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PRINTER'S NO. 723
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
697
Session of
2019
INTRODUCED BY McCARTER, ISAACSON, MILLARD, McNEILL, NEILSON,
HILL-EVANS, MULLERY, FRANKEL, MIZGORSKI, DeLUCA AND SIMS,
MARCH 5, 2019
REFERRED TO COMMITTEE ON JUDICIARY, MARCH 5, 2019
AN ACT
Amending Title 18 (Crimes and Offenses) of the Pennsylvania
Consolidated Statutes, in minors, providing for the offense
of sale of nicotine products and nicotine delivery products
to persons under 21 years of age.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 18 of the Pennsylvania Consolidated
Statutes is amended by adding a section to read:
§ 6305.1. Sale of nicotine products and nicotine delivery
products to persons under 21 years of age.
(a) Offense defined.--Except as set forth in subsection (f),
a person is guilty of a summary offense if the person:
(1) sells a nicotine product or nicotine delivery
product to anyone under 21 year of age;
(2) furnishes, by purchase, gift or other means, a
nicotine product or nicotine delivery product to a person
under 21 years of age;
(3) locates or places a vending machine containing a
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nicotine product or nicotine delivery product in a location
accessible to persons under 21 years of age; or
(4) displays or offers for sale nicotine products or
nicotine delivery products in any manner which enables an
individual other than the retailer or an employee of the
retailer to physically handle nicotine products or nicotine
delivery products prior to purchase unless the nicotine
products and nicotine delivery products are located within
the line of sight or under the control of a cashier or other
employee during business hours, except that this paragraph
shall not apply to retail stores which derive 75% or more of
sales revenues from nicotine products and nicotine delivery
products.
(b) Purchase.--A person under 21 years of age is guilty of a
summary offense if the person:
(1) purchases or attempts to purchase a nicotine product
or nicotine delivery product; or
(2) knowingly falsely represents himself to be at least
21 years of age to a person for the purpose of purchasing or
receiving a nicotine product or nicotine delivery product.
(c) Penalty.--
(1) Except as set forth in paragraph (2), a person that
violates subsection (a) shall be sentenced as follows:
(i) for a first offense, to pay a fine of not less
than $100 nor more than $250;
(ii) for a second offense, to pay a fine of not less
than $250 nor more than $500; or
(iii) for a third or subsequent offense, to pay a
fine of not less than $500 nor more than $1,000.
(2) A retailer that violates subsection (a) shall be
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sentenced as follows:
(i) for a first offense, to pay a fine of not less
than $100 nor more than $500;
(ii) for a second offense, to pay a fine of not less
than $500 nor more than $1,000;
(iii) for a third offense, to pay a fine of not less
than $1,000 nor more than $3,000; or
(iv) for a fourth or subsequent offense, to pay a
fine of not less than $3,000 nor more than $5,000.
(3) A person under 21 years of age who violates
subsection (b) shall be sentenced to any or all of the
following:
(i) not more than 75 hours of community service;
(ii) a fine not to exceed $200; or
(iii) a 30-day suspension of motor vehicle operating
privileges.
(d) Notification.--
(1) Upon issuing or filing a citation charging a minor
with a violation of subsection (b), the affiant shall notify
the parent or guardian of the minor charged.
(2) Upon imposing a sentence under subsection (c)(1) or
(2), a court shall notify the department of the violation
committed by the person if the person is a retailer or an
employee of a retailer and the person committed the violation
in the course of the person's employment.
(e) Nature of offense.--
(1) An offense under subsection (b) shall not be a
criminal offense of record, shall not be reportable as a
criminal act and shall not be placed on the criminal record
of the offender. The failure of a minor to comply with a
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sentence under subsection (c)(3) shall not constitute a
delinquent act under 42 Pa.C.S. Ch. 63 (relating to juvenile
matters).
(2) A record of participation in an adjudication
alternative program under subsection (f) shall be maintained
for purposes of determining subsequent eligibility for such a
program.
(3) Except as provided in subsection (g)(1), a retailer
is liable for the acts of its agents as permitted by section
307 (relating to liability of organizations and certain
related persons).
(f) Preadjudication disposition.--If a person is charged
with violating this section, the court may admit the offender to
the adjudication alternative program as authorized in 42 Pa.C.S.
§ 1520 (relating to adjudication alternative program) or any
other preadjudication disposition if the offender has not
previously received a preadjudication disposition for violating
this section. Accelerated Rehabilitative Disposition or any
other preadjudication alternative for a violation of subsection
(a) shall be considered an offense for the purposes of imposing
criminal penalties under subsection (c)(1) and (2).
(g) Exceptions.--
(1) The following affirmative defense is available:
(i) It is an affirmative defense for a retailer to
an offense under subsection (a)(1) and (2) that, prior to
the date of the alleged violation, the retailer has
complied with all of the following:
(A) Adopted and implemented a written policy
against selling nicotine products and nicotine
delivery products to persons under 21 years of age,
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which includes:
(I) A requirement that an employee ask an
individual who appears to be 25 years of age or
younger for a valid photo identification as proof
of age prior to making a sale of nicotine
products or nicotine delivery products.
(II) A list of all types of acceptable photo
identification.
(III) A list of factors to be examined in
the photo identification, including photo
likeness, birth date, expiration date, bumps,
tears or other damage and signature.
(IV) A requirement that, if the photo
identification is missing any of the items listed
in subclause (III), the photo identification is
not valid and cannot be accepted as proof of age
for the sale of nicotine products or nicotine
delivery products. A second photo identification
may be required to make the sale of nicotine
products or nicotine delivery products, with
questions referred to the manager.
(V) A disciplinary policy, which includes
employee counseling and suspension for failure to
require valid photo identification and dismissal
for repeat improper sales.
(B) Informed all employees selling nicotine
products and nicotine delivery products through an
established training program of the applicable
Federal and State laws regarding the sale of nicotine
products and nicotine delivery products.
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(C) Documented employee training indicating that
all employees selling nicotine products and nicotine
delivery products have been informed of and
understand the written policy referred to in clause
(A).
(D) Trained all employees selling nicotine
products and nicotine delivery products to verify
that the purchaser is at least 21 years of age before
selling nicotine products and nicotine delivery
products.
(E) Conspicuously posted a notice that selling
nicotine products and nicotine delivery products to a
person under 21 years of age is illegal, that the
purchase of nicotine products and nicotine delivery
products by a person under 21 years of age is illegal
and that a violator is subject to penalties.
(F) Established and implemented disciplinary
sanctions for noncompliance with the policy under
clause (A).
(ii) An affirmative defense under this paragraph
must be proved by a preponderance of the evidence.
(iii) An affirmative defense under this paragraph
may be used by a retailer no more than three times at
each retail location during any 24-month period.
(2) No more than one violation of subsection (a) per
person arises out of separate incidents which take place in a
24-hour period.
(3) It is not a violation of subsection (b)(1) for a
person under 21 years of age to purchase or attempt to
purchase a nicotine product or nicotine delivery product if
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all of the following apply:
(i) The person is at least 14 years of age.
(ii) The person is an employee, volunteer or intern
with:
(A) a State or local law enforcement agency;
(B) the Department of Health or a primary
contractor under Chapter 7 of the act of June 26,
2001 (P.L.755, No.77), known as the Tobacco
Settlement Act;
(C) a single county authority created under the
act of April 14, 1972 (P.L.221, No.63), known as the
Pennsylvania Drug and Alcohol Abuse Control Act;
(D) a county or municipal health department; or
(E) a retailer.
(iii) The person under 21 years of age is acting
within the scope of assigned duties as part of an
authorized investigation, compliance check under
subsection (h) or retailer-organized self-compliance
check.
(iv) The person under 21 years of age does not use
or consume a nicotine product or nicotine delivery
product.
(h) Compliance checks.--This subsection shall apply to
compliance checks conducted by the Department of Health, or a
county or municipal health department, for the purpose of
conducting retailer education, assessing compliance with Federal
or State law and enforcing the provisions of this section.
Compliance checks shall be conducted, at a minimum, in
accordance with all of the following:
(1) Compliance checks shall only be conducted in
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consultation with the Department of Health and the law
enforcement agency providing primary police services to the
municipality where the compliance check is being conducted.
(2) A minor participating in a compliance check must be
at least 14 years of age, complete a course of training
approved by the Department of Health and furnish the
Department of Health with a signed, written parental consent
agreement allowing the minor to participate in the compliance
check.
(3) A retailer that is found to be in compliance with
this section during a compliance check shall be notified in
writing of the compliance check and the determination of
compliance.
(4) Compliance checks conducted under this subsection
shall be in a manner consistent with this subsection and the
regulations as promulgated by the Department of Health.
(5) The Department of Health, or a county or municipal
health department, shall conduct a compliance check under
this subsection no more than once every 30 days at any one
retail location. This paragraph may not preclude the law
enforcement agency providing primary police services to the
municipality in which the retail store is located from
otherwise enforcing this section.
(6) Individuals participating in compliance checks under
this subsection may not be deemed employees under the act of
July 23, 1970 (P.L.563, No.195), known as the Public Employe
Relations Act, nor shall participating individuals be
considered policemen under the act of June 24, 1968 (P.L.237,
No.111), referred to as the Policemen and Firemen Collective
Bargaining Act.
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(i) Administrative action.--
(1) Upon receiving notice, in accordance with subsection
(d) or otherwise, of a third conviction of a retailer during
any 24-month period, the department may, after an opportunity
for a hearing, suspend the retailer's license issued under
sections 1223-A and 1224-A of the act of March 4, 1971
(P.L.6, No.2), known as the Tax Reform Code of 1971, for up
to 30 days. The department, in a hearing held under this
paragraph, has jurisdiction only to determine whether or not
the retailer was convicted of a violation of subsection (a).
The introduction of a certified copy of a conviction for a
violation of subsection (a) shall be sufficient evidence for
the suspension of the license issued under sections 1223-A
and 1224-A of the Tax Reform Code of 1971.
(2) Upon receiving notice, in accordance with subsection
(d) or otherwise, of a fourth conviction of a retailer during
any 24-month period, the department may, after an opportunity
for a hearing, revoke the retailer's license issued under
sections 1223-A and 1224-A of the Tax Reform Code of 1971 for
up to 60 days. The department, in a hearing held under this
paragraph, has jurisdiction only to determine whether or not
the retailer was convicted of a violation of subsection (a).
The introduction of a certified copy of a conviction for a
violation of subsection (a) shall be sufficient evidence for
the revocation of the license issued under sections 1223-A
and 1224-A of the Tax Reform Code of 1971.
(j) Enforcement.--An employee of the Department of Health, a
single county authority created under the Pennsylvania Drug and
Alcohol Abuse Control Act, a county or municipal health
department or a primary contractor under Chapter 7 of the
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Tobacco Settlement Act may institute a proceeding to enforce the
provisions of this section in accordance with any means
authorized by the Rules of Criminal Procedure. The enforcement
authority granted under this subsection may not be delegated.
(k) Other penalties.--Notwithstanding any other law to the
contrary, prosecution or conviction under this section may not
constitute a bar to any prosecution, penalty or administrative
action under any other applicable statutory provision.
(l) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Department." The Department of Revenue of the Commonwealth.
"Electronic cigarette." An electronic device that delivers
nicotine or other substances through vaporization and
inhalation.
"Minor." An individual under 18 years of age.
"Nicotine delivery product." A product or device used,
intended for use or designed for the purpose of ingesting a
nicotine product. The term includes an electronic cigarette.
"Nicotine product." A product that contains or consists of
nicotine in a form that can be ingested by chewing, smoking,
inhaling or any other means.
"Vending machine." A mechanical or electrical device from
which one or more tobacco products, nicotine products or
nicotine delivery products are dispensed for a consideration.
Section 2. This act shall take effect in 60 days.
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