Chapter 696 Oregon Laws 2001
AN ACT
SB 423
Relating to cigarette tax
law enforcement; creating new provisions; amending ORS 323.856 and 323.990 and
section 19, chapter 666, Oregon Laws 2001 (Enrolled House Bill 3642); and
prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 323.990 is amended to read:
323.990. (1) A civil
penalty may be imposed in the manner provided in ORS 183.090 on any person who
violates any provision of ORS 323.005 to 323.455. A civil penalty imposed under
this subsection may not exceed $1,000 per violation.
[(1)] (2)(a) Any person required to obtain a
license as a distributor under ORS 323.005 to 323.455 who, with the intent to defeat or evade the requirement that the person be
licensed, engages in business as a distributor without a license or after a
license has been canceled, suspended[,]
or revoked, and each officer of any corporation [which so] that engages
in business with that intent, is
guilty of a [misdemeanor, and upon
conviction thereof, shall be fined not more than $1,000, or shall be imprisoned
for not more than one year, or both, for each offense] Class C felony.
(b) This subsection
does not apply to a person who distributes fewer than 60,000 cigarettes.
[(2) Any person who
fails or refuses to file any report required to be made by ORS 323.005 to
323.455, or who fails or refuses to furnish a supplemental report or other data
required by the Department of Revenue under ORS 323.005 to 323.455, or who
renders a false report is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than $500 for each offense.]
(3) Any person required to make, render, sign or verify any
report under ORS 323.005 to 323.455[,]
who makes any false report with the
intent to defeat or evade [the
determination required by law to be made] any requirement imposed on the person by ORS 323.005 to 323.455 is
guilty of a [misdemeanor and, upon
conviction thereof, shall be fined not more than $5,000, or be imprisoned for
not exceeding one year in the county jail, or be subject to both fine and
imprisonment, in the discretion of the circuit court] Class C felony.
[(4) Any transporter
who violates the provisions of ORS 323.225 shall be guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than $1,000, or be
imprisoned for not exceeding one year in the county jail, or be subject to both
fine and imprisonment, in the discretion of the circuit court.]
(4)(a) Any
transporter who violates the provisions of ORS 323.225 with the intent to
defeat or evade a requirement imposed by ORS 323.225, or with the intent to aid
another to defeat or evade the determination or payment of a cigarette tax
imposed under ORS 323.005 to 323.455, is guilty of a Class C felony.
(b) This subsection does
not apply to a transporter who transports or possesses or acquires for the
purpose of transporting fewer than 60,000 cigarettes.
(5) Any person who violates any provisions of ORS 323.005
to 323.455, except as otherwise provided
in this section, with the intent to defeat or evade a requirement imposed on
the person by ORS 323.005 to 323.455, is guilty of a Class A misdemeanor [and,
upon conviction thereof, shall be fined not more than $500 for each offense].
(6) A person who
files a fraudulent refund claim under ORS 323.320 is guilty of a Class C
felony.
(7) In addition to any
other sentence the court may impose upon a conviction under this section, the
court may order the forfeiture of the instrumentalities used in violating this
section and the proceeds resulting from a violation of this section.
SECTION 2.
Section 3 of this 2001 Act is added to
and made a part of ORS 323.005 to 323.455.
SECTION 3.
(1) A person commits the crime of
unlawful distribution of cigarettes if the person knowingly sells or
distributes, possesses or transports for sale or distribution or imports for
sale or distribution cigarettes that do not comply with ORS 323.005 to 323.455
or 323.850 to 323.862, the Federal Cigarette Labeling and Advertising Act (15
U.S.C. 1331 et seq.), 19 U.S.C. 1681a or section 5754 of the Internal Revenue
Code, or implementing regulations of the federal laws listed in this
subsection.
(2) Unlawful
distribution of cigarettes is a Class A misdemeanor.
(3) Cigarettes sold,
distributed, possessed, transported or imported in violation of subsection (1)
of this section are contraband and subject to seizure. If seized under this
subsection, the cigarettes shall be destroyed.
(4) In addition to any
other sentence the court may impose upon a conviction under this section, the
court may order the forfeiture of the instrumentalities used in violating this
section and the proceeds resulting from a violation of this section.
(5) A person who
manufactures, distributes or sells cigarettes and who sustains a direct
economic or commercial injury as a result of a violation of subsection (1) of
this section may bring in good faith an action for appropriate injunctive
relief.
(6) The penalties set
forth in this section are in addition to and not in lieu of any other
applicable penalties or sanctions.
SECTION 4.
ORS 323.856 is amended to read:
323.856. (1) No tax stamp may be affixed to, or made upon,
any package of cigarettes if:
(a) The package differs in any respect from all the
requirements of the Federal Cigarette Labeling and Advertising Act (15 U.S.C.
1331 et seq.) on October 23, 1999, for the placement of labels, warnings or any
other information upon a package of cigarettes that is to be sold within the
United States;
(b) The package has been imported into the United States [after January 1, 2000,] in violation of
26 U.S.C. 5754 or 19 U.S.C. 1681a, or
implementing regulations of the federal laws listed in this paragraph;
(c) The package is labeled “For Export Only,” “U.S. Tax
Exempt,” “For Use Outside U.S.” or similar wording indicating that the
manufacturer did not intend that the product be sold in the United States; or
(d) The package, or package containing individually stamped
packages, has been altered by adding, masking or deleting the wording described
in paragraph (c) of this subsection.
(2) Any person who sells or holds for sale cigarette
packages to which are affixed a tax stamp in violation of this section commits
the same offense as possessing or selling cigarettes without a tax stamp.
(3) The Department of Justice shall notify the Department
of Revenue in writing when a determination has been made that a cigarette
distributor, on or after the date specified in the notice issued under ORS
323.859, has sold or held for resale cigarette packages to which a stamp has
been affixed in violation of this section. Upon notification of such violation,
the Department of Revenue shall automatically suspend the license of the
cigarette distributor for a period of 90 days. Upon determination by the
Department of Justice of any subsequent violation of this section by the
distributor, the Department of Revenue shall revoke the distributor’s license
consistent with the provisions of ORS 323.140.
(4) On or after the date specified in the notice issued
under ORS 323.859, the Oregon State Police or any other law enforcement agency
may seize or, acting in coordination with the Department of Revenue, destroy or
sell back for destruction or export only to the manufacturer or licensed
exporter “only to export” cigarette packages to which is affixed a tax stamp in
violation of this section. Notwithstanding the provisions of ORS 323.320, the
Department of Revenue shall not refund or credit to a distributor the
denominated value of tax stamps when such seizure, destruction or sale back to
the manufacturer has occurred.
(5) A violation of this section is an unlawful practice
under ORS 646.605 to 646.652.
SECTION 5.
If House Bill 3642 becomes law, section 19, chapter 666, Oregon Laws 2001
(Enrolled House Bill 3642), is amended to read:
Sec. 19. The
crimes to which section 1 (11)(b),
chapter 666, Oregon Laws 2001 (Enrolled House Bill 3642), [of this 2001 Act] applies are:
(1) Bribe giving, as defined in ORS 162.015.
(2) Bribe receiving, as defined in ORS 162.025.
(3) Public investment fraud, as defined in ORS 162.117.
(4) Bribing a witness, as defined in ORS 162.265.
(5) Bribe receiving by a witness, as defined in ORS
162.275.
(6) Simulating legal process, as defined in ORS 162.355.
(7) Official misconduct in the first degree, as defined in
ORS 162.415.
(8) Custodial interference in the second degree, as defined
in ORS 163.245.
(9) Custodial interference in the first degree, as defined
in ORS 163.257.
(10) Buying or selling a person under 18 years of age, as
defined in ORS 163.537.
(11) Using a child in a display of sexually explicit
conduct, as defined in ORS 163.670.
(12) Encouraging child sexual abuse in the first degree, as
defined in ORS 163.684.
(13) Encouraging child sexual abuse in the second degree,
as defined in ORS 163.686.
(14) Encouraging child sexual abuse in the third degree, as
defined in ORS 163.687.
(15) Possession of materials depicting sexually explicit
conduct of a child in the first degree, as defined in ORS 163.688.
(16) Possession of materials depicting sexually explicit
conduct of a child in the second degree, as defined in ORS 163.689.
(17) Theft in the second degree, as defined in ORS 164.045.
(18) Theft in the first degree, as defined in ORS 164.055.
(19) Aggravated theft in the first degree, as defined in
ORS 164.057.
(20) Theft by extortion, as defined in ORS 164.075.
(21) Theft by deception, as defined in ORS 164.085, if it
is a felony or a Class A misdemeanor.
(22) Theft by receiving, as defined in ORS 164.095, if it
is a felony or a Class A misdemeanor.
(23) Theft of services, as defined in ORS 164.125, if it is
a felony or a Class A misdemeanor.
(24) Unauthorized use of a vehicle, as defined in ORS
164.135.
(25) Mail theft or receipt of stolen mail, as defined in
ORS 164.162.
(26) Laundering a monetary instrument, as defined in ORS
164.170.
(27) Engaging in a financial transaction in property
derived from unlawful activity, as defined in ORS 164.172.
(28) Burglary in the second degree, as defined in ORS
164.215.
(29) Burglary in the first degree, as defined in ORS
164.225.
(30) Possession of burglar’s tools, as defined in ORS
164.235.
(31) Unlawful entry into a motor vehicle, as defined in ORS
164.272.
(32) Arson in the second degree, as defined in ORS 164.315.
(33) Arson in the first degree, as defined in ORS 164.325.
(34) Computer crime, as defined in ORS 164.377.
(35) Robbery in the third degree, as defined in ORS
164.395.
(36) Robbery in the second degree, as defined in ORS
164.405.
(37) Robbery in the first degree, as defined in ORS
164.415.
(38) Unlawful labeling of a sound recording, as defined in
ORS 164.868.
(39) Unlawful recording of a live performance, as defined
in ORS 164.869.
(40) Unlawful labeling of a videotape recording, as defined
in ORS 164.872.
(41) A violation of ORS 164.877.
(42) Endangering aircraft, as defined in ORS 164.885.
(43) Interference with agricultural operations, as defined
in ORS 164.887.
(44) Forgery in the second degree, as defined in ORS
165.007.
(45) Forgery in the first degree, as defined in ORS
165.013.
(46) Criminal possession of a forged instrument in the
second degree, as defined in ORS 165.017.
(47) Criminal possession of a forged instrument in the
first degree, as defined in ORS 165.022.
(48) Criminal possession of a forgery device, as defined in
ORS 165.032.
(49) Criminal simulation, as defined in ORS 165.037.
(50) Fraudulently obtaining a signature, as defined in ORS
165.042.
(51) Fraudulent use of a credit card, as defined in ORS
165.055.
(52) Negotiating a bad check, as defined in ORS 165.065.
(53) Possessing a fraudulent communications device, as
defined in ORS 165.070.
(54) Unlawful factoring of a credit card transaction, as
defined in ORS 165.074.
(55) Falsifying business records, as defined in ORS
165.080.
(56) Sports bribery, as defined in ORS 165.085.
(57) Sports bribe receiving, as defined in ORS 165.090.
(58) Misapplication of entrusted property, as defined in
ORS 165.095.
(59) Issuing a false financial statement, as defined in ORS
165.100.
(60) Obtaining execution of documents by deception, as
defined in ORS 165.102.
(61) A violation of ORS 165.543.
(62) Cellular counterfeiting in the third degree, as
defined in ORS 165.577.
(63) Cellular counterfeiting in the second degree, as
defined in ORS 165.579.
(64) Cellular counterfeiting in the first degree, as
defined in ORS 165.581.
(65) Identity theft, as defined in ORS 165.800.
(66) A violation of ORS 166.190.
(67) Unlawful use of a weapon, as defined in ORS 166.220.
(68) A violation of ORS 166.240.
(69) Unlawful possession of a firearm, as defined in ORS
166.250.
(70) A violation of ORS 166.270.
(71) Unlawful possession of a machine gun, short-barreled
rifle, short-barreled shotgun or firearms silencer, as defined in ORS 166.272.
(72) A violation of ORS 166.275.
(73) Unlawful possession of armor piercing ammunition, as
defined in ORS 166.350.
(74) A violation of ORS 166.370.
(75) Unlawful possession of a destructive device, as
defined in ORS 166.382.
(76) Unlawful manufacture of a destructive device, as
defined in ORS 166.384.
(77) Possession of a hoax destructive device, as defined in
ORS 166.385.
(78) A violation of ORS 166.410.
(79) Providing false information in connection with a
transfer of a handgun, as defined in ORS 166.416.
(80) Improperly transferring a handgun, as defined in ORS
166.418.
(81) Unlawfully purchasing a firearm, as defined in ORS
166.425.
(82) A violation of ORS 166.429.
(83) A violation of ORS 166.470.
(84) A violation of ORS 166.480.
(85) A violation of ORS 166.635.
(86) A violation of ORS 166.638.
(87) Unlawful paramilitary activity, as defined in ORS
166.660.
(88) A violation of ORS 166.720.
(89) Prostitution, as defined in ORS 167.007.
(90) Promoting prostitution, as defined in ORS 167.012.
(91) Compelling prostitution, as defined in ORS 167.017.
(92) Exhibiting an obscene performance to a minor, as
defined in ORS 167.075.
(93) Unlawful gambling in the second degree, as defined in
ORS 167.122.
(94) Unlawful gambling in the first degree, as defined in
ORS 167.127.
(95) Possession of gambling records in the second degree,
as defined in ORS 167.132.
(96) Possession of gambling records in the first degree, as
defined in ORS 167.137.
(97) Possession of a gambling device, as defined in ORS
167.147.
(98) Possession of a gray machine, as defined in ORS
167.164.
(99) Cheating, as defined in ORS 167.167.
(100) Tampering with drug records, as defined in ORS
167.212.
(101) A violation of ORS 167.262.
(102) Research and animal interference, as defined in ORS
167.312.
(103) Animal abuse in the first degree, as defined in ORS
167.320.
(104) Aggravated animal abuse in the first degree, as
defined in ORS 167.322.
(105) Animal neglect in the first degree, as defined in ORS
167.330.
(106) Interfering with an assistance, a search and rescue
or a therapy animal, as defined in ORS 167.352.
(107) Involvement in animal fighting, as defined in ORS
167.355.
(108) Dogfighting, as defined in ORS 167.365.
(109) Participation in dogfighting, as defined in ORS
167.370.
(110) Unauthorized use of a livestock animal, as defined in
ORS 167.385.
(111) Interference with livestock production, as defined in
ORS 167.388.
(112) A violation of ORS 167.390.
(113) A violation of ORS 471.410.
(114) Failure to report missing precursor substances, as
defined in ORS 475.955.
(115) Illegally selling drug equipment, as defined in ORS
475.960.
(116) Providing false information on a precursor substances
report, as defined in ORS 475.965.
(117) Unlawful delivery of an imitation controlled
substance, as defined in ORS 475.991.
(118) A violation of ORS 475.992, if it is a felony or a
Class A misdemeanor.
(119) A violation of ORS 475.993, if it is a felony or a
Class A misdemeanor.
(120) A violation of ORS 475.994.
(121) A violation of ORS 475.995, if it is a felony or a
Class A misdemeanor.
(122) A violation of ORS 475.999 (1)(a).
(123) Misuse of an identification card, as defined in ORS
807.430.
(124) Unlawful production of identification cards,
licenses, permits, forms or camera cards, as defined in ORS 807.500.
(125) Transfer of documents for the purposes of
misrepresentation, as defined in ORS 807.510.
(126) Using an invalid license, as defined in ORS 807.580.
(127) Permitting misuse of a license, as defined in ORS
807.590.
(128) Using another’s license, as defined in ORS 807.600.
(129) Criminal driving while suspended or revoked, as
defined in ORS 811.182, when it is a felony.
(130) Driving while under the influence of intoxicants, as
defined in ORS 813.010, when it is a felony.
(131) Unlawful
distribution of cigarettes, as defined in section 3 of this 2001 Act.
[(131)] (132) An attempt, conspiracy or
solicitation to commit a crime in subsections (1) to [(130)] (131) of this
section if the attempt, conspiracy or solicitation is a felony or a Class A
misdemeanor.
SECTION 6.
This 2001 Act takes effect on the 91st
day after the date on which the regular session of the Seventy-first
Legislative Assembly adjourns sine die.
Approved by the Governor
July 2, 2001
Filed in the office of
Secretary of State July 2, 2001
Effective date October 6,
2001
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