AN ACT Relating to cigarette wholesalers and retailers; amending RCW 19.91.010, 19.91.911, 19.02.110, 82.24.130, and 82.24.250; adding new sections to chapter 82.24 RCW; creating a new section; prescribing penalties; and providing effective dates.

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

NEW SECTION. Sec. 1. It is the intent of the legislature during the present time to displace competition and regulate prices and practices of cigarette wholesalers and retailers in order to protect the public against the undue promotion of cigarette consumption through low cigarette prices and to protect cigarette wholesalers and retailers against predatory cigarette pricing.

Sec. 2. Section 3, chapter 2, Laws of 1983 as amended by section 1, chapter 173, Laws of 1984 and RCW 19.91.010 are each amended to read as follows:

When used in this chapter, the following words and phrases shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) "Person" means and includes any individual, firm, association, company, partnership, corporation, joint stock company, club, agency, syndicate, municipal corporation, or other political subdivision of this state, trust, receiver, trustee, fiduciary and conservator.

(2) "Wholesaler" includes any person who:

(a) Purchases cigarettes directly from the manufacturer, or

(b) Purchases cigarettes from any other person who purchases from or through the manufacturer, for the purpose of bona fide resale to retail dealers or to other persons for the purpose of resale only, or

(c) Services retail outlets by the maintenance of an established place of business for the purchase of cigarettes, including, but not limited to, the maintenance of warehousing facilities for the storage and distribution of cigarettes.

Nothing contained herein shall prevent a person from qualifying in different capacities as both a "wholesaler" and "retailer" under the applicable provisions of this chapter.

(3) "Retailer" means and includes any person who operates a store, stand, booth, concession, or vending machine for the purpose of making sales of cigarettes at retail.

(4) "Cigarettes" means any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated, or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material except tobacco.

(5) "Sale" means any transfer for a consideration, exchange, barter, gift, offer for sale and distribution, in any manner, or by any means whatsoever.

(6) "Sell at wholesale", "sale at wholesale" and "wholesale" sales mean and include any bona fide transfer of title to cigarettes for a valuable consideration, made in the ordinary course of trade or in the usual conduct of the wholesaler's business, to a retailer for the purpose of resale.

(7) "Sell at retail", "sale at retail" and "retail sales" mean and include any transfer of title to cigarettes for a valuable consideration, made in the ordinary course of trade or usual conduct of the seller's business, to the purchaser for consumption or use.

(8) "Basic cost of cigarettes" means the invoice cost of cigarettes to the retailer or wholesaler, as the case may be, or the replacement cost of cigarettes to the retailer or wholesaler, as the case may be, in the quantity last purchased, whichever is lower, less all trade discounts and two percent of the customary discounts for cash, to which shall be added the full face value of any stamps which may be required by any cigarette tax act of this state and by ordinance of any municipality thereof, now in effect or hereafter enacted, if not already included by the manufacturer's ((~~in his~~)) list price. ((The disposition of the manufacturers' cash discount is at the discretion of the wholesaler. Any retailer or wholesaler who actually receives and sells cigarettes with trade or cash discounts shall execute a sworn affidavit and obtain a sworn affidavit from the person granting the discount, whether a manufacturer or wholesaler, which shows: (a) Amount or rate of the discount, (b) date the discount was granted, (c) names of the persons granting and receiving the discount, and (d) whether the discount is for cash or trade purposes. Sworn affidavits under this section are maintained for five years and available for inspection by the department of revenue's request. The department of revenue may impose a civil penalty not to exceed two hundred fifty dollars for each failure to maintain affidavits under this section.

~~Nothing in this section may be construed to require any retailer to obtain affidavits from retail purchasers of cigarettes.~~))

(9) (a) The term "cost to the wholesaler" means the "basic cost of cigarettes" to the wholesaler plus the "cost of doing business by the wholesaler" which said cost of doing business amount shall be expressed percentage-wise in the ratio that said wholesalers "cost of doing business" bears to said wholesalers dollar volume for all products sold by the wholesaler per annum, and said "cost of doing business by the wholesaler" shall be evidenced and determined by the standards and methods of accounting regularly employed by ((~~him~~)) the wholesaler for the purpose of federal income tax reporting for the total operation of ((~~his~~)) the wholesaler's establishment in ((~~his~~)) its allocation of overhead costs and expenses, paid or incurred, and must include, without limitation, labor costs (including reasonable salaries for partners, executives, and officers), rent, depreciation, selling cost, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance and advertising, expressed as a percentage and applied to the "basic cost of cigarettes". Any fractional part of a cent amounting to one-tenth of one cent or more in cost to the wholesaler per carton of ten packages of cigarettes shall be rounded off to the next higher cent.

(b) For the purposes of this chapter the "cost of doing business" may not be computed using a percentage less than the overall percentage shown in subsection (9)(a) of this section ((~~or in the absence of the filing with the department of revenue of satisfactory proof of a lesser or higher cost of doing business by the wholesaler making the sale,~~)). The "cost of doing business by the wholesaler" shall be presumed to be ((~~four percent~~)) the percentage of the "basic cost of cigarettes" to the wholesaler specified in (c) of this subsection, plus cartage to the retail outlet, if performed or paid for by the wholesaler, which cartage cost((~~, in the absence of the filing with the department of revenue of satisfactory proof of a lesser or higher cost,~~)) shall be deemed to be one-half of one percent of the "basic cost of cigarettes" to the wholesaler.

(c) For the purposes of (b) of this subsection, the percentage of the basic cost of cigarettes to the wholesaler shall be three percent from July 1, 1986, until July 1, 1991.

(10) (a) The term "cost to the retailer" means the "basic cost of cigarettes" to the retailer plus the "cost of doing business by the retailer" which said cost of doing business amount shall be expressed percentage-wise in the ratio that said retailers "cost of doing business" bears to said retailers dollar volume per annum, and said "cost of doing business by the retailer" shall be evidenced and determined by the standards and methods of accounting regularly employed by ((~~him~~)) the retailer for the purpose of federal income tax reporting for the total operation of ((~~his~~)) the retailer's establishment in ((~~his~~)) its allocation of overhead costs and expenses, paid or incurred, and must include, without limitation, labor (including reasonable salaries for partners, executives, and officers), rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance and advertising, expressed as a percentage and applied to the "basic cost of cigarettes"((: PROVIDED, That any retailer who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a retailer but also, in whole or in part, discounts ordinarily allowed upon purchases by a wholesaler shall, in determining "cost to the retailer", pursuant to this subdivision, add)) plus the "cost of doing business by the wholesaler," as defined in subdivision (9) of this section, ((~~to the "basic cost of cigarettes" to said retailer,~~)) as well as the "cost of doing business by the retailer". Any fractional part of a cent amounting to one-tenth of one cent or more in cost to the retailer per carton of ten packages of cigarettes shall be rounded off to the next higher cent. A business operating as a cigarette wholesaler and a cigarette retailer shall include in its retail price the "cost to the wholesaler" and the "cost to the retailer."

(b) ((~~In the absence of the filing with the department of revenue of satisfactory proof of a lesser or higher cost of doing business by the retailer making the sale,~~)) The "cost of doing business by the retailer" shall be presumed to be ((~~twelve and five-tenths percent~~)) the percentage of the "basic cost of cigarettes" to the retailer specified in (d) of this subsection.

(c) ((~~In the absence of the filing with the department of revenue of satisfactory proof of a lesser or higher cost of doing business,~~)) The "cost of doing business by the retailer", who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a retailer but also, in whole or in part, the discounts ordinarily allowed upon purchases by a wholesaler, shall be presumed to be ((~~twelve and five-tenths percent~~)) the percentage of the sum of the "basic cost of cigarettes" and the "cost of doing business by the wholesaler" specified in (d) of this subsection.

(d) For the purposes of (b) and (c) of this subsection, the percentage shall be twelve and one-half percent from July 1, 1986, until July 1, 1991.

(11) "Business day" means any day other than a Sunday or a legal holiday.

(12) "Master license system" means the mechanism established by chapter 19.02 RCW by which master licenses, endorsed for individual state-issued licenses, are issued and renewed utilizing a master application and a master license expiration date common to each renewable license endorsement.

Sec. 3. Section 2, chapter 173, laws of 1984 and RCW 19.91.911 are each amended to read as follows:

(1) This chapter shall expire on June 30, ((1986, unless extended by law indefinitely or for an additional fixed period of time. The legislative budget committee shall cause a performance audit to be conducted of this chapter. The final audit report shall be available to the legislature at least six months prior to the scheduled expiration date. The legislative budget committee shall make objective findings of fact, conclusions, and recommendations as to the continuation, modification, or expiration of this chapter.

~~(2) In conducting its audit, the legislative budget committee shall consider, but not be limited to, the following areas:~~

~~(a) Definition, adequacy, and methods of determining cigarette pricing;~~

~~(b) The advantages, disadvantages, and effects of including cash discounts in the act's pricing formula; and~~

~~(c) The effect that state deregulation of cigarette pricing would have on wholesalers, retailers, and consumers.~~

(3) The legislative budget committee shall hold meetings and hearings at the times and places it designates to accomplish the purposes of this section. It shall make use of existing legislative facilities and the staff of the senate and house of representatives)) 1991.

NEW SECTION. Sec. 4. A person shall not engage in or conduct the business of purchasing, selling, consigning, or distributing cigarettes in this state without having first obtained the appropriate license for that purpose as prescribed in this chapter.

NEW SECTION. Sec. 5. (1) The licenses issuable under this chapter shall be as follows:

(a) A wholesaler's license; and

(b) A retailer's license.

(2) Application for the licenses shall be made through the master license system. The department of revenue shall make rules regarding the regulation of the licenses. The department of revenue may refrain from the issuance of any license under this chapter if the department has reasonable cause to believe that the applicant has wilfully withheld information requested for the purpose of determining the eligibility of the applicant to receive a license, or if the department has reasonable cause to believe that information submitted in the application is false or misleading or is not made in good faith. Each license shall expire on the master license expiration date, and each license shall be continued annually upon the conditions that the licensee has paid the required fee and complied with this chapter and the rules of the department of revenue made pursuant thereto.

NEW SECTION. Sec. 6. 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 shall require, 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 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 the 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.

NEW SECTION. Sec. 7. A fee of ten dollars shall accompany each retailer's license application or license renewal application. A fee of one additional dollar 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. 8. Any person licensed only as a wholesaler, or as a retail dealer, shall not operate in any other capacity except under that for which the person is licensed under this chapter, unless the additional appropriate license or licenses are first secured.

NEW SECTION. Sec. 9. Any person engaging in any business or activity for which a license is required under this chapter, without first having obtained a license to do so, or who, having had such a license, continues to engage in or conduct such business after the license has been revoked, or during a suspension thereof, is guilty of a misdemeanor.

NEW SECTION. Sec. 10. (1) The department of revenue may enforce this chapter. The department of revenue may adopt, amend, and repeal rules necessary to enforce and administer this chapter. The department of revenue may revoke or suspend the license of any wholesale or retail cigarette dealer in the state upon sufficient cause appearing of the violation of this chapter or on the failure of the licensee to comply with any of the provisions of this chapter.

(2) No license or licenses may 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 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 wilful 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) No person whose license has been suspended or revoked may 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 is 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. The review by the superior court, and any order entered thereon by the superior court, is appealable under the procedural law of this state.

NEW SECTION. Sec. 11. All fees 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. 12. Section 11, chapter 182, Laws of 1982 and RCW 19.02.110 are each amended to read as follows:

In addition to the licenses processed under the master license system prior to April 1, 1982, on July 1, 1982, use of the master license system shall be expanded as provided by this section.

Applications for the following shall be filed with the business license center and shall be processed, and renewals shall be issued, under the master license system:

(1) Nursery dealer's licenses required by chapter 15.13 RCW;

(2) Seed dealer's licenses required by chapter 15.49 RCW;

(3) Pesticide dealer's licenses required by chapter 15.58 RCW;

(4) Shopkeeper's licenses required by chapter 18.64 RCW;

(5) Refrigerated locker licenses required by chapter 19.32 RCW;

(6) Cigarette wholesalers licenses and retailers licenses ((~~required by chapter 19.91 RCW~~));

(7) Bakery licenses and distributor's licenses required by chapter 69.12 RCW; and

(8) Egg dealer's licenses required by chapter 69.25 RCW.

Sec. 13. Section 82.24.130, chapter 15, Laws of 1961 as amended by section 5, chapter 157, Laws of 1972 ex. sess. and RCW 82.24.130 are each amended to read as follows:

Subject to the provisions of RCW 82.24.250, any articles taxed herein found at any point within this state, which articles shall be held, owned or possessed by any person, and not having the stamps affixed to the packages or containers are hereby declared to be contraband goods, and may be seized by the department of revenue, or its duly authorized agent, or by any peace officer of the state, when directed by the department of revenue so to do, without a warrant, and said goods shall be offered by the department of revenue for sale at public auction to the highest bidder after due advertisement, but the department of revenue before delivering any of the goods so seized shall require the person, to whom such articles are sold, to affix the proper amount of stamps. The proceeds of sale of any goods sold hereunder shall be paid to the department of revenue.

The cost of seizure and sale shall be paid out of the proceeds derived from the sale before making remittance.

Any vending machine and any vehicle, not a common carrier, which may be used for the purpose of violating the provisions of this chapter shall likewise be subject to seizure and sale in the same manner.

Notwithstanding the foregoing provisions of this section, articles taxed herein which are in the possession of a cigarette wholesaler ((~~or retailer,~~)) licensed by the department, ((~~pursuant to the provisions of chapter 19.91 RCW~~)) for a period of time necessary to affix the stamps after receipt of the articles, shall not be considered contraband.

Sec. 14. Section 6, chapter 157, Laws of 1972 ex. sess. and RCW 82.24.250 are each amended to read as follows:

Every person who shall transport cigarettes not having the stamps affixed to the packages or containers, upon the public highways, roads or streets of this state shall have in his or her 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 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 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 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 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, 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 cigarettes" shall mean a cigarette wholesaler ((~~or retailer~~)) licensed ((~~pursuant to the provisions of chapter 19.91 RCW~~)) by the department of revenue, the United States or an agency thereof, and any Indian tribal organization authorized to possess unstamped cigarettes.

NEW SECTION. Sec. 15. Sections 4 through 11 of this act are each added to chapter 82.24 RCW.

NEW SECTION. Sec. 16. (1) Sections 2, 3, 12, 13, and 14 of this act shall take effect on June 30, 1986.

(2) Sections 4 through 11 of this act shall take effect on July 1, 1991.