MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary B

By: Representatives McBride, Short, Davis (7th), Barnett (92nd), Stribling

AN ACT TO CREATE THE MISSISSIPPI JUVENILE TOBACCO ACCESS 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 PROVIDE FOR THE REGULATION OF VENDING MACHINE TOBACCO SALES; TO PROHIBIT DISTRIBUTION OF TOBACCO PRODUCTS OTHER THAN IN SEALED PACKAGES; TO PROVIDE FOR THE REGULATION OF 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 AND 27-69-9, MISSISSIPPI CODE OF 1972, IN CONFORMITY; TO REPEAL SECTIONS 45-37-1, 45-37-3, 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 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, or retailer, 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 an absolute affirmative defense that the person selling, bartering, delivering or giving tobacco products over the counter in a retail establishment to an individual under eighteen (18) years of age in violation of this act had requested and examined a government-issued photographic identification from such person establishing his 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 products over the counter in a retail establishment to request and examine photographic identification from a person under eighteen (18) years of age prior to the sale of a tobacco product to such person if the individual is not known to the seller, barterer, deliverer or giver of the tobacco product to be over the age of eighteen (18) years, shall be construed against the seller, barterer, deliverer or giver and form a conclusive basis for the seller's violation of this section.

It shall be an absolute affirmative defense that the person or entity giving tobacco products through the mail to an individual under eighteen (18) years of age in violation of this act had requested and received documentary or written evidence from such person purportedly establishing his age to be at least eighteen (18) years of age.

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 person found in violation of this section shall be issued a citation and the holder of the retailer permit shall be sent notification of this citation 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 shall be sent a warning letter informing him of the retailer's responsibility in the selling of tobacco products. For a second conviction, the retailer, or retailer's designee, shall be required to enroll in and complete a "Retailer Tobacco Education Program."

For a third or subsequent violation of this section by any retailer, within one (1) year of the two (2) prior violations, any retailer's permit issued pursuant to Section 27-69-1 et seq., Mississippi Code of 1972, may 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 may not reapply for a permit to sell tobacco for a period of six (6) months. For the purposes of this section, "subsequent violations" are those committed at the same place of business.

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 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 retailer has violated this act so as to warrant a revocation of the retailer's 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 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 the prospective purchaser or recipient is under the age of eighteen (18) years. 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 or similar form:

"I understand that state and federal law prohibit 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 under eighteen (18) years of age if the individual is not known to the seller, barterer, deliverer or giver of the tobacco product to be over 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).

(3) No retailer who instructs his employee as provided in this section shall be liable for any violations committed by such employees.

SECTION 5. Juvenile purchase, possession and consumption of tobacco. No person under eighteen (18) years of age shall purchase any tobacco product. No student of any high school, junior high school or elementary school shall possess tobacco on any educational property as defined in Section 97-37-17, Mississippi Code of 1972.

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, unless the vending machine is located in an establishment to which individuals under the age of eighteen (18) years are denied access or are required to be accompanied by an adult. A person who violates this section shall be punished by a penalty of not more than Two Hundred Fifty Dollars ($250.00).

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. Unannounced Inspections. The Office of the Attorney General or local law enforcement agencies shall at least annually conduct random, unannounced inspections at locations where tobacco products are sold or distributed to ensure compliance with the Mississippi Tobacco Youth Access Prevention Act of 1997. Persons under the age of eighteen (18) years may be enlisted by the Office of the Attorney General or local law enforcement to test compliance with the Mississippi Juvenile Tobacco Access Prevention Act of 1997, provided that the parent or legal guardian of the person under eighteen (18) years of age so utilized has given prior written consent for the minor's participation in unannounced inspections. The Office of the Attorney General must prepare a report of the findings, and report these findings to the Department of Health and Department of Mental Health. The Department of Mental Health shall prepare the annual report required by Section 1926, subpart 1 of Part B, Title XIX of the Federal Public Health Service Act (42 USCS 300X-26). The report shall be approved by the Governor and then promptly transmitted to the Secretary of the United States Department of Health and Human Services.

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 any 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 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 27-69-9, 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 or retailer.

SECTION 14. 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 15. Sections 45-37-1, 45-37-3, 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 16. 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 17. This act shall take effect and be in force from and after February 1, 1998.