1 South Carolina General Assembly 2 118th Session, 2009-2010 3 4 S. 752 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Senators Cleary, Courson, Jackson, Nicholson, Reese, Campbell, Land, Williams, Ford, Knotts, 10 Matthews, O'Dell, McGill, Cromer, Alexander, Anderson, Campsen, Hayes and Rose 11 Document Path: l:\council\bills\ms\7318ahb09.docx 12 13 Introduced in the Senate on April 23, 2009 14 Currently residing in the Senate Committee on Judiciary 15 16 Summary: Youth Access to Tobacco Prevention Act 17 18 19 HISTORY OF LEGISLATIVE ACTIONS 20 21 Date Body Action Description with journal page number 22 4/23/2009 Senate Introduced and read first time SJ5 23 4/23/2009 Senate Referred to Committee on Judiciary SJ5 24 5/5/2009 Senate Referred to Subcommittee: Knotts (ch), Massey, Coleman 25 26 27 VERSIONS OF THIS BILL 28 29 4/23/2009 30 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 12 1976, BY ENACTING THE “YOUTH ACCESS TO TOBACCO 13 PREVENTION ACT OF 2009”; BY ADDING SECTION 14 1617506 SO AS TO REQUIRE A PERSON ENGAGED IN THE 15 BUSINESS OF SELLING OR DISTRIBUTING TOBACCO 16 PRODUCTS AT RETAIL TO FILE AN APPLICATION TO 17 ENGAGE IN THIS BUSINESS WITH THE DEPARTMENT OF 18 REVENUE, TO PROVIDE A PROCEDURE FOR THE 19 APPLICATION PROCESS, AND TO PROVIDE PENALTIES 20 FOR VIOLATIONS; TO AMEND SECTION 1617500, AS 21 AMENDED, RELATING TO THE ILLEGAL SALE OR 22 PURCHASE OF TOBACCO PRODUCTS FOR MINORS, SO AS 23 TO PROVIDE AN EXCEPTION TO THE REQUIREMENT OF 24 THE DEMAND OF PROOF OF AGE UNDER CERTAIN 25 CIRCUMSTANCES, TO PROHIBIT THE SALE OF TOBACCO 26 PRODUCTS FROM SELFSERVICE DISPLAYS WITH 27 CERTAIN DELINEATED EXCEPTIONS, AND TO PROVIDE 28 FOR LICENSE SUSPENSION AND REVOCATION FOR 29 SUBSEQUENT VIOLATIONS; AND TO AMEND SECTION 30 1617501, AS AMENDED, RELATING TO DEFINITIONS FOR 31 PURPOSES OF THE YOUTH ACCESS TO TOBACCO 32 PREVENTION ACT, SO AS TO DEFINE THE TERMS 33 “SELFSERVICE DISPLAY”, “TOBACCO PRODUCT”, AND 34 “TOBACCO SPECIALTY STORE”. 35 36 Be it enacted by the General Assembly of the State of South 37 Carolina: 38 39 SECTION 1. This act may be cited as the “Youth Access to 40 Tobacco Prevention Act of 2009”. 41

[752] 2 1 SECTION 2. Article 7, Chapter 17, Title 16 of the 1976 Code is 2 amended by adding: 3 4 “Section 1617506. (A) A person engaged in the business of 5 selling or distributing tobacco products at retail in this State shall 6 file an application with the Department of Revenue for a license 7 permitting him to engage in this business. If the business is 8 conducted at two or more separate places, a separate license for 9 each place of business is required. Licenses may not be issued to a 10 minor under the age of eighteen years or to a business 11 establishment in which a minor serves as an officer or principal. 12 (B) The application must be filed on a form to be furnished by 13 the department for that purpose and shall contain a statement 14 including the name of the individual, partnership, including the 15 name of each individual partner, or corporation, the post office 16 address, and the nature of the business. The application must be 17 signed and verified by oath or affirmation by the individual owner 18 of the business seeking the license or, if the owner is a partnership, 19 corporation, or other business entity, by an executive officer or 20 another person authorized to sign the application, together with 21 written evidence of this authority. Upon receipt of an application 22 for a license to engage in a business as provided in this section, the 23 department shall issue to the applicant a permanent license 24 permitting the sale and distribution of the articles designated. 25 (C) The license must be displayed at all times in a conspicuous 26 place at or in the place of business where it may be easily seen by 27 the public. 28 (D) The license provided for in this section must be obtained 29 before engaging in the business in this State and is only valid for 30 the person in whose name it is issued and only for the transaction 31 of business at the place designated in the license. 32 (E) A person or retail establishment who violates a provision of 33 this section is guilty of a misdemeanor and, upon conviction, must 34 be: 35 (1) for a first offense, fined not less than one hundred dollars 36 nor more than two hundred dollars; 37 (2) for a second offense, which occurs within three years of 38 the first offense, fined not less than two hundred dollars nor more 39 than three hundred dollars; and 40 (3) for a third or subsequent offense, which occurs within 41 three years of the first offense, fined not less than three hundred 42 dollars nor more than four hundred dollars.” 43

[752] 3 1 SECTION 3. Section 1617500 of the 1976 Code, as last amended 2 by Act 231 of 2006, is further amended to read: 3 4 “Section 1617500. (A) It is unlawful for an individual to sell, 5 furnish, give, distribute, purchase for, or provide a tobacco product 6 to a minor under the age of eighteen years. 7 (B) It is unlawful to sell a tobacco product to an individual who 8 does not present upon demand proper proof of age unless a 9 reasonable person would conclude on the basis of the individual’s 10 appearance that he appears to be twentyseven years of age or older. 11 Failure to demand identification to verify an individual’s age is not 12 a defense to an action initiated pursuant to this subsection. It is a 13 defense to an action initiated pursuant to this subsection that at the 14 time of the relevant sale: 15 (1) the individual was not a minor under the age of eighteen 16 years; or 17 (2) proof that is was demanded, is shown, and reasonably is 18 relied upon for the individual’s proof of age is a defense to an 19 action initiated pursuant to this subsection. 20 (C) It is unlawful to sell a tobacco product through a vending 21 machine unless the vending machine is located in an 22 establishment: 23 (1) which is open only to individuals who are eighteen years 24 of age or older; or 25 (2) where the vending machine is under continuous control 26 by the owner or licensee of the premises, or an employee of the 27 owner or licensee, can be operated only upon activation by the 28 owner, licensee, or employee before each purchase, and is not 29 accessible to the public when the establishment is closed. 30 (D) It is unlawful to sell a tobacco product from a selfservice 31 display unless it is through a: 32 (1) selfservice display located in a tobacco specialty store; or 33 (2) vending machine permitted pursuant to the provisions of 34 subsection (C). 35 (E)(1) An individual who knowingly violates a provision of 36 subsections (A), (B), or (C), or (D) in person, by agent, or in any 37 other way is guilty of a misdemeanor and, upon conviction, must 38 be: 39 (a) for a first offense, fined not less than one hundred 40 dollars nor more than two hundred dollars; 41 (b) for a second offense, which occurs within three years 42 of the first offense, fined not less than two hundred dollars nor 43 more than three hundred dollars; and

[752] 4 1 (c) for a third or subsequent offense, which occurs within 2 three years of the first offense, fined not less than three hundred 3 dollars nor more than four hundred dollars. 4 (2) In lieu of the fine, the court may require an individual to 5 successfully complete a Department of Alcohol and Other Drug 6 Abuse Services approved merchant tobacco enforcement education 7 program. 8 (3) In addition to another penalty prescribed by this section 9 or another provision of law, for a: 10 (a) second violation pursuant to the provisions of 11 subsection (A) within three years of the first offense, the court may 12 order the Department of Revenue to suspend a license issued 13 pursuant to Section 1617506 for the location where the offense 14 occurred for a period of ninety days per offense; and 15 (b) for a third or subsequent violation pursuant to the 16 provisions of subsection (A) within three years of the first offense, 17 the court may order the Department of Revenue to revoke a license 18 issued pursuant to Section 1617506 for the location where the 19 offense occurred. 20 (4) Upon suspension or revocation of a license pursuant to 21 the provisions of item (3), the retailer shall surrender the license to 22 the Department of Revenue. 23 (E)(F)(1) A minor under the age of eighteen years must not 24 purchase, attempt to purchase, possess, or attempt to possess a 25 tobacco product, or present or offer proof of age that is false or 26 fraudulent for the purpose of purchasing or possessing a tobacco 27 product. 28 (2) A minor who knowingly violates a provision of 29 subsection (E) item (1) in person, by agent, or in any other way 30 commits a noncriminal offense and is subject to a civil fine of 31 twentyfive dollars. The civil fine is subject to all applicable court 32 costs, assessments, and surcharges. 33 (3) In lieu of the civil fine, the court may require a minor to 34 successfully complete a Department of Health and Environmental 35 Control approved smoking cessation or tobacco prevention 36 program, or to perform not more than five hours of community 37 service for a charitable institution. 38 (4) If a minor fails to pay the civil fine, successfully 39 complete a smoking cessation or tobacco prevention program, or 40 perform the required hours of community service as ordered by the 41 court, the court may restrict the minor’s driving privileges to 42 driving only to and from school, work, and church, or as the court 43 considers appropriate for a period of ninety days beginning from

[752] 5 1 the date provided by the court. If the minor does not have a 2 driver’s license or permit, the court may delay the issuance of the 3 minor’s driver’s license or permit for a period of ninety days 4 beginning from the date the minor applies for a driver’s license or 5 permit. Upon restricting or delaying the issuance of the minor’s 6 driver’s license or permit, the court must complete and remit to the 7 Department of Motor Vehicles any required forms or 8 documentation. The minor is not required to submit his driver’s 9 license or permit to the court or the Department of Motor Vehicles. 10 The Department of Motor Vehicles must clearly indicate on the 11 minor’s driving record that the restriction or delayed issuance of 12 the minor’s driver’s license or permit is not a traffic violation or a 13 driver’s license suspension. The Department of Motor Vehicles 14 must notify the minor’s parent, guardian, or custodian of the 15 restriction or delayed issuance of the minor’s driver’s license or 16 permit. At the completion of the ninetyday period, the Department 17 of Motor Vehicles must remove the restriction or allow for the 18 issuance of the minor’s license or permit. No record may be 19 maintained by the Department of Motor Vehicles of the restriction 20 or delayed issuance of the minor’s driver’s license or permit after 21 the ninetyday period. The restriction or delayed issuance of the 22 minor’s driver’s license or permit must not be considered by any 23 insurance company for automobile insurance purposes or result in 24 any automobile insurance penalty, including any penalty under the 25 Merit Rating Plan promulgated by the Department of Insurance. 26 (5) A violation of this subsection is not a criminal or 27 delinquent offense and no criminal or delinquent record may be 28 maintained. A minor may not be detained, taken into custody, 29 arrested, placed in jail or in any other secure facility, committed to 30 the custody of the Department of Juvenile Justice, or found to be in 31 contempt of court for a violation of this subsection or for the 32 failure to pay a fine, successfully complete a smoking cessation or 33 tobacco prevention program, or perform community service. 34 (6) A violation of this subsection is not grounds for denying, 35 suspending, or revoking an individual’s participation in a state 36 college or university financial assistance program including, but 37 not limited to, a Life Scholarship, a Palmetto Fellows Scholarship, 38 or a needbased grant. 39 (7) The uniform traffic ticket, established pursuant to 40 Section 56710, may be used by law enforcement officers for a 41 violation of this subsection. a A law enforcement officer issuing a 42 uniform traffic ticket pursuant to this subsection must immediately 43 seize the tobacco product. The law enforcement officer also must

[752] 6 1 notify a minor’s parent, guardian, or custodian of the minor’s 2 offense, if reasonable, within ten days of the issuance of the 3 uniform traffic ticket. 4 (F)(G) This section does not apply to the possession of a 5 tobacco product by a minor working within the course and scope 6 of his duties as an employee or participating within the course and 7 scope of an authorized inspection or compliance check. 8 (G)(H) Jurisdiction to hear a violation of this section is vested 9 exclusively in the municipal court and the magistrate’s court. A 10 hearing pursuant to subsection (E) (F) must be placed on the 11 court’s appropriate docket for traffic violations, and not on the 12 court’s docket for civil matters. 13 (H)(I) A retail establishment that distributes tobacco products 14 must train all retail sales employees regarding the unlawful 15 distribution of tobacco products to minors. 16 (I)(J) Notwithstanding any other provision of law, a violation 17 of this section does not violate the terms and conditions of an 18 establishment’s beer and wine permit and is not grounds for 19 revocation or suspension of a beer and wine permit.” 20 21 SECTION 4. Section 1617501 of the 1976 Code, as last amended 22 by Act 231 of 2006, is further amended to read: 23 24 “Section 16-17-501. As used in this section and Sections 25 1617500, 1617502, 1617503, and 1617504, and 1617506: 26 (1) ‘Distribute’ means to sell, furnish, give, or provide tobacco 27 products, including tobacco product samples, cigarette paper, or a 28 substitute for them, to the ultimate consumer. 29 (2) ‘Proof of age’ means a driver’s license or identification 30 card issued by this State or a United States Armed Services 31 identification card. 32 (3) ‘Sample’ means a tobacco product distributed to members 33 of the general public at no cost for the purpose of promoting the 34 products. 35 (4) ‘Sampling’ means the distribution of samples to members 36 of the general public in a public place. 37 (5) ‘Selfservice display’ means a display that contains tobacco 38 products and is located in an area openly accessible to consumers 39 at retail, from which consumers can readily access tobacco 40 products without the assistance of a retail sales employee. A 41 display case that holds tobacco products behind locked doors does 42 not constitute a selfservice display.

[752] 7 1 (6) ‘Tobacco product’ means a product that contains tobacco 2 and is intended for human consumption. 3 (7) ‘Tobacco specialty store’ means a retail establishment that 4 derives at least seventyfive percent of its revenue from the sale of 5 tobacco products.” 6 7 SECTION 5. This act takes effect upon approval by the 8 Governor. 9 XX 10

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