71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
Senate Bill 423
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor John A. Kitzhaber,
M.D., for Department of Revenue)
CHAPTER ................
AN ACT
Relating to cigarette tax law enforcement; creating new
provisions; amending ORS 323.856 and 323.990 and section 19,
chapter ___, 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
Enrolled Senate Bill 423 (SB 423-C) Page 1
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:
Enrolled Senate Bill 423 (SB 423-C) Page 2
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
___, Oregon Laws 2001 (Enrolled House Bill 3642), is amended to
read:
{ + Sec. 19. + } The crimes to which section 1 (11)(b) { + ,
chapter ___, 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.
Enrolled Senate Bill 423 (SB 423-C) Page 3
(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.
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(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.
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(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.
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(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. + }
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Passed by Senate May 16, 2001
Repassed by Senate June 20, 2001
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 18, 2001
...........................................................
Speaker of House
Enrolled Senate Bill 423 (SB 423-C) Page 7
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled Senate Bill 423 (SB 423-C) Page 8