PRINTER'S NO. 983
No. 848 Session of 2003
INTRODUCED BY DALLY, ALLEN, BASTIAN, BELARDI, BROWNE, CAWLEY,
CIVERA, CORRIGAN, COSTA, CREIGHTON, J. EVANS, GANNON, GEIST,
GORDNER, GRUCELA, HARRIS, HORSEY, JAMES, KIRKLAND, LaGROTTA,
LEACH, LEWIS, MACKERETH, MAITLAND, MANN, McILHATTAN,
R. MILLER, S. MILLER, ROSS, RUBLEY, SAYLOR, SCAVELLO,
SCHRODER, SHANER, STEIL, STERN, SURRA, J. TAYLOR, THOMAS,
WATSON AND YOUNGBLOOD, MARCH 11, 2003
REFERRED TO COMMITTEE ON JUDICIARY, MARCH 11, 2003
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, providing for the offense of purchase
3 or consumption of cigarettes by minors.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Section 6305 of Title 18 of the Pennsylvania
7 Consolidated Statutes is amended to read:
8 § 6305. Sale of tobacco.
9 (a) Offense defined.--Except as set forth in subsection (f),
10 a person is guilty of a summary offense if the person:
11 (1) sells a tobacco product to any minor;
12 (2) furnishes, by purchase, gift or other means, a
13 tobacco product to a minor;
14 (4) locates or places a tobacco vending machine
15 containing a tobacco product in a location accessible to
16 minors;
1 (5) displays or offers a cigarette for sale out of a
2 pack of cigarettes; or
3 (6) displays or offers for sale tobacco products in any
4 manner which enables an individual other than the retailer or
5 an employee of the retailer to physically handle tobacco
6 products prior to purchase unless the tobacco products are
7 located within the line of sight or under the control of a
8 cashier or other employee during business hours, except that
9 this paragraph shall not apply to retail stores which derive
10 75% or more of sales revenues from tobacco products.
11 [(a.1) Purchase.--A minor is guilty of a summary offense if
12 the minor:
13 (1) purchases or attempts to purchase a tobacco product;
14 or
15 (2) knowingly falsely represents himself to be at least
16 18 years of age to a person for the purpose of purchasing or
17 receiving a tobacco product.]
18 (b) Penalty.--
19 (1) Except as set forth in paragraph (2), a person that
20 violates subsection (a) shall be sentenced as follows:
21 (i) for a first offense, to pay a fine of not less
22 than $100 nor more than $250;
23 (ii) for a second offense, to pay a fine of not less
24 than $250 nor more than $500; or
25 (iii) for a third or subsequent offense, to pay a
26 fine of not less than $500 nor more than $1,000.
27 (2) A retailer that violates subsection (a) shall be
28 sentenced as follows:
29 (i) for a first offense, to pay a fine of not less
30 than $100 nor more than $500;
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1 (ii) for a second offense, to pay a fine of not less
2 than $500 nor more than $1,000;
3 (iii) for a third offense, to pay a fine of not less
4 than $1,000 nor more than $3,000; or
5 (iv) for a fourth or subsequent offense, to pay a
6 fine of not less than $3,000 nor more than $5,000.
7 [(3) A minor who violates subsection (a.1) shall be
8 sentenced to any or all of the following:
9 (i) not more than 75 hours of community service;
10 (ii) complete a tobacco use prevention and cessation
11 program approved by the Department of Health;
12 (iii) a fine not to exceed $200; or
13 (iv) a 30-day suspension of motor vehicle operating
14 privileges.]
15 (c) Notification.--
16 (1) [Upon issuing or filing a citation charging a
17 violation of subsection (a.1), the affiant shall notify the
18 parent or guardian of the minor charged.
19 (2)] Upon imposing a sentence under subsection (b)(1) or
20 (2), a court shall notify the department of the violation
21 committed by the person if the person is a retailer or an
22 employee of a retailer and the person committed the violation
23 in the course of the person's employment.
24 (d) Nature of offense.--
25 (1) [An offense under subsection (a.1) shall not be a
26 criminal offense of record, shall not be reportable as a
27 criminal act and shall not be placed on the criminal record
28 of the offender. The failure of a minor to comply with a
29 sentence under subsection (b)(3) shall not constitute a
30 delinquent act under 42 Pa.C.S. Ch. 63 (relating to juvenile
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1 matters).
2 (2)] A record of participation in an adjudication
3 alternative program under subsection (e) shall be maintained
4 for purposes of determining subsequent eligibility for such a
5 program.
6 (3) Except as provided in subsection (f)(1), a retailer
7 is liable for the acts of its agents as permitted by section
8 307 (relating to liability of organizations and certain
9 related persons).
10 (e) Preadjudication disposition.--If a person is charged
11 with violating this section, the court may admit the offender to
12 the adjudication alternative program as authorized in 42 Pa.C.S.
13 § 1520 (relating to adjudication alternative program) or any
14 other preadjudication disposition if the offender has not
15 previously received a preadjudication disposition for violating
16 this section. Accelerated rehabilitative disposition or any
17 other preadjudication alternative for a violation of subsection
18 (a) shall be considered an offense for the purposes of imposing
19 criminal penalties under subsection (b)(1) and (2).
20 (f) Exceptions.--
21 (1) The following affirmative defense is available:
22 (i) It is an affirmative defense for a retailer to
23 an offense under subsection (a)(1) and (2) that, prior to
24 the date of the alleged violation, the retailer has
25 complied with all of the following:
26 (A) adopted and implemented a written policy
27 against selling tobacco products to minors which
28 includes:
29 (I) a requirement that an employee ask an
30 individual who appears to be 25 years of age or
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1 younger for a valid photoidentification as proof
2 of age prior to making a sale of tobacco
3 products;
4 (II) a list of all types of acceptable
5 photoidentification;
6 (III) a list of factors to be examined in
7 the photoidentification, including photo
8 likeness, birth date, expiration date, bumps,
9 tears or other damage and signature;
10 (IV) a requirement that, if the
11 photoidentification is missing any of the items
12 listed in subclause (III), it is not valid and
13 cannot be accepted as proof of age for the sale
14 of tobacco products. A second photoidentification
15 may be required to make the sale of tobacco
16 products, with questions referred to the manager;
17 and
18 (V) a disciplinary policy which includes
19 employee counseling and suspension for failure to
20 require valid photoidentification and dismissal
21 for repeat improper sales.
22 (B) informed all employees selling tobacco
23 products through an established training program of
24 the applicable Federal and State laws regarding the
25 sale of tobacco products to minors;
26 (C) documented employee training indicating that
27 all employees selling tobacco products have been
28 informed of and understand the written policy
29 referred to in clause (A);
30 (D) trained all employees selling tobacco
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1 products to verify that the purchaser is at least 18
2 years of age before selling tobacco products;
3 (E) conspicuously posted a notice that selling
4 tobacco products to a minor is illegal, that the
5 purchase of tobacco products by a minor is illegal
6 and that a violator is subject to penalties; and
7 (F) established and implemented disciplinary
8 sanctions for noncompliance with the policy under
9 clause (A).
10 (ii) An affirmative defense under this paragraph
11 must be proved by a preponderance of the evidence.
12 (iii) An affirmative defense under this paragraph
13 may be used by a retailer no more than three times at
14 each retail location during any 24-month period.
15 (2) No more than one violation of subsection (a) per
16 person arises out of separate incidents which take place in a
17 24-hour period.
18 [(3) It is not a violation of subsection (a.1)(1) for a
19 minor to purchase or attempt to purchase a tobacco product if
20 all of the following apply:
21 (i) The minor is at least 14 years of age.
22 (ii) The minor is an employee, volunteer or an
23 intern with:
24 (A) a State or local law enforcement agency;
25 (B) the Department of Health or a primary
26 contractor pursuant to Chapter 7 of the act of June
27 26, 2001 (P.L.755, No.77), known as the Tobacco
28 Settlement Act;
29 (C) a single county authority created pursuant
30 to the act of April 14, 1972 (P.L.221, No.63), known
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1 as the Pennsylvania Drug and Alcohol Abuse Control
2 Act;
3 (D) a county or municipal health department; or
4 (E) a retailer.
5 (iii) The minor is acting within the scope of
6 assigned duties as part of an authorized investigation,
7 compliance check under subsection (g) or retailer-
8 organized self-compliance check.
9 (iv) A minor shall not use or consume a tobacco
10 product.]
11 (g) Compliance checks.--This subsection shall apply to
12 compliance checks conducted by the Department of Health, a
13 primary contractor pursuant to Chapter 7 of the Tobacco
14 Settlement Act, a single county authority created pursuant to
15 the Pennsylvania Drug and Alcohol Abuse Control Act or a county
16 or municipal health department for the purpose of conducting
17 retailer education, assessing compliance with Federal or State
18 law and enforcing the provisions of this section. Compliance
19 checks shall be conducted, at a minimum, in accordance with all
20 of the following:
21 (1) Compliance checks shall only be conducted in
22 consultation with the Department of Health and the law
23 enforcement agency providing primary police services to the
24 municipality where the compliance check is being conducted.
25 (2) A minor participating in a compliance check must be
26 at least 14 years of age, complete a course of training
27 approved by the Department of Health and furnish the
28 Department of Health with a signed, written parental consent
29 agreement allowing the minor to participate in the compliance
30 check.
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1 (3) A retailer that is found to be in compliance with
2 this section during a compliance check shall be notified in
3 writing of the compliance check and the determination of
4 compliance.
5 (4) Compliance checks conducted under this subsection
6 shall be in a manner consistent with this subsection and the
7 regulations as promulgated by the Department of Health.
8 (5) The Department of Health, a primary contractor
9 pursuant to Chapter 7 of the Tobacco Settlement Act, a single
10 county authority created pursuant to the Pennsylvania Drug
11 and Alcohol Abuse Control Act or a county or municipal health
12 department shall conduct a compliance check under this
13 subsection no more than once every 30 days at any one retail
14 location. This paragraph shall not preclude the law
15 enforcement agency providing primary police services to the
16 municipality in which the retail store is located from
17 otherwise enforcing this section.
18 (6) Individuals participating in compliance checks under
19 this subsection shall not be deemed employees under the act
20 of July 23, 1970 (P.L.563, No.195), known as the Public
21 Employe Relations Act, nor shall participating individuals be
22 considered policemen under the act of June 24, 1968 (P.L.237,
23 No.111), referred to as the Policemen and Firemen Collective
24 Bargaining Act.
25 (h) Administrative action.--
26 (1) Upon receiving notice, in accordance with subsection
27 (c) or otherwise, of a third conviction of a retailer during
28 any 24-month period, the department may, after an opportunity
29 for a hearing, suspend the retailer's cigarette license for
30 up to 30 days. The department, in a hearing held pursuant to
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1 this paragraph, has jurisdiction only to determine whether or
2 not the retailer was convicted of a violation of subsection
3 (a). The introduction of a certified copy of a conviction for
4 a violation of subsection (a) shall be sufficient evidence
5 for the suspension of the cigarette license.
6 (2) Upon receiving notice, in accordance with subsection
7 (c) or otherwise, of a fourth conviction of a retailer during
8 any 24-month period, the department may, after an opportunity
9 for a hearing, revoke the retailer's cigarette license for up
10 to 60 days. The department, in a hearing held under this
11 paragraph, has jurisdiction only to determine whether or not
12 the retailer was convicted of a violation of subsection (a).
13 The introduction of a certified copy of a conviction for a
14 violation of subsection (a) shall be sufficient evidence for
15 the revocation of the cigarette license.
16 (i) Enforcement.--An employee of the Department of Health, a
17 single county authority created pursuant to the Pennsylvania
18 Drug and Alcohol Abuse Control Act, a county or municipal health
19 department or a primary contractor pursuant to Chapter 7 of the
20 Tobacco Settlement Act may institute a proceeding to enforce the
21 provisions of this section in accordance with any means
22 authorized by the Rules of Criminal Procedure. The enforcement
23 authority granted pursuant to this subsection may not be
24 delegated.
25 (j) Other penalties.--Notwithstanding any other law to the
26 contrary, prosecution or conviction under this section shall not
27 constitute a bar to any prosecution, penalty or administrative
28 action under any other applicable statutory provision.
29 (k) Definitions.--As used in this section, the following
30 words and phrases shall have the meanings given to them in this
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1 subsection:
2 "Cigarette." A roll for smoking made wholly or in part of
3 tobacco, irrespective of size or shape and whether or not the
4 tobacco is flavored, adulterated or mixed with any other
5 ingredient, the wrapper or cover of which is made of paper or
6 other substance or material except tobacco. The term does not
7 include a cigar.
8 "Cigarette license." A license issued under section 203-A or
9 213-A of the act of April 9, 1929 (P.L.343, No.176), known as
10 The Fiscal Code.
11 "Department." The Department of Revenue of the Commonwealth.
12 "Minor." An individual under 18 years of age.
13 "Pack of cigarettes." As defined in section 1201 of the act
14 of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of
15 1971.
16 "Pipe tobacco." Any product containing tobacco made
17 primarily for individual consumption that is intended to be
18 smoked using tobacco paraphernalia.
19 "Retailer." A person licensed under section 203-A or 213-A
20 of the act of April 9, 1929 (P.L.343, No.176), known as The
21 Fiscal Code.
22 "Smokeless tobacco." Any product containing finely cut,
23 ground, powdered, blended or leaf tobacco made primarily for
24 individual consumption that is intended to be placed in the oral
25 or nasal cavity and not intended to be smoked. The term
26 includes, but is not limited to, chewing tobacco, dipping
27 tobacco and snuff.
28 "Tobacco product." A cigarette, cigar, pipe tobacco or other
29 smoking tobacco product or smokeless tobacco in any form,
30 manufactured for the purpose of consumption by a purchaser, and
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1 any cigarette paper or product used for smoking tobacco.
2 "Tobacco vending machine." A mechanical or electrical device
3 from which one or more tobacco products are dispensed for a
4 consideration.
5 Section 2. Title 18 is amended by adding a section to read:
6 § 6306.2. Purchase, consumption, possession or transportation
7 of tobacco.
8 (a) Offense defined.--A person commits a summary offense if
9 the person, being under 18 years of age, attempts to purchase,
10 purchases, consumes, possesses or knowingly and intentionally
11 transports tobacco in any form.
12 (b) Preadjudication disposition.--
13 (1) When a person is charged with violating subsection
14 (a), the district justice may admit the offender to the
15 adjudication alternative as authorized in 42 Pa.C.S. § 1520
16 (relating to adjudication alternative program) or any other
17 preadjudication disposition if the offender has not
18 previously received a preadjudication disposition for
19 violating subsection (a).
20 (2) The use of a preadjudication disposition shall be
21 considered a first or subsequent offense, whichever is
22 applicable for the purpose of further adjudication under this
23 section.
24 (c) Notification.--The police department making the arrest
25 for a suspected violation of subsection (a) shall notify the
26 parents or guardian of the person charged.
27 (d) Nature of offense.--A summary offense under this section
28 shall not be a criminal offense of record, shall not be
29 reportable as a criminal act and shall not be placed on the
30 criminal record of the offending person if any such record
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1 exists.
2 Section 3. This act shall take effect in 60 days.
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