with all requirements imposed by or pursuant to federal law and implementing regulations, including but not limited to the filing of ingredients lists pursuant to section 7 of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. 1335a); the permanent imprinting on the primary packaging of the precise package warning labels in the precise format specified in section 4 of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. 1333); the rotation of label statements pursuant to section 4(c) of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. 1335(c)); restrictions on the importation, transfer and sale of previously exported tobacco products pursuant to Section 9302 of Public Law 105-33, the Balanced Budget Act of 1997, as amended; requirements of Title IV of Public Law 106-476, the Imported Cigarette Compliance Act of 2000, and federal trademark and copyright laws; or
(2) Alter the package of any cigarettes, prior to sale or distribution to the ultimate consumer, so as to remove, conceal or obscure:
(a) Any statement, label, stamp, sticker or notice indicating that the manufacturer did not intend the cigarettes to be sold, distributed or used in the United States, including but not limited to labels stating "For Export Only", "U.S. Tax Exempt", "For Use Outside U.S.", or similar wording; or
(b) Any health warning that is not the precise warning statement in the precise format specified in section 4 of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. 1333).
2. It shall be unlawful for any person to affix any tax stamp or meter impression required to this chapter to the package of any cigarettes that does not comply with the requirements of subdivision (1) of subsection 1 of this section or that is altered in violation of subdivision (2) of subsection 1 of this section.
3. This section shall not apply to cigarettes allowed to be imported or brought into the United States for personal use, or to cigarettes sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with the provisions of 19 U.S.C. 1555(b) and any implementing regulations; provided, however, that this act shall apply to any such cigarettes that are brought back into the customs territory for resale within the customs territory.
4. Any person who violates this section, whether acting knowingly or recklessly, is guilty of a class D felony.
5. As used in this section, "package" means a pack, box, carton or container of any kind in which cigarettes are offered for sale, sold or otherwise distributed to consumers.
149.203. 1. The director may revoke or suspend the license or licenses of any wholesaler pursuant to the procedures set forth in section 149.035 upon finding a violation of section 149.200, or any implementing rule promulgated by the director pursuant to this chapter. In addition, the director may impose on any person a civil penalty in an amount not to exceed the greater of five hundred percent of the retail value of the cigarettes involved or five thousand dollars, upon finding a violation by such person of sections 149.200 to 149.215, or any implementing rule promulgated by the director pursuant to this chapter.
2. Cigarettes that are acquired, held, owned, possessed, transported in, imported into, or sold or distributed in this state in violation of sections 149.200 to 149.215 shall be deemed contraband pursuant to section 149.055 and are subject to seizure and forfeiture as provided therein. Any cigarettes shall be deemed contraband whether the violation of sections 149.200 to 149.215 is knowing or otherwise.
149.206. A violation of sections 149.200 to 149.215 shall constitute an unlawful trade practice as provided in section 407.020, RSMo, and in addition to any remedies or penalties set forth in sections 149.200 to 149.215, shall be subject to any remedies or penalties available for a violation of that section.
149.209. For purposes of this chapter, cigarettes imported or reimported into the United States for sale or distribution under any trade name, trade dress, or trademark that is the same as, or is confusingly similar to, any trade name, trade dress, or trademark used for cigarettes manufactured in the United States for sale or distribution in the United States shall be presumed to have been purchased outside of the ordinary channels of trade.
149.212. 1. Sections 149.200 to 149.215 shall be enforced by the director provided, that at the request of the director or the director's duly authorized agent, the state highway patrol and all local police authorities shall enforce the provisions of sections 149.200 to 149.215. The attorney general has concurrent power with the prosecuting attorneys of the states to enforce the provisions of sections 149.200 to 149.215.
2. Any person who sustains any injury, whether the injury is in the nature of an economic loss or a commercial injury as a result of any violation of sections 149.200 to 149.215 that person may bring a civil action seeking injunctive relief or other equitable relief, including the recovery of actual damages, which damages shall include in addition to the actual damages an award of interest at the judgment rate from the date of the filing of the lawsuit; costs incurred in the prosecution of the claim, and reasonable attorneys fees. In the event the court or jury determines that a violation of sections 149.200 to 149.215 was willful, the court shall assess treble damages for the willful violation of said sections.
149.215. If any provision of sections 149.200 to 149.212 is held invalid, the remainder of such sections shall not be affected.
407.924. 1. The division of liquor control within the department of public safety shall implement and enforce the provisions of sections 407.925 to 407.934.
2. Beginning January 1, 2003, the division of liquor control shall submit an annual report to the general assembly on the effectiveness of sections 407.925 to 407.934 in reducing tobacco possession by minors and the enforcement activities by the division for violations of sections 407.925 to 407.934.
407.926. 1. Any person or entity who sells tobacco products shall deny the sale of such tobacco products to any person who the seller believes is less than eighteen years of age.
2. Any person or entity who sells or distributes tobacco products by mail or through the Internet in this state in violation of subsection 1 of this section shall be assessed a fine of one thousand dollars for the first violation and two thousand five hundred dollars for each subsequent violation.
407.927. The owner of an establishment at which tobacco products or rolling papers are sold at retail or through vending machines shall cause to be prominently displayed in a conspicuous place at every display from which tobacco products are sold and on every vending machine where tobacco products are purchased a sign that shall:
(1) Contain in red lettering at least one-half inch high on a white background the following: "It is a violation of state law for cigarettes or other tobacco products to be sold or otherwise provided to any person under the age of eighteen or for such person to purchase, attempt to purchase or possess cigarettes or other tobacco products"; and
(2) Include a depiction of a pack of cigarettes at least two inches high defaced by a red diagonal diameter of a surrounding red circle, and the words "Under 18".
407.928. No person or entity shall sell individual packages containing tobacco products unless such packages satisfy one of the following conditions prior to the time of sale:
(1) It is sold through a vending machine; or
(2) It is displayed behind the check-out counter or it is within the unobstructed line of sight of the sales clerk or store attendant from the checkout counter.
407.929. 1. A person or entity selling tobacco products or rolling papers or distributing tobacco product samples shall require proof of age from a prospective purchaser or recipient if an ordinary person would conclude on the basis of appearance that such prospective purchaser or recipient may be under the age of eighteen.
2. The operator's or chauffeur's license issued pursuant to the provisions of section 302.177, RSMo, or the operator's or chauffeur's license issued pursuant to the laws of any state or possession of the United States to residents of those states or possessions, or an identification card as provided for in section 302.181, RSMo, or the identification card issued by any uniformed service of the United States, or a valid passport shall be presented by the holder thereof upon request of any agent of the division of liquor control or any registrant pursuant to section 407.934, or any agent or employee of such registrant, for the purpose of aiding the registrant, agent or employee to determine whether or not the person is at least eighteen years of age when such person desires to purchase or possess tobacco products procured from a registrant. Upon such presentation, the registrant, or registrant's agent or employee shall compare the photograph and physical characteristics noted on the license, identification card or passport with the physical characteristics of the person presenting the license, identification card or passport.
3. Any person who shall, without authorization from the department of revenue, reproduce, alter, modify or misrepresent any chauffeur's license, motor vehicle operator's license or identification card shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine of not more than one thousand dollars, and confinement for not more than one year, or by both such fine and imprisonment.
4. Reasonable reliance on proof of age or on the appearance of the purchaser or recipient shall be a defense to any action for a violation of subsections 1, 2 and 3 of section 407.931. No person shall be liable for more than one violation of subsections 2 and 3 of section 407.931 on any single day.
407.931. 1. It shall be unlawful for any person to [engage in tobacco product distribution] sell, provide or distribute tobacco products to persons under eighteen years of age.
2. By January 1, 2002, all vending machines that dispense tobacco products shall be located within the unobstructed line of sight and under the direct supervision of an adult responsible for preventing persons less than eighteen years of age from purchasing any tobacco product from such machine or shall be equipped with a lock-out device to prevent the machines from being operated until the person responsible for monitoring sales from the machines disables the lock. Such locking device shall be of a design that prevents it from being left in an unlocked condition and which will allow only a single sale when activated. A locking device shall not be required on machines that are located in areas where persons less than eighteen years of age are not permitted or prohibited by law. The registration required in section 407.934 for any owner who is subject to and in violation of the provisions of this subsection or subdivision (1) of section 407.927 shall be suspended until the division of liquor control determines that such machine is brought into compliance. A determination of noncompliance may be made by a local law enforcement agency, the highway patrol, the division of liquor control or the department of mental health. Nothing in this section shall apply to a vending machine if located in a factory, private club or other location not generally accessible to the general public.
3. No person or entity shall sell, provide or distribute any tobacco product or [distribute any tobacco product or] rolling papers to any minor, or any individual cigarettes to any person in this state. This subsection shall not apply to the distribution by family members on property that is not open to the public.
[3.] 4. Any person, including, but not limited to, a sales clerk, owner or operator who violates subsection 1 [or], 2 or 3 of this section or section 407.927 shall be [fined] penalized as follows:
(1) For the first offense, twenty-five dollars;
(2) For the second offense, one hundred dollars;
(3) For a third and subsequent offense, two hundred fifty dollars.
The establishment shall also be fined in an amount equivalent to the fines listed in subdivisions (1), (2) and (3) of this subsection. The division of liquor control in the department of public safety shall enforce the provisions of this subsection and subsection 5 of this section.
5. Any owner, operator or corporate entity who is considered the general owner or operator of the outlet where tobacco products are available for sale who violates subsection 3 of this section, in addition to the fines established in subsection 4 of this section, shall be penalized in the following manner:
(1) For the first offense, a reprimand shall be issued by the division of liquor control;
(2) For the second offense, the division of liquor control shall issue a citation prohibiting the outlet from selling tobacco products for a twenty-four hour period;
(3) For the third offense, the division of liquor control shall issue a citation prohibiting the outlet from selling tobacco products for a forty-eight hour period;
(4) For the fourth and any subsequent offenses, the division of liquor control shall issue a citation prohibiting the outlet from selling tobacco products for a five-day period.
6. Any person who is considered the general owner or operator of the outlet where tobacco products are available for sale who violates subsection 3 of this section shall not be penalized pursuant to this section if such person documents the following:
(1) An employee training program was in place to provide the employee with information on the state and federal regulations regarding tobacco sales to minors. Such training program must be attended by all employees who sell tobacco products to the general public;
(2) A signed statement by the employee stating that the employee has attended training and understands the state laws and federal regulations regarding the sale of tobacco to minors; and
(3) Such training meets the minimum training criteria established by the department of mental health.
7. The exemption in subsection 6 of this section shall not apply to any person who is considered the general owner or operator of the outlet where tobacco products are available for sale if:
(1) Four or more violations of subsection 3 of this section occur within a one-year period; or
(2) Such person knowingly violates or knowingly allows his or her employees to violate subsection 3 of this section.
[4.] 8. If a sale is made by an employee of the owner of an establishment in violation of sections 407.925 to [407.932,] 407.934, both the employee and the owner shall be guilty of an offense established in subsections 1, 2 and 3 of this section. If a vending machine is in violation of section 407.927, the owner of the establishment shall be guilty of an offense established in subsections [2 and 3] 3 and 4 of this section. If a sample is distributed by an employee of a company conducting the sampling, such employee shall be guilty of an offense established in subsections [2 and 3] 3 and 4 of this section.
9. A person cited for selling, providing or distributing any tobacco product to any individual less than eighteen years of age in violation of subsection 1, 2 or 3 of this section shall conclusively be presumed to have reasonably relied on proof of age of the purchaser or recipient, and such person shall not be found guilty of such violation if such person raises and proves as an affirmative defense that:
(1) Such individual presented a driver's license or other government-issued photo identification purporting to establish that such individual was eighteen years of age or older; or
(2) The person cited for the violation confirmed the validity of the driver's license or other government-issued photo identification presented by such individual by performing a transaction scan by means of a transaction scan device.
Such defense shall not relieve from liability any person who fails to exercise reasonable diligence in determining whether the physical description and picture appearing on the driver's license or other government-issued photo identification is that of the individual who presents it.
As used in this section, the term "transaction scan device" means any commercial device or combination of devices that is capable of deciphering in an electronically readable format information encoded on the magnetic strip or bar code of a driver's license or other government-issued photo identification containing the name, address and date of birth of the licensee or card holder.
407.933. 1. No person less than eighteen years of age shall purchase, attempt to purchase or possess cigarettes or other tobacco products unless such person is an employee of a seller of cigarettes or tobacco products and is in such possession to effect a sale in the course of employment, or an employee of the division of liquor control pursuant to subsection 5 of section 407.934.
2. Any person less than eighteen years of age shall not misrepresent his or her age to purchase cigarettes or tobacco products.
3. Any person who violates the provisions of this section shall be penalized as follows:
(1) For the first violation, the person is guilty of an infraction;
(2) For a second violation and any subsequent violations, the person is guilty of an infraction, shall have any cigarettes or tobacco products confiscated and shall complete a tobacco education or smoking cessation program, if available.
407.934. 1. No person shall sell cigarettes or tobacco products unless the person has a retail sales tax license and is registered to sell tobacco products in the state of Missouri. Any establishment located in a city or county that may suspend or revoke a license or registration for the sale of tobacco to minors or impose a fine for sales to minors shall not be assessed a penalty for the same offense by both the state and the city or county. In such case, the state law shall take precedence.
2. Beginning January 1, 2002, the department of revenue shall permit person to register through the Internet or by including a place on all sales tax returns filed pursuant to section 144.100, RSMo, for the filer to designate himself or herself as a seller of tobacco products and to provide a list of all locations where the filer sells such products.
3. On or before July first of each year, the department of revenue shall make available to the division of liquor control and the department of mental health a complete list of every establishment registered to sell cigarettes and other tobacco products in this state.
4. The division of liquor control shall have the authority to inspect stores and tobacco outlets for compliance with all laws related to access of tobacco products to minors. The division may employ a person seventeen years of age to attempt to purchase tobacco but not complete the transaction for the purpose of inspections or enforcement of tobacco laws if such person has parental consent.
5. The supervisor of the division of liquor control shall not use minors to enforce the provisions of this chapter unless the supervisor promulgates rules that establish standards for the use of minors. The supervisor shall establish mandatory guidelines for the use of minors in investigations by a state, county, municipal or other local law enforcement authority which shall be followed by such authority and which shall, at a minimum, provide for the following:
(1) The minor shall be seventeen years of age;
(2) The minor shall have a youthful appearance, and the minor, if a male, shall not have facial hair or a receding hairline and if a female, shall not wear excessive makeup or excessive jewelry;
(3) The state, county, municipal or other local law enforcement agency shall obtain the consent of the minor's parent or legal guardian before the use of such minor on a form approved by the supervisor;
(4) The state, county, municipal or other local law enforcement agency shall make a photocopy of the minor's valid identification showing the minor's correct date of birth;
(5) Any attempt by such minor to purchase tobacco products shall be videotaped or audiotaped with equipment sufficient to record all statements made by the minor and the seller of the tobacco product;
(6) The minor shall carry his or her own identification showing the minor's correct date of birth and shall, upon request, produce such identification to the seller of the tobacco product;
(7) The minor shall answer truthfully any questions about his or her age and shall not remain silent when asked questions regarding his or her age;
(8) The minor shall not lie to the seller of the tobacco product to induce a sale of tobacco products;
(9) The minor shall not be employed by the state, county, municipal or other local law enforcement agency on an incentive or quota basis;
(10) The state, county, municipal or other local law enforcement agency shall, within forty-eight hours, contact or take all reasonable steps to contact the owner or manager of the establishment if a violation occurs;
(11) The state, county, municipal or other local law enforcement agency shall maintain records of each visit to an establishment where a minor is used by the state, county, municipal or other local law enforcement agency for a period of at least one year following the incident, regardless of whether a violation occurs at each visit, and such records shall, at a minimum, include the following information:
(a) The signed consent form of the minor's parent or legal guardian;
(b) A Polaroid photograph of the minor;
(c) A photocopy of the minor's valid identification, showing the minor's correct date of birth;
(d) An information sheet completed by the minor on a form approved by the supervisor; and
(e) The name of each establishment visited by the minor, and the date and time of each visit.
6. If the state, county, municipal or other local law enforcement authority uses minors in investigations or in enforcing or determining violations of this chapter or any local ordinance and does not comply with the mandatory guidelines established by the supervisor of liquor control in subsection 6 of this section, the supervisor of liquor control shall not take any disciplinary action against the establishment or seller pursuant to this chapter based on an alleged violation discovered when using a minor and shall not cooperate in any way with the state, county, municipal or other local law enforcement authority in prosecuting any alleged violation discovered when using a minor.
7. Any establishment that knowingly sells cigarettes or tobacco products to minors without being registered with
the department of revenue pursuant to this section is guilty of an infraction.Missouri House of Representatives