1997 Regular Session
To: Judiciary B
By: Representatives McBride, Short, Davis (7th), Barnett (92nd), Stribling
House Bill 1389
(As Passed the House)
AN ACT TO CREATE THE MISSISSIPPI JUVENILE TOBACCO ACCESS AND PREVENTION ACT OF 1997; TO ENACT DEFINITIONS; TO PROHIBIT THE SALE OR TRANSFER OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF 18; TO REQUIRE NOTIFICATION OF THE LAW TO RETAIL SALES CLERKS; TO PROHIBIT JUVENILE PURCHASE, POSSESSION AND CONSUMPTION OF TOBACCO; TO ENACT PENALTIES; TO REQUIRE POSTING OF WARNING SIGNS; TO CRIMINALIZE JUVENILE MISREPRESENTATION OF AGE; TO REGULATE VENDING MACHINE TOBACCO SALES; TO PROHIBIT DISTRIBUTION OF TOBACCO PRODUCTS OTHER THAN IN SEALED PACKAGES; TO REGULATE TRANSFERS OF TOBACCO PRODUCTS FROM DISTRIBUTORS OR WHOLESALERS TO RETAILERS; TO AUTHORIZE THE ATTORNEY GENERAL TO CHECK COMPLIANCE WITH THE PROVISIONS OF THIS ACT; TO AMEND SECTIONS 27-69-5, 27-69-7, 27-69-9 AND 43-21-159, MISSISSIPPI CODE OF 1972, IN CONFORMITY; TO REPEAL SECTIONS 45-37-1, 45-37-3, 45-37-5, 45-37-7, 97-5-25, 97-5-43, 97-5-45, 97-5-47 AND 97-27-35, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE THE PREVENTION OF YOUTH ACCESS TO TOBACCO ACT, AUTHORIZED UNANNOUNCED INSPECTIONS AND REQUIRE AN ANNUAL REPORT, PROHIBIT THE SALE OR GIFT OF TOBACCO TO A CHILD UNDER THE AGE OF 18, REQUIRE THE POSTING OF A SIGN DECLARING PROHIBITION OF THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF 18, REQUIRE NOTICE OF THE PROHIBITIONS TO EMPLOYEES, RESTRICT THE SALE OF TOBACCO PRODUCTS THROUGH VENDING MACHINES, AND PROHIBIT THE SALE OF TOBACCO PRODUCTS NOT IN THE ORIGINAL SEALED CONTAINER; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Short title. This act shall be known and cited as "the Mississippi Juvenile Tobacco Access and Prevention Act of 1997."
SECTION 2. Definitions. For the purposes of this act:
(a) "Dealer" means every person, firm, corporation or association of persons, except retailers as defined herein, who receives the product from the manufacturer of tobacco for distribution, for sale, for use, or for consumption in the State of Mississippi.
(b) "Person" means any natural person.
(c) "Photographic identification" means any government-issued card that includes a photograph of the person seeking to purchase tobacco products and that is accepted as proof of age under Mississippi law.
(d) "Point of sale" means a store, stand, or any other place of business or point of distribution maintained by a seller from which tobacco products are made available for sale or distribution to consumers.
(e) "Retailer" includes every company, corporation, partnership, business association, joint venture, estate, trust, or any other combination acting as a unit or legal entity other than a wholesale dealer as defined below, whose business is that of selling merchandise at retail, who shall sell or offer for sale tobacco to the consumer.
(f) "Seller" means any natural person, company, corporation, firm, partnership, organization or other legal entity who sells, dispenses, distributes or issues tobacco products for commercial purposes.
(g) "Tobacco product" means any substance that contains tobacco including, but not limited to, cigarettes, cigars, pipes, snuff, smoking tobacco, or smokeless tobacco.
(h) "Wholesaler" includes dealers whose principal business is that of wholesale dealer or jobber, who is known to the retail trade as such, and whose place of business is located in Mississippi or in a state which affords reciprocity to wholesalers domiciled in Mississippi, who shall sell any taxable tobacco to retail dealers only for the purpose of resale.
(i) "Retailer Tobacco Prevention Education Program" includes any program authorized by the Attorney General that teaches and informs retailers and wholesalers about the laws regarding youth access to tobacco products.
SECTION 3. Prohibition of the sale or transfer of tobacco products to persons under 18 years of age. It shall be unlawful for any person, retailer or wholesaler, to sell, barter, deliver or give tobacco products to any individual under eighteen (18) years of age unless the individual under eighteen (18) years of age holds a retailer's license to sell tobacco under Section 27-69-1 et seq., Mississippi Code of 1972.
It shall be deemed that no offense has occurred on the part of the person selling, bartering, delivering or giving tobacco products to an individual under eighteen (18) years of age in violation of this act if such person had requested and examined a government-issued photographic identification from such person establishing their age as at least eighteen (18) years prior to selling such person a tobacco product. The failure of a seller, barterer, deliverer or giver of tobacco goods to request and examine photographic identification from a person who reasonably appears to be under eighteen (18) years of age, or as required by federal regulation, prior to the sale of a tobacco product to such person shall be construed against the seller, barterer, deliverer or giver and form a conclusive basis for the seller's violation of this section.
Any person who violates this section shall be liable as follows: For a first conviction, a fine of Fifty Dollars ($50.00); for a second conviction, a fine of Seventy-five Dollars ($75.00); and for all subsequent convictions, a fine of One Hundred Fifty Dollars ($150.00) shall be imposed.
Any retailer or wholesaler found in violation of this section shall be issued a citation and sent notification of this citation in person or by registered mail by the law enforcement agency issuing the citation. Notification shall include the opportunity for hearing before the appropriate court. For a first conviction, the retailer or wholesaler shall be sent a warning letter informing him of the retailer's or wholesaler's responsibility in the selling of tobacco products. For a second conviction within one (1) year of the prior violation, the retailer or wholesaler, or their designee, shall be required to enroll in and complete a "Retailer Tobacco Education Program."
For a third and subsequent violations of this section by any retailer or wholesaler within one (1) year of the two (2) prior violations, any retailer's or wholesaler's permit issued pursuant to Section 27-69-1 et seq., Mississippi Code of 1972, shall be revoked or suspended for a period of at least one (1) year after notice and opportunity for hearing. If said permit is revoked by the tax commission, the retailer or wholesaler may not reapply for a permit to sell tobacco for a period of one (1) year. For the purposes of this section, "subsequent violations" are those committed at the same place of business. It shall be deemed that no offense has occurred on the part of the retailer or wholesaler if the retailer or wholesaler is in compliance with Section 4 of this act.
It is the responsibility of all law enforcement officers and law enforcement agencies of this state to ensure that the provisions of this act are enforced.
It shall not be considered a violation of this section on the part of any law enforcement officer or person under eighteen (18) years of age for any law enforcement officer of this state to use persons under eighteen (18) years of age to purchase or attempt to purchase tobacco products for the purpose of monitoring compliance with this section, as long as those persons are supervised by duly authorized law enforcement agency officials.
Any law enforcement agency conducting enforcement efforts undertaken pursuant to this act shall prepare a report as prescribed by the Attorney General which includes the number of unannounced inspections conducted by the agency, a summary of enforcement actions taken pursuant to this act, the name and permit number of the retailer or wholesaler pursuant to Section 27-69-1 et seq., Mississippi Code of 1972, and final judicial disposition on all enforcement actions. Reports shall be forwarded to the office of the Attorney General within twenty (20) working days of the final judicial disposition.
On notification from local law enforcement that a distributor, wholesaler, dealer or retailer has violated this act so as to warrant a revocation of their permit, the Attorney General shall notify in writing the State Tax Commission within twenty (20) working days.
In accordance with the procedures of Section 27-69-9, Mississippi Code of 1972, the State Tax Commission shall initiate revocation procedures of the distributor's, wholesaler's, dealer's or retailer's permit. The office of the Attorney General shall provide legal assistance in revocation procedures when requested by the tax commission.
SECTION 4. Retail sales clerks; notification and agreement; penalties for violations. (1) 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: (a) prohibits the sale or distribution of tobacco products, including samples, to any person under eighteen (18) years of age and the purchase or receipt of tobacco products by any person under eighteen (18) years of age, and (b) requires that proof of age be demanded from a prospective purchaser or recipient if a reasonable person would conclude on the basis of appearance that the prospective purchaser or recipient may be under the age of eighteen (18) years of age. Every person employed by a person engaged in the business of selling tobacco products at retail shall sign an agreement with his employer in substantially the following form:
"I understand that state law prohibits the sale or distribution of tobacco products to persons under the age of eighteen (18) years and out-of-package sales, and requires that proof of age be demanded from a prospective purchaser or recipient if a reasonable person would conclude on the basis of appearance that the prospective purchaser or recipient may be under the age of eighteen (18) years. I promise, as a condition of my employment, to observe this law."
(2) Any person violating the provisions of this section shall be penalized not less than Fifty Dollars ($50.00) nor more than One Hundred Dollars ($100.00).
SECTION 5. Juvenile purchase, possession and consumption of tobacco. No person under eighteen (18) years of age shall purchase or possess any tobacco product. In addition, no student of any high school, junior high school or elementary school shall possess tobacco on any school property in this state. Any person who violates this section may be issued a citation and summons. Copies of the notice of a citation must be sent by registered mail to the parent, guardian or custodian of the minor by law enforcement officers issuing the citation, or law enforcement officials may contact the minor's parent or guardian by either telephone or in person.
Upon conviction or adjudication, the court shall impose a penalty of up to twenty-five (25) hours of community service, and participation in an educational program addressing the risks of tobacco consumption where available.
For a subsequent violation of this section a citation, notice of citation and summons shall be issued. Copies of the notice of a citation must be sent by registered mail to the parent, guardian or custodian of the minor by the law enforcement agency issuing the citation, or appropriate law enforcement officials may contact the minor's parent or guardian by either telephone or in person.
Adjudication of subsequent offenses shall include a penalty of up to seventy-five (75) hours of community service, and participation in an educational program addressing the risks of tobacco consumption where available.
Adjudication under this section shall be deemed to be noncriminal.
SECTION 6. Point of sale warning signs. Point of sale warning signs are required, and each seller shall place and maintain in legible condition, at each point of sale of tobacco products to consumers, a sign no smaller than eight and one-half (8-1/2) by eleven (11) inches or ninety-three ( 93) square inches stating: "STATE LAW PROHIBITS THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF 18 YEARS. PROOF OF AGE REQUIRED."
Any person who violates this section shall be punished by a penalty of not more than One Hundred Dollars ($100.00).
SECTION 7. Juvenile misrepresentation of age. Any person under the age of eighteen (18) years who falsely states he is eighteen (18) years of age or older, or presents any document that indicates he is eighteen (18) years of age or older, for the purpose of purchasing or possessing any tobacco or tobacco product shall be penalized not less than Twenty-five Dollars ($25.00) nor more than Two Hundred Dollars ($200.00) or required to complete at least thirty (30) days community service, or both.
SECTION 8. Vending machine tobacco sales; location. It shall be unlawful for any person to sell tobacco products through a vending machine, except in any business establishment or other place where only persons under the age of eighteen (18) are supervised.
SECTION 9. Prohibition on the distribution of tobacco products other than in sealed packages. No retailer shall distribute tobacco products other than cigars and pipe tobacco for commercial purposes other than in a sealed package provided by the manufacturer with the required health warning. A retailer who is in violation of this section shall be liable for a penalty of not more than One Hundred Dollars ($100.00) for the first violation or enrollment in a Retailer Tobacco Education Prevention Program, or both; not more than Two Hundred Dollars ($200.00) for a second violation within one (1) year of a prior violation; and a penalty of Three Hundred Dollars ($300.00) for all subsequent violations.
In addition, for a third and all subsequent violations within one (1) year of two (2) prior violations, the permit to sell tobacco products of any person violating this section may be suspended or revoked under the provisions of Section 27-69-1 et seq., Mississippi Code of 1972, for a period of one (1) year after notice and opportunity for a hearing. For the purposes of this section, "subsequent violations" are those committed at the same place of business.
SECTION 10. Transfers of tobacco products from distributors or wholesalers to retailers. No distributor or wholesaler of tobacco products shall sell, distribute, deliver, or in any other manner transfer any tobacco products for sale at retail to any person not possessing a valid tobacco permit under Section 27-69-1 et seq., Mississippi Code of 1972.
Any distributor or wholesaler who violates this section shall be liable for a penalty of up to Two Hundred Fifty Dollars ($250.00) for a first offense. For a second offense within one (1) year of the prior offense, any distributor or wholesaler shall be liable for a penalty of up to Five Hundred Dollars ($500.00).
For all subsequent offenses within one (1) year of two (2) prior offenses, the distributor or wholesaler may become ineligible to hold a tobacco distributor's permit for a period of at least one (1) year under Section 27-69-1 et seq., Mississippi Code of 1972, and shall be liable for a penalty of One Thousand Dollars ($1,000.00).
SECTION 11. Inspections. The office of the Attorney General shall frequently visit locations where tobacco products are sold or distributed to ensure compliance with the Mississippi Tobacco Youth Access and Prevention Act of 1997. The Office of the Attorney General shall investigate all complaints related to any violations of this act. When any law enforcement officer has knowledge of a violation of this act, it shall be his duty to report such violation to the proper prosecuting authority who shall investigate and prosecute cases of violations of this act.
SECTION 12. Section 27-69-5, Mississippi Code of 1972, is amended as follows:
27-69-5. Every distributor, wholesaler, * * * dealer or retailer who desires to become engaged in the sale or use of tobacco upon which a tax is required to be paid shall file with the commissioner an application for a permit to engage in such business. The application for a permit shall be filed on blanks to be furnished by the commissioner for that purpose. The application must be subscribed and sworn to by the person owning the business, or having an ownership interest therein. If the applicant is a corporation, a duly authorized agent shall execute the application. The application shall show the name of such person, and in case of partnership, the name of each partner thereof, the person's post office address, the location of the place of business to which the permit shall apply, and the nature of the business in which engaged, and any other information the commissioner may require. No distributor, wholesaler, * * * dealer or retailer shall sell any tobacco until such application has been filed, the prescribed permit fee paid, and the permit obtained. Said permit shall expire on January 31 of each year.
An application shall be filed, and a permit obtained for each place of business owned or operated by each distributor, wholesaler, * * * dealer or retailer.
Upon receipt of the application and permit fee hereinafter provided for, the commissioner may issue to every distributor, wholesaler, * * * dealer or retailer, for the place of business designated, a nonassignable permit, authorizing the sale or use of tobacco in the state. Said permit shall provide that the same is revocable, and may be forfeited or suspended upon violation of any provision of this chapter, the Mississippi Tobacco Youth Access and Prevention Act of 1997 or any rule or regulation adopted by the commissioner. If such permit is revoked or suspended, said distributor, wholesaler or dealer shall not sell any tobacco from such place of business until a new permit is granted, or the suspension of the old permit removed.
A permit cannot be transferred from one person to another, and the permit shall at all times be publicly displayed by the distributor, wholesaler, * * * dealer or retailer in his place of business so as to be seen easily by the public. A permit may be refused to any person previously convicted of violations of this chapter.
SECTION 13. Section 27-69-7, Mississippi Code of 1972, is amended as follows:
27-69-7. In addition to the excise tax on each person selling, using, consuming, handling or distributing tobacco as hereinafter provided, it is hereby made the duty of the commissioner to collect a privilege tax of One Hundred Dollars ($100.00) for each permit issued to every distributor, wholesaler or dealer doing business in this state and a privilege tax of Twenty-five Dollars ($25.00) for each permit issued to a retailer.
Foreign manufacturers, wholesalers, or distributors may secure a permit from the commissioner, upon the payment of a fee of One Hundred Dollars ($100.00), and foreign retailers may secure a permit from the commissioner upon the payment of a fee of Twenty-five Dollars ($25.00). Foreign manufacturers, wholesalers, distributors and retailers shall agree in an application sworn to and certified, that the excise tax shall be paid on all shipments of taxable tobacco into the State of Mississippi, that the required tax stamps shall be affixed to cigarettes, and that the commissioner, or his authorized agent, shall be permitted to inspect and audit their records of tobacco shipments into the State of Mississippi at any and all reasonable times.
It is further provided that any person who engages in any business for which a permit is required by this chapter, before procuring a permit, or after the permit is cancelled, shall be guilty of a misdemeanor * * *.
SECTION 14. Section 27-69-9, Mississippi Code of 1972, is amended as follows:
27-69-9. In addition to the penalties imposed in this chapter, after the second offense for any violation, the commissioner may revoke any permit which may have been issued to any person, or persons, violating any provisions of this chapter, or any rules or regulations promulgated by the commissioner under authority of this chapter, after giving such person ten (10) days' notice in writing of his intention to revoke such permit. * * *
The commissioner, in the event a permit is revoked, is required to notify by letter, all manufacturers, wholesalers and distributors having a permit required by this chapter, that such permit has been revoked, and such manufacturer, wholesaler and distributor is henceforth prohibited from selling taxable tobacco to such dealer.
* * *
SECTION 15. Section 43-21-159, Mississippi Code of 1972, is amended as follows:
43-21-159. (1) When a person appears before a court other than the youth court, and it is determined that the person is a child under jurisdiction of the youth court, such court shall, unless the jurisdiction of the offense has been transferred to such court as provided in this chapter, or unless the child has previously been the subject of a transfer from the youth court to the circuit court for trial as an adult and was convicted, immediately dismiss the proceeding without prejudice and forward all documents pertaining to the cause to the youth court; and all entries in permanent records shall be expunged. The youth court shall have the power to order and supervise the expunction or the destruction of such records in accordance with Section 43-21-265. The youth court is authorized to expunge the record of any case within its jurisdiction in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case. In cases where the child is charged with a hunting or fishing violation or a traffic violation whether it be any state or federal law, a violation of the Mississippi Implied Consent Law, or municipal ordinance or county resolution or where the child is charged with a violation of Section 67-3-70, or a violation of the Mississippi Juvenile Tobacco Access and Prevention Act of 1997, the appropriate criminal court shall proceed to dispose of the same in the same manner as for other adult offenders and it shall not be necessary to transfer the case to the youth court of the county. Unless the cause has been transferred, or unless the child has previously been the subject of a transfer from the youth court to the circuit court for trial as an adult, except for violations under the Implied Consent Law, and was convicted, the youth court shall have power on its own motion to remove jurisdiction from any criminal court of any offense including a hunting or fishing violation, a traffic violation, or a violation of Section 67-3-70, committed by a child in a matter under the jurisdiction of the youth court and proceed therewith in accordance with the provisions of this chapter.
(2) After conviction and sentence of any child by any other court having original jurisdiction on a misdemeanor charge, and within the time allowed for an appeal of such conviction and sentence, the youth court of the county shall have the full power to stay the execution of the sentence and to release the child on good behavior or on other order as the youth court may see fit to make unless the child has previously been the subject of a transfer from the youth court to the circuit court for trial as an adult and was convicted. When a child is convicted of a misdemeanor and is committed to, incarcerated in or imprisoned in a jail or other place of detention by a criminal court having proper jurisdiction of such charge, such court shall notify the youth court judge or the judge's designee of the conviction and sentence prior to the commencement of such incarceration. The youth court shall have the power to order and supervise the destruction of any records involving children maintained by the criminal court in accordance with Section 43-21-265. However, the youth court shall have the power to set aside a judgment of any other court rendered in any matter over which the youth court has exclusive original jurisdiction, to expunge or destroy the records thereof in accordance with Section 43-21-265, and to order a refund of fines and costs.
(3) Nothing in subsection (1) or (2) shall apply to a youth who has a pending charge or a conviction for any crime over which circuit court has original jurisdiction.
(4) In any case wherein the defendant is a child as defined in this chapter and of which the circuit court has original jurisdiction, the circuit judge, upon a finding that it would be in the best interest of such child and in the interest of justice, may at any stage of the proceedings prior to the attachment of jeopardy transfer such proceedings to the youth court for further proceedings unless the child has previously been the subject of a transfer from the youth court to the circuit court for trial as an adult and was convicted or has previously been convicted of a crime which was in original circuit court jurisdiction, and the youth court shall, upon acquiring jurisdiction, proceed as provided in this chapter for the adjudication and disposition of delinquent child proceeding proceedings. If the case is not transferred to the youth court and the youth is convicted of a crime by any circuit court, the trial judge shall sentence the youth as though such youth was an adult. The circuit court shall not have the authority to commit such child to the custody of the Department of Youth Services for placement in a state-supported training school.
(5) In no event shall a court sentence an offender over the age of eighteen (18) to the custody of the Division of Youth Services for placement in a state-supported training school.
(6) When a child's driver's license is suspended by the youth court for any reason, the clerk of the youth court shall report the suspension, without a court order under Section 43-21-261, to the Commissioner of Public Safety in the same manner as such suspensions are reported in cases involving adults.
(7) No offense involving the use or possession of a firearm by a child who has reached his fifteenth birthday and which, if committed by an adult would be a felony, shall be transferred to the youth court.
SECTION 16. It shall be unlawful to publish the name or identity of any person under the age of eighteen (18) years who is convicted or adjudicated of any violation of this act.
SECTION 17. Sections 45-37-1, 45-37-3, 45-37-5 and 45-37-7, and 97-27-35, Mississippi Code of 1972, which constitute the Prevention of Youth Access to Tobacco Act and, in part, authorized unannounced inspections and required an annual report, are repealed.
SECTION 18. Sections 97-5-25, 97-5-43, 97-5-45 and 97-5-47, Mississippi Code of 1972, which prohibit the sale or gift of tobacco to a child under the age of eighteen (18) years, require the posting of a sign declaring prohibition of the sale of tobacco products to persons under the age of eighteen (18) years, require notice of the prohibitions to employees, restrict the sale of tobacco products through vending machines, and prohibit the sale of tobacco products not in the original sealed container, are repealed.
SECTION 19. This act shall take effect and be in force from and after February 1, 1998.