AN ACT
Relating to enforcement of cigarette and tobacco statutes; amending RCW
66.28.090, 66.44.010, 66.44.370, 82.24.010, 82.24.027, 82.24.030, 82.24.040,
82.24.050, 82.24.070, 82.24.090, 82.24.110, 82.24.120, 82.24.130, 82.24.135,
82.24.145, 82.24.180, 82.24.190, 82.24.210, 82.24.230, 82.24.250, 82.24.510,
82.24.520, 82.24.550, 82.24.560, 82.26.010, 82.26.050, 82.26.060, 82.26.080,
82.26.090, 82.26.110, and 82.26.120; adding a new section to chapter 82.24 RCW;
adding a new section to chapter 82.26 RCW; adding a new section to chapter
82.32 RCW; creating new sections; repealing RCW 82.24.260; providing an
effective date; and declaring an emergency.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
66.28.090 and 1981 1st ex.s. c 5 s 20 are each amended to read as follows:
(1)
All licensed premises used in the manufacture, storage, or sale of liquor, or
any premises or parts of premises used or in any way connected, physically or
otherwise, with the licensed business, and/or any premises where a banquet
permit has been granted, shall at all times be open to inspection by any liquor
and tobacco enforcement officer, inspector, or peace officer.
(2)
Every person, being on any such premises and having charge thereof, who refuses
or fails to admit a liquor and tobacco enforcement officer, inspector,
or peace officer demanding to enter therein in pursuance of this section in the
execution of ((his/her)) his or her duty, or who obstructs or
attempts to obstruct the entry of such liquor and tobacco enforcement
officer, inspector, or officer of the peace, or who refuses to allow a
liquor and tobacco enforcement officer, and/or an inspector to examine
the books of the licensee, or who refuses or neglects to make any return
required by this title or the ((regulations)) rules, shall be
guilty of a violation of this title.
Sec.
2. RCW
66.44.010 and 1987 c 202 s 224 are each amended to read as follows:
(1)
All county and municipal peace officers are hereby charged with the duty of
investigating and prosecuting all violations of this title, and the penal laws
of this state relating to the manufacture, importation, transportation,
possession, distribution, and sale of liquor, and all fines imposed for
violations of this title and the penal laws of this state relating to the
manufacture, importation, transportation, possession, distribution, and
sale of liquor shall belong to the county, city, or town wherein the
court imposing the fine is located, and shall be placed in the general fund for
payment of the salaries of those engaged in the enforcement of the provisions
of this title and the penal laws of this state relating to the manufacture,
importation, transportation, possession, distribution, and sale of
liquor: PROVIDED, That all fees, fines, forfeitures, and penalties
collected or assessed by a district court because of the violation of a state
law shall be remitted as provided in chapter 3.62 RCW as now exists or is later
amended.
(2) In
addition to any and all other powers granted, the board shall have the power to
enforce the penal provisions of this title and the penal laws of this state
relating to the manufacture, importation, transportation, possession,
distribution, and sale of liquor.
(3)
In addition to the other duties under this section, the board shall enforce
chapters 82.24 and 82.26 RCW.
(4)
The board may appoint and employ, assign to duty and fix the compensation of,
officers to be designated as liquor and tobacco enforcement officers.
Such ((liquor)) enforcement officers shall have the power, under the
supervision of the board, to enforce the penal provisions of this title and the
penal laws of this state relating to the manufacture, importation,
transportation, possession, distribution, and sale of liquor, and the
provisions of chapters 82.24 and 82.26 RCW relating to cigarettes and tobacco.
They shall have the power and authority to serve and execute all warrants and
process of law issued by the courts in enforcing the penal provisions of this
title or of any penal law of this state relating to the manufacture,
importation, transportation, possession, distribution, and sale of
liquor, and the provisions of chapters 82.24 and 82.26 RCW relating to
cigarettes and tobacco. They shall have the power to arrest without a
warrant any person or persons found in the act of violating any of the penal
provisions of this title or of any penal law of this state relating to the
manufacture, importation, transportation, possession, distribution, and
sale of liquor, and the provisions of chapters 82.24 and 82.26 RCW relating
to cigarettes and tobacco.
(5)
The board shall make a special effort to enforce laws that protect children and
young adults from the harmful effects of tobacco and alcohol consumption.
Sec.
3. RCW
66.44.370 and 1981 1st ex.s. c 5 s 27 are each amended to read as follows:
No
person shall knowingly or willfully resist or oppose any state, county,
or municipal peace officer, or liquor and tobacco enforcement officer,
in the discharge of ((his/her)) his or her duties under Title 66
RCW, or aid and abet such resistance or opposition. Any person who violates
this section shall be guilty of a violation of this title and subject to arrest
by any such officer.
Sec.
4. RCW
82.24.010 and 1961 c 15 s 82.24.010 are each amended to read as follows:
For
the purposes of this chapter, unless otherwise required by the context:
(1)
"Wholesaler" means every person who purchases, sells, or distributes
any one or more of the articles taxed herein to retailers for the purpose of
resale only;
(2)
"Retailer" means every person, other than a wholesaler, who
purchases, sells, offers for sale, or distributes any one or more of the
articles taxed herein, irrespective of quantity or amount, or the number of
sales, and all persons operating under a retailer's registration certificate;
(3) (("Retail
selling price" means the ordinary, customary or usual price paid by the
consumer for each package of cigarettes, the tax levied by this chapter and tax
levied by this state;
(4)))
"Cigarette" means any roll for smoking made wholly or in part of
tobacco, irrespective of size or shape and irrespective of the tobacco being
flavored, adulterated, or mixed with any other ingredient, where such roll has
a wrapper or cover made of paper or any material, except where such wrapper is
wholly or in the greater part made of natural leaf tobacco in its natural
state;
(((5)))
(4) "Stamp" means the stamp or stamps or meter impressions by
use of which the tax levy under this chapter is paid;
(5)
"Board" means the liquor control board;
(6)
The meaning attributed, in chapter 82.04 RCW, to the words "person,"
"sale," "business," and "successor" shall
apply equally in the provisions of this chapter.
Sec.
5. RCW
82.24.027 and 1986 c 3 s 12 are each amended to read as follows:
There
is hereby levied and there shall be collected by the ((department of revenue))
board from the persons mentioned in and in the manner provided by this
chapter, an additional tax upon the sale, use, consumption, handling,
possession, or distribution of cigarettes in an amount equal to the rate of
four mills per cigarette.
The
moneys collected under this section shall be deposited in the water quality
account under RCW 70.146.030 through June 30, 2021, and in the general fund
thereafter.
Sec.
6. RCW
82.24.030 and 1990 c 216 s 1 are each amended to read as follows:
In
order to enforce collection of the tax hereby levied, the ((department of
revenue)) board shall design and have printed stamps of such size
and denominations as may be determined by the ((department)) board,
such stamps to be affixed on the smallest container or package that will be
handled, sold, used, consumed, or distributed, to permit the ((department))
board to readily ascertain by inspection, whether or not such tax has
been paid. Except as otherwise provided in this chapter, every person shall
cause to be affixed on every package of cigarettes, stamps of an amount
equaling the tax due thereon before he or she sells, offers for sale, uses,
consumes, handles, removes, or otherwise disturbs and distributes the same: PROVIDED,
That where it is established to the satisfaction of the ((department)) board
that it is impractical to affix such stamps to the smallest container or
package, the ((department)) board may authorize the affixing of
stamps of appropriate denomination to a large container or package.
The ((department))
board may authorize the use of meter stamping machines for imprinting
stamps, which imprinted stamps shall be in lieu of those otherwise provided for
under this chapter, and if such use is authorized, shall provide reasonable
rules ((and regulations)) with respect thereto.
Sec.
7. RCW
82.24.040 and 1990 c 216 s 2 are each amended to read as follows:
No
wholesaler in this state may possess within this state unstamped cigarettes
except that:
(1)
Every wholesaler in the state who is licensed under Washington state law may
possess within this state unstamped cigarettes for such period of time after
receipt as is reasonably necessary to affix the stamps as required; and
(2) Any
wholesaler in the state who is licensed under Washington state law and who
furnishes a surety bond in a sum satisfactory to the ((department)) board,
shall be permitted to set aside, without affixing the stamps required by this
chapter, such part of ((his)) the wholesaler's stock as may be
necessary for the conduct of ((his)) the wholesaler's business in
making sales to persons in another state or foreign country, to
instrumentalities of the federal government, or to the established governing
bodies of any Indian tribe, recognized as such by the United States Department
of the Interior. Such unstamped stock shall be kept separate and apart from
stamped stock.
(3)
Every wholesaler licensed under Washington state law shall, at the time of
shipping or delivering any of the articles taxed herein to a point outside of
this state, or to a federal instrumentality, or to an Indian tribal
organization, make a true duplicate invoice of the same which shall show full
and complete details of the sale or delivery, whether or not stamps were
affixed thereto, and shall transmit such true duplicate invoice to the main
office of the ((department)) board, at Olympia, not later than
the fifteenth day of the following calendar month, and for failure to comply
with the requirements of this section the ((department)) board
may revoke the permission granted to the taxpayer to maintain a stock of goods
to which the stamps required by this chapter have not been affixed. The ((department))
board may also revoke this permission to maintain a stock of unstamped
goods for sale to a specific Indian tribal organization when it appears that
sales of unstamped cigarettes to persons who are not enrolled members of a
recognized Indian tribe are taking place, or have taken place, within the
exterior boundaries of the reservation occupied by that tribe.
Sec.
8. RCW
82.24.050 and 1990 c 216 s 3 are each amended to read as follows:
((No))
Every retailer ((in this state may possess unstamped cigarettes
within this state unless the retailer is licensed under Washington state law
and, within a period of time after receipt of any of the articles taxed herein
as is reasonably necessary for the purpose, causes the same to have the
requisite denomination and amount of stamps affixed to represent the tax
imposed herein: PROVIDED, That those articles to which stamps have been
properly affixed by a wholesaler or another retailer, licensed under Washington
state law, may be retained by any retailer, and that those articles intended
for sale to qualified purchasers may, under rules adopted by the department of
revenue, be retained by federal instrumentalities and Indian tribal
organizations, without affixing the stamps required by this chapter)) shall
purchase cigarettes with the stamps affixed.
Sec.
9. RCW
82.24.070 and 1987 c 496 s 5 are each amended to read as follows:
Wholesalers
((and retailers)) subject to the provisions of this chapter shall be
allowed compensation for their services in affixing the stamps herein required
a sum computed at the rate of four dollars per one thousand stamps purchased or
affixed by them.
Sec.
10. RCW
82.24.090 and 1975 1st ex.s. c 278 s 62 are each amended to read as follows:
Every
wholesaler or retailer subject to the provisions of this chapter shall keep and
preserve for a period of five years an accurate set of records, showing all
transactions had with reference to the purchase and sale of any of the articles
taxed herein and such persons shall also keep separately all invoices, and
shall keep a record of all stamps purchased, and all such records and all stock
of taxable articles on hand shall be open to inspection at all reasonable times
by the ((department of revenue)) board or its duly authorized
agent.
All
wholesalers shall within fifteen days after the first day of each month file
with the ((department of revenue)) board a report of all drop
shipment sales made by them to retailers within this state during the preceding
month, which report shall show the name and address of the retailer to whom the
cigarettes were sold, the kind and quantity, and the date of delivery thereof.
Sec.
11. RCW
82.24.110 and 1990 c 216 s 4 are each amended to read as follows:
(1)
Each of the following acts is a gross misdemeanor and punishable as such:
(a) To
sell, except as a licensed wholesaler or licensed retailer engaged in
interstate commerce as to the article being taxed herein, without the stamp
first being affixed;
(b) To
use or have in possession knowingly or intentionally any forged or counterfeit
stamps;
(c)
For any person other than the ((department of revenue)) board or
its duly authorized agent to sell any stamps not affixed to any of the articles
taxed herein whether such stamps are genuine or counterfeit;
(d) To
violate any of the provisions of this chapter;
(e) To
violate any lawful rule ((or regulation)) made and published by the ((department
of revenue)) board;
(f) To
use any stamps more than once;
(g) To
refuse to allow the ((department of revenue)) board or any duly
authorized agent thereof, on demand, to make full inspection of any place of
business where any of the articles herein taxed are sold or otherwise hinder or
prevent such inspection;
(h)
For any retailer((, except one permitted to maintain an unstamped stock to
engage in interstate business as provided herein,)) to have in possession
in any place of business any of the articles herein taxed, unless the same have
the proper stamps attached;
(i)
For any person to make, use, or present or exhibit to the ((department of
revenue)) board or any duly authorized agent thereof, any invoice
for any of the articles herein taxed which bears an untrue date or falsely
states the nature or quantity of the goods therein invoiced;
(j)
For any wholesaler or retailer or ((his or her)) its agents or
employees to fail to produce on demand of the ((department of revenue)) board
all invoices of all the articles herein taxed or stamps bought ((by him or
her)) or received in ((his or her)) its place of business
within five years prior to such demand unless ((he or she)) the
wholesaler or retailer can show by satisfactory proof that the
nonproduction of the invoices was due to causes beyond ((his)) its
control;
(k)
For any person to receive in this state any shipment of any of the articles
taxed herein, when the same are not stamped, are untaxed, or are untaxed and
stamped for the purpose of avoiding payment of tax. It is presumed that
persons other than dealers who purchase or receive shipments of unstamped,
untaxed, or untaxed stamped cigarettes do so to avoid payment of the tax
imposed herein;
(l)
For any person to possess or transport upon the public highways, roads, or
streets of this state a quantity of sixty thousand cigarettes or less ((unless
the proper stamps required by this chapter have been affixed)) that are
unstamped, untaxed, or untaxed stamped cigarettes or unless the person
transporting the cigarettes has in actual possession invoices or delivery
tickets therefor which show the true name and address of the consignor or
seller, the true name of the consignee or purchaser, and the quantity and
brands of the cigarettes so transported and unless the cigarettes are consigned
to or purchased by any person in this state who is a purchaser or consignee
authorized by this chapter to possess unstamped, untaxed, or untaxed stamped
cigarettes in this state.
(2) It
is unlawful for any person knowingly or intentionally to possess or to
transport upon the public highways, roads, or streets of this state a quantity
in excess of sixty thousand cigarettes ((unless the proper stamps required
by this chapter are affixed thereto or)) that are unstamped, untaxed, or
untaxed stamped cigarettes unless the person transporting the cigarettes
actually possesses invoices or delivery tickets showing the true name and
address of the consignor or seller, the true name of the consignee or
purchaser, and the quantity and brands of the cigarettes so transported.
Violation of this section shall be punished as a class C felony under Title 9A
RCW.
(3)
All agents, employees, and others who aid, abet, or otherwise participate in
any way in the violation of the provisions of this chapter or in any of the
offenses described in this chapter shall be guilty and punishable as
principals, to the same extent as any wholesaler or retailer or any other
person violating the provisions thereof.
Sec.
12. RCW
82.24.120 and 1990 c 267 s 1 are each amended to read as follows:
If any
person, subject to the provisions of this chapter or any rules ((and
regulations)) promulgated by the ((department of revenue)) board
under authority hereof, is found to have failed to affix the stamps required,
or to have them affixed as herein provided, or to pay any tax due hereunder, or
to have violated any of the provisions of this chapter or rules ((and
regulations)) promulgated by the ((department of revenue)) board
in the administration hereof, there shall be assessed and collected from such person,
in addition to any tax that may be found due, a penalty equal to the greater of
ten dollars per package of unstamped cigarettes or two hundred fifty dollars,
plus interest thereon at the rate of one percent for each thirty days or
portions thereof from the date the tax became due, and upon notice mailed to
the last known address of the person said amount shall become due and payable
in ten days, at which time the ((department)) board or its duly
authorized agent may make immediate demand upon such person for the payment of
all such taxes and penalties. The ((department)) board, for good
reason shown, may remit all or any part of penalties imposed, but the taxpayer
must pay all taxes due and interest thereon, at the rate of one percent for
each thirty days or portion thereof. The keeping of any unstamped, untaxed,
or untaxed stamped articles coming within the provisions of this chapter
shall be prima facie evidence of intent to violate the provisions of this
chapter.
Sec.
13. RCW
82.24.130 and 1990 c 216 s 5 are each amended to read as follows:
(1)
The following are subject to seizure and forfeiture:
(a)
Subject to RCW 82.24.250, any articles taxed in this chapter that are found at
any point within this state, which articles are held, owned, or possessed by
any person, and that ((do not have the stamps affixed to the packages or
containers)) are unstamped, untaxed, or untaxed and stamped.
(b)
All conveyances, including aircraft, vehicles, or vessels, which are used, or intended
for use, to transport, or in any manner to facilitate the transportation, for
the purpose of sale or receipt of property described in (a) of this subsection,
except:
(i) A
conveyance used by any person as a common or contract carrier having in actual
possession invoices or delivery tickets showing the true name and address of
the consignor or seller, the true name of the consignee or purchaser, and the
quantity and brands of the cigarettes transported, unless it appears that the
owner or other person in charge of the conveyance is a consenting party or
privy to a violation of this chapter;
(ii) A
conveyance subject to forfeiture under this section by reason of any act or
omission of which the owner thereof establishes to have been committed or omitted
without his or her knowledge or consent;
(iii)
A conveyance encumbered by a bona fide security interest if the secured party
neither had knowledge of nor consented to the act or omission.
(c)
Any vending machine used for the purpose of violating the provisions of this
chapter.
(2)
Property subject to forfeiture under this chapter may be seized by any agent of
the ((department)) board authorized to collect taxes or law
enforcement officer of this state upon process issued by any superior court or
district court having jurisdiction over the property. Seizure without process
may be made if:
(a)
The seizure is incident to an arrest or a search under a search warrant or an
inspection under an administrative inspection warrant; or
(b)
The ((department)) board or law enforcement officer has probable
cause to believe that the property was used or is intended to be used in
violation of this chapter and exigent circumstances exist making procurement of
a search warrant impracticable.
(3)
Notwithstanding the foregoing provisions of this section, articles taxed in
this chapter which are in the possession of a wholesaler ((or retailer)),
licensed under Washington state law, for a period of time necessary to affix
the stamps after receipt of the articles, shall not be considered contraband.
Sec.
14. RCW
82.24.135 and 1987 c 496 s 3 are each amended to read as follows:
In all
cases of seizure of any property made subject to forfeiture under this chapter
the ((department)) board shall proceed as follows:
(1)
Forfeiture shall be deemed to have commenced by the seizure. Notice of seizure
shall be given to the ((department)) board immediately if the
seizure is made by someone other than an agent of the ((department)) board
authorized to collect taxes.
(2)
Upon notification or seizure by the ((department)) board or upon
receipt of property subject to forfeiture under this chapter from any other
person, the ((department)) board shall list and particularly
describe the property seized in duplicate and have the property appraised by a
qualified person not employed by the ((department)) board or
acting as its agent. Listing and appraisement of the property shall be
properly attested by the ((department)) board and the appraiser,
who shall be allowed a reasonable appraisal fee. No appraisal is required if
the property seized is judged by the ((department)) board to be
less than one hundred dollars in value.
(3)
The ((department)) board shall cause notice to be served within
five days following the seizure or notification to the ((department)) board
of the seizure on the owner of the property seized, if known, on the person in
charge thereof, and on any other person having any known right or interest
therein, of the seizure and intended forfeiture of the seized property. The
notice may be served by any method authorized by law or court rule including
but not limited to service by mail. If service is by mail it shall be by both
certified mail with return receipt requested and regular mail. Service by mail
shall be deemed complete upon mailing within the five-day period following the
seizure or notification of the seizure to the ((department)) board.
(4) If
no person notifies the ((department)) board in writing of the
person's claim of ownership or right to possession of the items seized within
fifteen days of the date of the notice of seizure, the item seized shall be
considered forfeited.
(5) If
any person notifies the ((department)) board, in writing, of the
person's claim of ownership or right to possession of the items seized within
fifteen days of the date of the notice of seizure, the person or persons shall
be afforded a reasonable opportunity to be heard as to the claim or right. The
hearing shall be before the ((director)) board or the ((director's))
board's designee, except that any person asserting a claim or right may
bring an action for return of the seized items in the superior court of the
county in which such property was seized, if the aggregate value of the article
or articles involved is more than five hundred dollars. A hearing before the
seizing agency and any appeal therefrom shall be in accordance with chapter
34.05 RCW. The burden of proof by a preponderance of the evidence shall be
upon the person claiming to be the lawful owner or the person claiming to have
the lawful right to possession of the items seized. The ((department)) board
shall promptly return the article or articles to the claimant upon a
determination that the claimant is the present lawful owner or is lawfully
entitled to possession thereof of the items seized.
Sec.
15. RCW
82.24.145 and 1987 c 496 s 4 are each amended to read as follows:
When
property is forfeited under this chapter the ((department)) board
may:
(1)
Retain the property or any part thereof for official use or upon application by
any law enforcement agency of this state, another state, or the District of
Columbia, or of the United States for the exclusive use of enforcing the
provisions of this chapter or the laws of any other state or the District of
Columbia or of the United States.
(2)
Sell the property at public auction to the highest bidder after due
advertisement, but the ((department)) board before delivering any
of the goods so seized shall require the person to whom the property is sold to
affix the proper amount of stamps. The proceeds of the sale and all moneys
forfeited under this chapter shall be first applied to the payment of all
proper expenses of any investigation leading to the seizure and of the
proceedings for forfeiture and sale, including expenses of seizure, maintenance
of custody, advertising, and court costs. The balance of the proceeds and all
moneys shall be deposited in the general fund of the state. Proper expenses of
investigation includes costs incurred by any law enforcement agency or any
federal, state, or local agency.
Sec.
16. RCW
82.24.180 and 1990 c 267 s 2 are each amended to read as follows:
The ((department
of revenue)) board may return any property seized under the
provisions of this chapter when it is shown that there was no intention to
violate the provisions thereof.
When
any property is returned under this section, the ((department)) board
may return such goods to the parties from whom they were seized if and when
such parties affix the proper amount of stamps thereto, and pay to the ((department))
board as penalty an amount equal to the greater of ten dollars per
package of unstamped cigarettes or two hundred fifty dollars, and interest
thereon at the rate of one percent for each thirty days or portion thereof from
the date the tax became due, and in such cases, no advertisement shall be made
or notices posted in connection with said seizure.
Sec.
17. RCW
82.24.190 and 1987 c 202 s 244 are each amended to read as follows:
When
the ((department of revenue)) board has good reason to believe
that any of the articles taxed herein are being kept, sold, offered for sale,
or given away in violation of the provisions of this chapter or ((regulations))
rules issued under authority hereof, it may make affidavit of such fact,
describing the place or thing to be searched, before any judge of any court in
this state, and such judge shall issue a search warrant directed to the
sheriff, any deputy, police officer, or duly authorized agent of the ((department
of revenue)) board commanding him or her diligently to search any
building, room in a building, place, or vehicle as may be designated in
the affidavit and search warrant, and to seize such tobacco so possessed and to
hold the same until disposed of by law, and to arrest the person in possession
or control thereof. If upon the return of such warrant, it shall appear that
any of the articles taxed herein, unlawfully possessed, were seized, the same
shall be sold as provided in this chapter.
Sec.
18. RCW
82.24.210 and 1975 1st ex.s. c 278 s 68 are each amended to read as follows:
The ((department
of revenue)) board may promulgate rules ((and regulations))
providing for the refund to dealers for the cost of stamps affixed to articles
taxed herein, which by reason of damage become unfit for sale and are destroyed
by the dealer or returned to the manufacturer or jobber. In the case of any
articles to which stamps have been affixed, and which articles have been sold
and shipped to a regular dealer in such articles in another state, the seller
in this state shall be entitled to a refund of the actual amount of the stamps
so affixed, less the affixing discount, upon condition that the seller in this
state makes affidavit that the articles were sold and shipped outside of the
state and that ((he)) the seller has received from the purchaser
outside the state a written acknowledgment that ((he)) the purchaser
has received such articles with the amount of stamps affixed thereto, together
with the name and address of such purchaser. The ((department of revenue))
board may redeem any unused stamps purchased from it at the face value
thereof less the affixing discount.
Sec.
19. RCW
82.24.230 and 1961 c 15 s 82.24.230 are each amended to read as follows:
All of
the provisions contained in chapter 82.32 RCW except RCW 82.32.050,
82.32.060, 82.32.070, 82.32.100, and 82.32.270 shall have full force and
application with respect to taxes imposed under the provisions of this
chapter((, except the following sections thereof: RCW 82.32.050, 82.32.060,
82.32.070, 82.32.100 and 82.32.270)); except that "department of
revenue" or "department" means the liquor control board.
Sec.
20. RCW
82.24.250 and 1990 c 216 s 6 are each amended to read as follows:
No
person other than (1) a licensed wholesaler in its own vehicle, or (2) a person
who has given notice to the ((department)) board in advance of
the commencement of transportation shall transport or cause to be transported unstamped,
untaxed, or untaxed stamped cigarettes ((not having the stamps affixed
to the packages or containers)), upon the public highways, roads, or
streets of this state. In the case of transportation of unstamped cigarettes
such persons shall have in their actual possession invoices or delivery tickets
for such cigarettes, which shall show the true name and address of the
consignor or seller, the true name of the consignee or purchaser, and the
quantity and brands of the cigarettes so transported. If the cigarettes are
consigned to or purchased by any person in this state such purchaser or
consignee must be a person who is authorized by chapter 82.24 RCW to possess
unstamped, untaxed, or untaxed stamped cigarettes in this state. In the
absence of such invoices or delivery tickets, or, if the name or address of the
consignee or purchaser is falsified or if the purchaser or consignee is not
authorized by chapter 82.24 RCW to possess unstamped, untaxed, or untaxed
stamped cigarettes, the cigarettes so transported shall be deemed
contraband subject to seizure and sale under the provisions of RCW 82.24.130.
Transportation
of cigarettes from a point outside this state to a point in some other state
will not be considered a violation of this section provided that the person so
transporting such cigarettes has in his or her possession adequate
invoices or delivery tickets which give the true name and address of such
out-of-state seller or consignor and such out-of-state purchaser or consignee.
In any
case where the ((department)) board or its duly authorized agent,
or any peace officer of the state, has knowledge or reasonable grounds to
believe that any vehicle is transporting cigarettes in violation of this
section, the ((department)) board, such agent, or such police
officer, is authorized to stop such vehicle and to inspect the same for
contraband cigarettes.
For
purposes of this section, the term "person authorized by chapter 82.24 RCW
to possess unstamped, untaxed, or untaxed stamped cigarettes" shall
mean a wholesaler or retailer, licensed under Washington state law, the United
States or an agency thereof, and any Indian tribal organization authorized
under rules adopted by the ((department of revenue)) board to
possess ((unstamped cigarettes)) these articles.
Sec.
21. RCW
82.24.510 and 1986 c 321 s 5 are each amended to read as follows:
(1)
The licenses issuable under this chapter are as follows:
(a) A
wholesaler's license.
(b) A
retailer's license.
(c)
A vending machine license.
(2)
Application for the licenses shall be made through the master license system
under chapter 19.02 RCW. The ((department of revenue)) board
shall adopt rules regarding the regulation of the licenses. The ((department
of revenue)) board may refrain from the issuance of any license
under this chapter if the ((department)) board has reasonable
cause to believe that the applicant has willfully withheld information
requested for the purpose of determining the eligibility of the applicant to
receive a license, or if the ((department)) board has reasonable
cause to believe that information submitted in the application is false or
misleading or is not made in good faith. Each such license shall expire on the
master license expiration date, and each such license shall be continued
annually if the licensee has paid the required fee and complied with all the
provisions of this chapter and the rules of the ((department of revenue))
board made pursuant thereto.
Sec.
22. RCW
82.24.520 and 1986 c 321 s 6 are each amended to read as follows:
A fee
of six hundred fifty dollars shall accompany each wholesaler's license
application or license renewal application. If a wholesaler sells or intends
to sell cigarettes at two or more places of business, whether established or
temporary, a separate license with a license fee of one hundred fifteen dollars
shall be required for each additional place of business. Each license, or
certificate thereof, and such other evidence of license as the ((department
of revenue)) board requires, shall be exhibited in the place of
business for which it is issued and in such manner as is prescribed for the
display of a master license. The ((department of revenue)) board
shall require each licensed wholesaler to file with the ((department)) board
a bond in an amount not less than ((one)) five thousand dollars
to guarantee the proper performance of the duties and the discharge of the
liabilities under this chapter. The bond shall be executed by such licensed
wholesaler as principal, and by a corporation approved by the ((department
of revenue)) board and authorized to engage in business as a surety
company in this state, as surety. The bond shall run concurrently with the
wholesaler's license.
Sec.
23. RCW
82.24.550 and 1986 c 321 s 9 are each amended to read as follows:
(1)
The ((department of revenue)) board shall enforce the provisions
of this chapter. The ((department of revenue)) board may adopt,
amend, and repeal rules necessary to enforce and administer the provisions of
this chapter. The ((department of revenue)) board has full power
and authority to revoke or suspend the license or permit of any wholesale or
retail cigarette dealer in the state upon sufficient cause appearing of the
violation of this chapter or upon the failure of such licensee to comply with
any of the provisions of this chapter.
(2) A
license shall not be suspended or revoked except upon notice to the licensee
and after a hearing as prescribed by the ((department of revenue)) board.
The ((department of revenue)) board, upon a finding by same, that
the licensee has failed to comply with any provision of this chapter or any
rule promulgated thereunder, shall, in the case of the first offender, suspend
the license or licenses of the licensee for a period of not less than thirty
consecutive business days, and, in the case of a second or plural offender,
shall suspend the license or licenses for a period of not less than ninety
consecutive business days nor more than twelve months, and, in the event the ((department
of revenue)) board finds the offender has been guilty of willful
and persistent violations, it may revoke the license or licenses.
(3)
Any person whose license or licenses have been so revoked may apply to the ((department
of revenue)) board at the expiration of one year for a reinstatement
of the license or licenses. The license or licenses may be reinstated by the
((department of revenue)) board if it appears to the satisfaction
of the ((department of revenue)) board that the licensee will
comply with the provisions of this chapter and the rules promulgated
thereunder.
(4) A
person whose license has been suspended or revoked shall not sell cigarettes or
permit cigarettes to be sold during the period of such suspension or revocation
on the premises occupied by the person or upon other premises controlled by the
person or others or in any other manner or form whatever.
(5)
Any determination and order by the ((department of revenue)) board,
and any order of suspension or revocation by the ((department of revenue))
board of the license or licenses, or refusal to reinstate a license or
licenses after revocation shall be reviewable by an appeal to the superior
court of Thurston county. The superior court shall review the order or ruling
of the ((department of revenue)) board and may hear the matter de
novo, having due regard to the provisions of this chapter and the duties
imposed upon the ((department of revenue)) board.
Sec.
24. RCW
82.24.560 and 1986 c 321 s 10 are each amended to read as follows:
All
fees and penalties received or collected by the ((department of revenue))
board pursuant to this chapter shall be paid to the state treasurer, to
be credited to the general fund.
NEW
SECTION. Sec. 25. A new
section is added to chapter 82.24 RCW to read as follows:
The
board may adopt rules to implement this chapter.
Sec.
26. RCW
82.26.010 and 1975 1st ex.s. c 278 s 70 are each amended to read as follows:
As
used in this chapter:
(1)
"Tobacco products" means cigars, cheroots, stogies, periques,
granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco,
snuff, snuff flour, cavendish, plug and twist tobacco, fine-cut and other
chewing tobaccos, shorts, refuse scraps, clippings, cuttings, and
sweepings of tobacco, and other kinds and forms of tobacco, prepared in such
manner as to be suitable for chewing or smoking in a pipe or otherwise, or both
for chewing and smoking, but shall not include cigarettes as defined in RCW
82.24.010(((4)));
(2)
"Manufacturer" means a person who manufactures and sells tobacco
products;
(3)
"Distributor" means (a) any person engaged in the business of selling
tobacco products in this state who brings, or causes to be brought, into this
state from without the state any tobacco products for sale, (b) any person who
makes, manufactures, or fabricates tobacco products in this state for sale in
this state, (c) any person engaged in the business of selling tobacco products
without this state who ships or transports tobacco products to retailers in
this state, to be sold by those retailers;
(4) "Subjobber"
means any person, other than a manufacturer or distributor, who buys tobacco
products from a distributor and sells them to persons other than the ultimate
consumers;
(5)
"Retailer" means any person engaged in the business of selling
tobacco products to ultimate consumers;
(6)
"Sale" means any transfer, exchange, or barter, in any manner or by
any means whatsoever, for a consideration, and includes and means all sales
made by any person. It includes a gift by a person engaged in the business of
selling tobacco products, for advertising, as a means of evading the provisions
of this chapter, or for any other purposes whatsoever.
(7)
"Wholesale sales price" means the established price for which a
manufacturer sells a tobacco product to a distributor, exclusive of any
discount or other reduction;
(8)
"Business" means any trade, occupation, activity, or enterprise
engaged in for the purpose of selling or distributing tobacco products in this
state;
(9)
"Place of business" means any place where tobacco products are sold
or where tobacco products are manufactured, stored, or kept for the purpose of
sale or consumption, including any vessel, vehicle, airplane, train, or vending
machine;
(10)
"Retail outlet" means each place of business from which tobacco
products are sold to consumers;
(11)
(("Department" means the state department of revenue)) "Board"
means the liquor control board.
Sec.
27. RCW
82.26.050 and 1975 1st ex.s. c 278 s 72 are each amended to read as follows:
((From
and after July 1, 1959)) No person shall engage in the business of a
distributor or subjobber of tobacco products at any place of business without
first having received from the ((department of revenue)) board a
certificate of registration ((as provided in RCW 82.32.030)).
Sec.
28. RCW
82.26.060 and 1975 1st ex.s. c 278 s 73 are each amended to read as follows:
Every
distributor shall keep at each registered place of business complete and
accurate records for that place of business, including itemized invoices, of
tobacco products held, purchased, manufactured, brought in or caused to be
brought in from without the state, or shipped or transported to retailers in
this state, and of all sales of tobacco products made, except sales to the
ultimate consumer.
These
records shall show the names and addresses of purchasers((, the inventory of
all tobacco products on hand on July 1, 1959,)) and other pertinent papers
and documents relating to the purchase, sale, or disposition of tobacco
products.
When a
registered distributor sells tobacco products exclusively to the ultimate
consumer at the address given in the certificate, no invoice of those sales
shall be required, but itemized invoices shall be made of all tobacco products
transferred to other retail outlets owned or controlled by that registered
distributor. All books, records, and other papers and documents required by
this section to be kept shall be preserved for a period of at least five years
after the date of the documents, as aforesaid, or the date of the entries
thereof appearing in the records, unless the ((department of revenue)) board,
in writing, authorizes their destruction or disposal at an earlier date. At
any time during usual business hours the ((department)) board, or
its duly authorized agents or employees, may enter any place of business of a
distributor, without a search warrant, and inspect the premises, the records
required to be kept under this chapter, and the tobacco products contained therein,
to determine whether or not all the provisions of this chapter are being fully
complied with. If the ((department)) board, or any of its agents
or employees, are denied free access or are hindered or interfered with in
making such examination, the registration certificate of the distributor at
such premises shall be subject to revocation by the ((department)) board.
Sec.
29. RCW
82.26.080 and 1975 1st ex.s. c 278 s 74 are each amended to read as follows:
Every
retailer and subjobber shall procure itemized invoices of all tobacco products
purchased. The invoices shall show the name and address of the seller and the
date of purchase. The retailer and subjobber shall preserve a legible copy of
each such invoice for five years from the date of purchase. Invoices shall be
available for inspection by the ((department of revenue)) board
or its authorized agents or employees at the retailer's or subjobber's place of
business.
Sec.
30. RCW
82.26.090 and 1975 1st ex.s. c 278 s 75 are each amended to read as follows:
Records
of all deliveries or shipments of tobacco products from any public warehouse of
first destination in this state shall be kept by the warehouse and be available
to the ((department of revenue)) board for inspection. They
shall show the name and address of the consignee, the date, the quantity of
tobacco products delivered, and such other information as the ((department))
board may require. These records shall be preserved for five years from
the date of delivery of the tobacco products.
Sec.
31. RCW
82.26.110 and 1975 1st ex.s. c 278 s 76 are each amended to read as follows:
Where
tobacco products upon which the tax imposed by this chapter has been reported
and paid, are shipped or transported by the distributor to retailers without
the state, to be sold by those retailers, or are returned to the manufacturer
by the distributor or destroyed by the distributor, credit of such tax may be
made to the distributor in accordance with ((regulations)) rules
prescribed by the ((department of revenue)) board.
Sec.
32. RCW
82.26.120 and 1963 ex.s. c 28 s 5 are each amended to read as follows:
All of
the provisions contained in chapter 82.32 RCW shall have full force and
application with respect to taxes imposed under the provisions of this chapter;
except that "department of revenue" or "department" means
the liquor control board.
NEW
SECTION. Sec. 33. A new
section is added to chapter 82.26 RCW to read as follows:
The
board may adopt rules to implement this chapter.
NEW
SECTION. Sec. 34. A new
section is added to chapter 82.32 RCW to read as follows:
The
liquor control board may contract with the department for the collection of
taxes, penalties, and interest, and the making of refunds, related to the administration
and enforcement of chapters 82.24 and 82.26 RCW.
NEW
SECTION. Sec. 35. All
powers, duties, and functions of the department of revenue pertaining to
chapters 82.24 and 82.26 RCW are transferred to the liquor control board. All
references to the director or department of revenue in the Revised Code of
Washington shall be construed to mean the liquor control board when referring
to the functions transferred in this section.
NEW
SECTION. Sec. 36. All
reports, documents, surveys, books, records, files, papers, or written material
in the possession of the department of revenue pertaining to the powers,
functions, and duties transferred shall be delivered to the custody of the
liquor control board. All cabinets, furniture, office equipment, motor
vehicles, and other tangible property employed by the department of revenue in
carrying out the powers, functions, and duties transferred shall be made
available to the liquor control board. All funds, credits, or other assets
held in connection with the powers, functions, and duties transferred shall be
assigned to the liquor control board.
Any
appropriations made to the department of revenue for carrying out the powers,
functions, and duties transferred shall, on the effective date of this section,
be transferred and credited to the liquor control board.
Whenever
any question arises as to the transfer of any personnel, funds, books,
documents, records, papers, files, equipment, or other tangible property used
or held in the exercise of the powers and the performance of the duties and
functions transferred, the director of financial management shall make a
determination as to the proper allocation and certify the same to the state
agencies concerned.
NEW
SECTION. Sec. 37. All
employees of the department of revenue engaged in performing the powers,
functions, and duties transferred are transferred to the jurisdiction of the
liquor control board. All employees classified under chapter 41.06 RCW, the
state civil service law, are assigned to the liquor control board to perform
their usual duties upon the same terms as formerly, without any loss of rights,
subject to any action that may be appropriate thereafter in accordance with the
laws and rules governing state civil service.
NEW
SECTION. Sec. 38. All
rules and all pending business before the department of revenue pertaining to
the powers, functions, and duties transferred shall be continued and acted upon
by the liquor control board. All existing contracts and obligations shall
remain in full force and shall be performed by the liquor control board.
NEW
SECTION. Sec. 39. The
transfer of the powers, duties, functions, and personnel of the department of
revenue shall not affect the validity of any act performed prior to the
effective date of this section.
NEW
SECTION. Sec. 40. If
apportionments of budgeted funds are required because of the transfers directed
by sections 36 through 39 of this act, the director of financial management
shall certify the apportionments to the agencies affected, the state auditor,
and the state treasurer. Each of these shall make the appropriate transfer and
adjustments in funds and appropriation accounts and equipment records in
accordance with the certification.
NEW
SECTION. Sec. 41. Nothing
contained in sections 36 through 41 of this act may be construed to alter any
existing collective bargaining unit or the provisions of any existing
collective bargaining agreement until the agreement has expired or until the
bargaining unit has been modified by action of the personnel board as provided
by law.
NEW
SECTION. Sec. 42. RCW
82.24.260 and 1987 c 80 s 3 & 1986 c 3 s 13 are each repealed.
NEW
SECTION. Sec. 43. If any
provision of this act or its application to any person or circumstance is held
invalid, the remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW
SECTION. Sec. 44. This
act is necessary for the immediate preservation of the public peace, health, or
safety, or support of the state government and its existing public
institutions, and shall take effect July 1, 1991.
