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1999 SESSION

991562112
HOUSE BILL NO. 2611
Offered January 21, 1999
A BILL to amend and reenact § 18.2-371.2 of the Code of Virginia, relating to prohibiting purchase or possession of tobacco products by minors or sale of tobacco products to minors; penalties.
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Patron-- Almand
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That § 18.2-371.2 of the Code of Virginia is amended and reenacted as follows:

§ 18.2-371.2. Prohibiting purchase or possession of tobacco products by minors or sale of tobacco products to minors.

A. No person shall sell to, distribute to, purchase for or knowingly permit the purchase by any person less than eighteen years of age, knowing or having reason to believe that such person is less than eighteen years of age, any tobacco product, including but not limited to cigarettes and cigars. Tobacco products may be sold from a vending machine only if the machine is (i) posted with a notice, in a conspicuous manner and place, indicating that the purchase or possession of tobacco products by minors is unlawful and (ii) located in a place which is not open to the general public and is not generally accessible to minors. An establishment which prohibits the presence of minors unless accompanied by an adult is not open to the general public.

B. No person less than eighteen years of age shall purchase or possess any tobacco product including but not limited to cigarettes and cigars. The provisions of this subsection shall not be applicable to the possession of tobacco products by a person less than eighteen years of age making a delivery of tobacco products in pursuance of his employment.

C. No person shall sell a tobacco product to any individual who does not demonstrate, by producing a driver's license or similar photo identification issued by a government agency, that the individual is at least eighteen years of age. Such identification is not required from an individual whom the person has reason to believe is at least eighteen years of age or who the person knows is at least eighteen years of age. Proof that the person demanded, was shown, and reasonably relied upon a photo identification stating that the individual was at least eighteen years of age shall be a defense to any action brought under this subsection. In determining whether a person had reason to believe an individual is at least eighteen years of age, the trier of fact may consider, but is not limited to, proof of the general appearance, facial characteristics, behavior and manner of the individual.

This subsection shall not apply to mail order sales.

D. A violation of subsection A or C by an individual or by a separate retail establishment shall be punishable by a civil penalty not to exceed $100 for a first violation and, a civil penalty not to exceed $200 for a second violation. However, and a civil penalty not to exceed $500 for a third or subsequent violation of subsection A shall be punishable by a civil penalty not to exceed $500. Where a defendant retail establishment offers proof that it has trained its employees concerning the requirements of this section, the court may suspend all or any portion of the penalties imposed hereunder. However, where the court finds that a retail establishment has failed to so train its employees, the court may impose a civil penalty not to exceed $1,000 in lieu of any penalties imposed hereunder.

A violation of subsection B shall be punishable by a civil penalty not to exceed $50 $100 for a first violation and a civil penalty not to exceed $100 $250 for a second or subsequent violation. Upon a third or subsequent violation of subsection B, the judge in his discretion may enter an order pursuant to subdivision 9 of § 16.1-278.8.

Any attorney for the Commonwealth of the county or city in which an alleged violation occurred may bring an action to recover the civil penalty, which shall be paid into the state treasury. Any law-enforcement officer may issue a summons for a violation of subsection A, B, or C.

E. 1. Cigarettes shall be sold only in sealed packages provided by the manufacturer, with the required health warning. The proprietor of every retail establishment which offers for sale any tobacco product, including but not limited to cigarettes and cigars, shall post in a conspicuous manner and place a sign or signs indicating that the sale of tobacco products to any person under eighteen years of age is prohibited by law. Any attorney for the county, city or town in which an alleged violation of this subsection occurred may enforce this subsection by civil action to recover a civil penalty not to exceed fifty dollars. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city or town which instituted the action.

2 For the purpose of compliance with regulations of the Substance Abuse and Mental Health Services Administration published at 61 Federal Register 1492, the Department of Agriculture and Consumer Services may promulgate regulations which allow the Department to undertake the activities necessary to comply with such regulations.

3. Any attorney for the county, city or town in which an alleged violation of this subsection occurred may enforce this subsection subdivision by civil action to recover a civil penalty not to exceed $100. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city or town which instituted the action.

F. Nothing in this section shall be construed to create a private cause of action.

G. Agents of the Virginia Alcoholic Beverage Control Board designated pursuant to § 4.1-105 may issue a summons for any violation of this section.