5621-S

AN ACT Relating to access to tobacco; amending RCW 82.24.520, 82.24.530, 82.24.550, and 82.24.560; reenacting and amending RCW 26.28.080; adding a new section to chapter 43.70 RCW; adding a new chapter to Title 70 RCW; creating new sections; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that the leading cause of preventable death is tobacco use. Further, the legislature recognizes the high rate of smoking prevalence by youth and young pregnant women in our state. The vast majority of new smokers are teenagers or younger children. The earlier a child starts using tobacco the more likely that he or she will be unable to quit. By the time Washington state youth become high school seniors, one out of every four is an addicted smoker. The legislature finds that youth obtain tobacco products with ease. Washington state has no organized effort to prevent children from purchasing tobacco products. Tobacco products that are provided free or at nominal charge are likely to fall into the hands of youth, and the sale of single cigarettes are more affordable to youth. It is imperative to effectively enforce the prohibition of sales to minors.

NEW SECTION. Sec. 2. (1) The definitions set forth in RCW 82.24.010 shall apply to sections 3 through 13 of this act, except that "department" refers to the Washington state department of health.

(2) "Minor" as used in sections 3 through 13 of this act refers to an individual who is less than eighteen years old.

NEW SECTION. Sec. 3. A person who holds a license issued under RCW 82.24.520 or 82.24.530 shall:

(1) Display the license or a copy in a prominent location at the outlet for which the license is issued; and

(2) Display a sign concerning the prohibition of tobacco sales to minors.

Such sign shall:

(a) Be posted so that it is clearly visible to anyone purchasing tobacco products from the licensee;

(b) Be designed and produced by the department of health to read: "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER AGE 18 IS STRICTLY PROHIBITED BY STATE LAW, PHOTO ID REQUIRED"; and

NEW SECTION. Sec. 4. No person shall sell or permit to be sold any tobacco product through any device that mechanically dispenses tobacco products unless the device is located fully within premises from which minors are prohibited or in industrial worksites where minors are not employed and not less than ten feet from all entrance or exit ways to and from each premises.

NEW SECTION. Sec. 5. A person under the age of eighteen who purchases or attempts to purchase cigarettes or tobacco products is subject to a civil penalty not to exceed one hundred dollars. This provision does not apply when a person under the age of eighteen is participating in a controlled purchase as part of law enforcement activities.

NEW SECTION. Sec. 6. No person shall sell or permit to be sold any tobacco product not in the original unopened package or container to which the stamps required by RCW 82.24.060 have been affixed.

This section does not apply to the sale of loose leaf tobacco by a retail business that generates a minimum of sixty percent of annual gross sales from the sale of tobacco products.

NEW SECTION. Sec. 7. No retailer, wholesaler, tobacco manufacturer, or agent thereof, shall give or distribute cigarettes or other tobacco products to any person at no cost.

NEW SECTION. Sec. 8. No person shall give or distribute cigarettes or other tobacco products to a person at a reduced price by a coupon if such coupon is redeemed in any manner that does not require an in-person transaction between a buyer and seller.

NEW SECTION. Sec. 9. (1) Where there may be a question of a person's right to purchase tobacco products by reason of age, the retailer, or agent thereof, shall require the purchaser to present any one of the following officially issued identification that shows the purchaser's age and bears his or her signature and photograph: Liquor control authority card of identification of a state or province of Canada; driver's license, instruction permit, or identification card of a state or province of Canada; "identicard" issued by the Washington state department of licensing under chapter 46.20 RCW; United States military identification; passport; or merchant marine identification card issued by the United States coast guard.

(2) It is a defense to a prosecution under RCW 26.28.080(4) that the person making a sale reasonably relied on any of the officially issued identification as defined in subsection (1) of this section.

NEW SECTION. Sec. 10. (1) The liquor control board may suspend or revoke a retailer's license under chapter 82.24 RCW or a license under chapter 66.24 RCW held by a business at any location, or may impose a monetary penalty as set forth in subsection (2) of this section, if the liquor control board finds that the licensee has violated RCW 26.28.080(4), or section 3, 4, 6, 7, or 8 of this act.

(2) The sanctions that the liquor control board may impose against a person licensed under RCW 82.24.530 based upon one or more findings under section 1 of this act may not exceed the following:

(a) For violation of RCW 26.28.080(4) or section 3 of this act:

(i) A monetary penalty of one hundred dollars for the first violation within any two-year period;

(ii) A monetary penalty of three hundred dollars for the second violation within any two-year period;

(iii) A monetary penalty of one thousand dollars and suspension of the license for a period of six months for the third violation within any two-year period;

(iv) A monetary penalty of one thousand five hundred dollars and suspension of the license for a period of twelve months for the fourth violation within any two-year period;

(v) Revocation of the license with no possibility of reinstatement for a period of five years for the fifth or more violation within any two-year period;

(b) For violations of section 4 of this act, a monetary penalty in the amount of one hundred dollars for each day upon which such violation occurred;

(i) A monetary penalty of one hundred dollars for the first violation within any two-year period;

(ii) A monetary penalty of three hundred dollars for the second violation within any two-year period;

(iii) A monetary penalty of one thousand dollars and suspension of the license for a period of six months for the third violation within any two-year period;

(iv) A monetary penalty of one thousand five hundred dollars and suspension of the license for a period of twelve months for the fourth violation within any two-year period;

(v) Revocation of the license with no possibility of reinstatement for a period of five years for the fifth or more violation within any two-year period;

(d) For violations of section 7 of this act, a monetary penalty in the amount of three hundred dollars for each violation;

(e) For violations of section 8 of this act, a monetary penalty in the amount of one thousand dollars for each violation.

(3) The liquor control board may impose a monetary penalty upon any person other than a licensed cigarette retailer if the liquor control board finds that the person has violated RCW 26.28.080(4), or section 3, 4, 6, 7, or 8 of this act.

(4) The monetary penalty that the liquor control board may impose based upon one or more findings under subsection (3) of this section may not exceed the following:

(a) For violation of RCW 26.28.080(4) or section 3 of this act, one hundred dollars for each violation;

(b) For violations of section 4 of this act, one hundred dollars for each day upon which such violation occurred;

(d) For violations of section 7 of this act, three hundred dollars for each violation;

(e) For violations of section 8 of this act, one thousand dollars for each violation.

(5) The liquor control board may issue a cease and desist order to any person who is found by the liquor control board to have violated or intending to violate the provisions of this chapter, RCW 26.28.080(4) or 82.24.500, requiring such person to cease specified conduct that is in violation. The issuance of a cease and desist order shall not preclude the imposition of other sanctions authorized by this statute or any other provision of law.

(6) The liquor control board may seek injunctive relief to enforce the provisions of RCW 26.28.080(4) or 82.24.500 or this chapter. The liquor control board may initiate legal action to collect civil penalties imposed under this chapter if the same have not been paid within thirty days after imposition of such penalties. In any action filed by the liquor control board under this chapter, the court may, in addition to any other relief, award the liquor control board reasonable attorneys' fees and costs.

(7) All proceedings under subsections (1) through (5) of this section shall be conducted in accordance with chapter 34.05 RCW.

NEW SECTION. Sec. 11. (1) The liquor control board shall, in addition to the board's other powers and authorities, have the authority to enforce the provisions of this chapter and RCW 26.28.080(4) and 82.24.500. The liquor control board shall have full power to revoke or suspend the license of any retailer or wholesaler in accordance with the provisions of section 10 of this act.

(2) The liquor control board and the board's authorized agents or employees shall have full power and authority to enter any place of business where tobacco products are sold for the purpose of enforcing the provisions of this chapter.

(3) For the purpose of enforcing the provisions of this chapter and RCW 26.28.080(4) and 82.24.500, a peace officer or enforcement officer of the liquor control board who has reasonable grounds to believe a person observed by the officer purchasing, attempting to purchase, or in possession of tobacco products is under the age of eighteen years of age, may detain such person for a reasonable period of time and in such a reasonable manner as is necessary to determine the person's true identity and date of birth. Further, tobacco products possessed by persons under the age of eighteen years of age are considered contraband and may be seized by a peace officer or enforcement officer of the liquor control board.

(4) The liquor control board may work with local county health departments and local law enforcement agencies to conduct unannounced, random stings.

NEW SECTION. Sec. 12. (1) The youth tobacco prevention account is created in the state treasury. All fees collected pursuant to RCW 82.24.520 and 82.24.530 and funds collected by the liquor control board from the imposition of monetary penalties shall be deposited into this account.

(2) Moneys appropriated from the youth tobacco prevention account to the department of health shall be used by the department of health for implementation of this chapter, including collection and reporting of data regarding enforcement and the extent to which access to tobacco products by youth has been reduced.

(3) The department shall enter into interagency agreements with the liquor control board to pay the costs incurred, up to thirty percent of available funds, in carrying out its enforcement responsibilities under this chapter. Such agreements shall set forth standards of enforcement, consistent with the funding available, so as to reduce the extent to which tobacco products are available to individuals under the age of eighteen. The agreements shall also set forth requirements for data reporting by the liquor control board regarding its enforcement activities.

(4) The department of health and the department of revenue shall enter into an interagency agreement for payment of the cost of administering the tobacco retailer licensing system and for the provision of quarterly documentation of tobacco wholesaler, retailer, and vending machine names and locations.

(5) The department of health shall, within up to seventy percent of available funds, provide grants to local health departments or other local community agencies to develop and implement coordinated tobacco intervention strategies to prevent and reduce tobacco use by youth.

NEW SECTION. Sec. 13. This chapter preempts political subdivisions of the state from adopting requirements for the licensure and regulation of tobacco product promotions and sales within retail stores and wholesale operations. No political subdivision of the state may: (1) Impose fees or license requirements on retail and wholesale businesses for possessing or selling cigarettes or tobacco products; or (2) Regulate activities prohibited by sections 3 through 9 of this act. This chapter does not otherwise preempt political subdivisions of the state from adopting ordinances regulating the sale, purchase, use, or promotion of tobacco products.

Sec. 14. RCW 82.24.520 and 1986 c 321 s 6 are each amended to read as follows:

(1) A fee of ((~~six hundred fifty~~)) thirteen hundred 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~~)) two hundred fifty dollars shall be required for each additional place of business.

(2) Each license, or certificate thereof, and such other evidence of license as the department of revenue 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.

(3) The department of revenue shall require each licensed wholesaler to file with the department a bond in an amount not less than one 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 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. 15. RCW 82.24.530 and 1986 c 321 s 7 are each amended to read as follows:

A fee of ((~~ten~~)) ninety-three dollars shall accompany each retailer's license application or license renewal application. A separate license is required for each separate location at which the retailer operates. A fee of ((~~one~~)) thirty additional dollars for each vending machine shall accompany each application or renewal for a license issued to a retail dealer operating a cigarette vending machine.

NEW SECTION. Sec. 16. The department of health shall report to the house of representatives and senate committees with jurisdiction for health issues no later than February 1, 1995, on the effectiveness of enforcement and education activities as specified in this act. This study shall include information concerning the adequacy of revenue to support enforcement and education activities.

Sec. 17. RCW 82.24.550 and 1986 c 321 s 9 are each amended to read as follows:

(1) The department of revenue shall enforce the provisions of this chapter except RCW 82.24.500, which will be enforced by the liquor control board. The department of revenue may adopt, amend, and repeal rules necessary to enforce and administer the provisions of this chapter. The department of revenue 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. The department of revenue, 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 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 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 if it appears to the satisfaction of the department of revenue 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, and any order of suspension or revocation by the department of revenue 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 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.

Sec. 18. RCW 82.24.560 and 1986 c 321 s 10 are each amended to read as follows:

Except as specified in section 12 of this act, all fees and penalties received or collected by the department of revenue pursuant to this chapter shall be paid to the state treasurer, to be credited to the general fund.

Sec. 19. RCW 26.28.080 and 1987 c 250 s 2 and 1987 c 204 s 1 are each reenacted and amended to read as follows:

Every person who:

(1) Shall admit to or allow to remain in any concert saloon, or in any place owned, kept, or managed by him or her where intoxicating liquors are sold, given away or disposed of‑-except a restaurant or dining room, any person under the age of eighteen years; or,

(2) Shall admit to, or allow to remain in any public pool or billiard hall, or in any place of entertainment injurious to health or morals, owned, kept or managed by him or her, any person under the age of eighteen years; or,

(3) Shall suffer or permit any such person to play any game of skill or chance, in any such place, or in any place adjacent thereto, or to be or remain therein, or admit or allow to remain in any reputed house of prostitution or assignation, or in any place where opium or any preparation thereof, is smoked, or where any narcotic drug is used, any persons under the age of eighteen years; or,

(4) Shall knowingly or through failure to check identification sell or give, or permit to be sold or given to any person under the age of eighteen years any cigar, cigarette, cigarette paper or wrapper, or tobacco in any form; or

(5) Shall sell, or give, or permit to be sold or given to any person under the age of eighteen years, any revolver or pistol;

Shall be guilty of a gross misdemeanor.

It shall be no defense to a prosecution for a violation of this section that the person acted, or was believed by the defendant to act, as agent or representative of another.

NEW SECTION. Sec. 20. A new section is added to chapter 43.70 RCW to read as follows:

The department of health shall implement a tobacco education program that emphasizes no new smokers, targets young people, and promotes reduction of use. The program shall include an advertising element that uses diverse types of media and strives to reach all subcultures and subgroups of local communities. The advertising shall stress the dangers and problems of tobacco use. This program shall be funded by no less than half the savings to the state through compliance with the provisions of the alcohol, drug abuse and mental health administration reorganization act of 1992 (Public Law 102-321 Section 1926).

NEW SECTION. Sec. 21. Sections 2 through 13 of this act shall constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 22. 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.