72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2815
House Bill 2753
Sponsored by Representative NELSON (at the request of Kelly Van
Hook)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Creates crime of unlawful tobacco sales to persons under 21
years of age. Punishes violation by maximum fine of $600.
Increases age for illegal purchase or possession of tobacco
products from 18 years of age to 21 years of age.
A BILL FOR AN ACT
Relating to tobacco products; creating new provisions; and
amending ORS 163.575, 163.580, 165.800, 167.400, 167.401,
167.402, 167.404, 339.865, 431.840 and 431.853.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 167.400 is amended to read:
167.400. (1) { + Except when such person is in a private
residence accompanied by the parent or guardian of the person and
with the consent of the parent or guardian, + } it is unlawful
for any person under { - 18 - } { + 21 + } years of age to
possess tobacco products, as defined in ORS 431.840.
(2) Any person who violates subsection (1) of this section
commits a Class D violation.
SECTION 2. ORS 167.401 is amended to read:
167.401. (1) Except as provided in subsection (4) of this
section, no person under { - 18 - } { + 21 + } years of age
shall purchase, attempt to purchase or acquire tobacco products
as defined in ORS 431.840. { - Except when such minor is in a
private residence accompanied by the parent or guardian of the
minor and with the consent of such parent or guardian, no person
under 18 years of age shall have personal possession of tobacco
products. - }
(2) Any person who violates subsection (1) of this section
commits a violation.
(3)(a) In lieu of any other penalty established by law, a
person who is convicted for the first time of a violation of
subsection (1) of this section { + or ORS 167.400 + } may be
ordered to participate in a tobacco education program or a
tobacco use cessation program or to perform community service
related to diseases associated with consumption of tobacco
products. A person may be ordered to participate in such a
program only once.
(b) In addition to and not in lieu of any other penalty
established by law, a person who is convicted of a second
violation of subsection (1) of this section { + or ORS
167.400 + }
{ - through misrepresentation of age - } may be required to
participate in a tobacco education or a tobacco use cessation
program or to perform community service related to diseases
associated with the consumption of tobacco products, and the
court shall order that the person's driving privileges and right
to apply for driving privileges be suspended for a period not to
exceed one year. If a court has issued an order denying driving
privileges under this subsection, the court, upon petition of the
person, may withdraw the order at any time the court deems
appropriate. The court notification to the Department of
Transportation under this subsection may include a recommendation
that the person be granted a hardship permit under ORS 807.240 if
the person is otherwise eligible for the permit.
(4) A { - minor - } { + person under 21 years of age
+ }acting under the supervision of an adult may purchase,
attempt to purchase or acquire tobacco products for the purpose
of testing compliance with a federal law, state statute, local
law or retailer management policy limiting or regulating the
delivery of tobacco products to { - minors - } { + persons
under 21 years of age + }.
SECTION 3. ORS 167.402 is amended to read:
167.402. (1) No person having authority over such placement
shall locate a vending machine from which tobacco products, as
defined in ORS 431.840, in any form are dispensed in any place
legally accessible to persons under { - 18 - } { + 21 + }
years of age except taverns and cocktail lounges, industrial
plants, as defined in ORS 308.408, hotels and motels.
(2) Violation of subsection (1) of this section is a Class B
violation. Each day of violation constitutes a separate offense.
SECTION 4. ORS 167.404 is amended to read:
167.404. Cities and counties by ordinance or resolution shall
not regulate vending machines that dispense tobacco products, as
defined in ORS 431.840, in any form and that are in any manner
accessible to { - minors - } { + persons under 21 years of
age + }.
SECTION 5. ORS 163.575 is amended to read:
163.575. (1) A person commits the crime of endangering the
welfare of a minor if the person knowingly:
(a) Induces, causes or permits an unmarried person under 18
years of age to witness an act of sexual conduct or
sadomasochistic abuse as defined by ORS 167.060; { - or - }
(b) Permits a person under 18 years of age to enter or remain
in a place where unlawful activity involving controlled
substances is maintained or conducted; { - or - }
(c) Induces, causes or permits a person under 18 years of age
to participate in gambling as defined by ORS 167.117; or
{ - (d) Distributes, sells, or causes to be sold, tobacco in
any form to a person under 18 years of age; or - }
{ - (e) - } { + (d) + } Sells to a person under 18 years of
age any device in which tobacco, marijuana, cocaine or any
controlled substance, as defined in ORS 475.005, is burned and
the principal design and use of which is directly or indirectly
to deliver tobacco smoke, marijuana smoke, cocaine smoke or smoke
from any controlled substance into the human body including but
not limited to:
(A) Pipes, water pipes, hookahs, wooden pipes, carburetor
pipes, electric pipes, air driven pipes, corncob pipes,
meerschaum pipes and ceramic pipes, with or without screens,
permanent screens, hashish heads or punctured metal bowls;
(B) Carburetion tubes and devices, including carburetion masks;
(C) Bongs;
(D) Chillums;
(E) Ice pipes or chillers;
(F) Cigarette rolling papers and rolling machines; and
(G) Cocaine free basing kits.
(2) Endangering the welfare of a minor by violation of
subsection (1)(a), (b), (c) or { - (e) - } { + (d) + } of
this section, involving other than a device for smoking tobacco,
is a Class A misdemeanor.
(3) Endangering the welfare of a minor by violation of
subsection (1)(d) of this section { - or by violation of
subsection (1)(e) of this section - } , involving a device for
smoking tobacco, is a Class A violation and the court shall
impose a fine of not less than $100.
SECTION 6. ORS 431.840 is amended to read:
431.840. (1) It shall be unlawful to do any of the following:
(a) To distribute free tobacco products to persons under
{ - 18 - } { + 21 + } years of age as part of a marketing
strategy to encourage the use of tobacco products.
(b) To fail as a retailer to post a notice substantially
similar to that set forth in subsection (3) of this section in a
location clearly visible to the seller and the purchaser that
sale of tobacco products to persons under { - 18 - } { +
21 + } years of age is prohibited.
(c) To sell cigarettes in any form other than a sealed package.
(2) As used in this section 'tobacco products' means bidis,
cigars, cheroots, stogies, periques, granulated, plug cut, crimp
cut, ready rubbed and other smoking tobacco, snuff, snuff flour,
cavendish, plug and twist tobacco, fine-cut and other chewing
tobaccos, shorts, refuse scraps, clippings, cuttings and
sweepings of tobacco and other kinds and forms of tobacco,
prepared in such manner as to be suitable for chewing or smoking
in a pipe or otherwise, or both for chewing and smoking, and
shall include cigarettes as defined in ORS 323.010 (1).
(3) The notice shall be substantially as follows:
_________________________________________________________________
NOTICE
The sale of tobacco in any form to persons under { - 18 - }
{ + 21 + } years of age is prohibited by law. { + Any person
who knowingly sells, or causes to be sold, tobacco to a person
under 21 years of age commits the crime of unlawful tobacco sales
under section 8 of this 2003 Act. + } { - Any person who
knowingly sells, or causes to be sold, tobacco to a person under
18 years of age commits the crime of endangering the welfare of a
minor, pursuant to ORS 163.575. - }
_________________________________________________________________
SECTION 7. ORS 431.853 is amended to read:
431.853. (1) The Department of Human Services shall:
(a) Coordinate with law enforcement agencies to conduct random,
unannounced inspections of Oregon wholesalers and retailers of
tobacco products to insure compliance with Oregon laws designed
to discourage the use of tobacco by { - minors - } { +
persons under 21 years of age + } including ORS
{ - 163.575, - } 163.580, 167.400, { + 167.401, + } 167.402
and 431.840 { + and section 8 of this 2003 Act + }; and
(b) Submit a report describing:
(A) The activities carried out to enforce the laws listed in
paragraph (a) of this subsection during the previous fiscal year;
(B) The extent of success achieved in reducing the availability
of tobacco products to { - minors - } { + persons under 21
years of age + }; and
(C) The strategies to be utilized for enforcing the laws listed
in paragraph (a) of this subsection during the year following the
report.
(2) The Department of Human Services shall adopt rules
concerning random inspections of places that sell tobacco
products consistent with section 1921, Public Law 102-321, 1992.
The rules shall provide that inspections may take place:
(a) Only in areas open to the public;
(b) Only during hours that tobacco products are sold or
distributed; and
(c) No more frequently than once a month in any single
establishment unless a compliance problem exists or is suspected.
SECTION 8. { + (1) A person commits the crime of unlawful
tobacco sales if the person knowingly distributes, sells or
causes to be sold tobacco in any form to a person under 21 years
of age.
(2) Unlawful tobacco sales is a Class A violation and the court
shall impose a fine of not less than $100. + }
SECTION 9. ORS 163.580 is amended to read:
163.580. (1) Any person who sells any of the smoking devices
listed in ORS 163.575 { - (1)(e) - } { + (1)(d) + } shall
display a sign clearly stating that the sale of such devices to
persons under 18 years of age is prohibited by law.
(2) Any person who violates this section commits a Class B
violation.
SECTION 10. ORS 165.800 is amended to read:
165.800. (1) A person commits the crime of identity theft if
the person, with the intent to deceive or to defraud, obtains,
possesses, transfers, creates, utters or converts to the person's
own use the personal identification of another person.
(2) Identity theft is a Class C felony.
(3) It is an affirmative defense to violating subsection (1) of
this section that the person charged with the offense:
(a) Was under 21 years of age at the time of committing the
offense and the person used the personal identification of
another person solely for the purpose of purchasing alcohol;
(b) Was under { - 18 - } { + 21 + } years of age at the
time of committing the offense and the person used the personal
identification of another person solely for the purpose of
purchasing tobacco products; or
(c) Used the personal identification of another person solely
for the purpose of misrepresenting the person's age to gain
access to a:
(A) Place the access to which is restricted based on age; or
(B) Benefit based on age.
(4) As used in this section:
(a) 'Another person' means a real or imaginary person.
(b) 'Personal identification' includes, but is not limited to,
any written document or electronic data that does, or purports
to, provide information concerning:
(A) A person's name, address or telephone number;
(B) A person's driving privileges;
(C) A person's Social Security number or tax identification
number;
(D) A person's citizenship status or alien identification
number;
(E) A person's employment status, employer or place of
employment;
(F) The identification number assigned to a person by a
person's employer;
(G) The maiden name of a person or a person's mother;
(H) The identifying number of a person's depository account at
a financial institution, as defined in ORS 706.008, or a credit
card account;
(I) A person's signature or a copy of a person's signature;
(J) A person's electronic mail name, electronic mail signature,
electronic mail address or electronic mail account;
(K) A person's photograph;
(L) A person's date of birth; and
(M) A person's personal identification number.
SECTION 11. ORS 339.865 is amended to read:
339.865. (1) A facility shall not permit any person under
{ - 18 - } { + 21 + } years of age to possess tobacco
products, as defined in ORS 431.840, while the person is present
on facility grounds or in facility buildings or attending
facility-sponsored activities.
(2) The facility must have written policies prohibiting the
possession of tobacco products described in subsection (1) of
this section by persons under { - 18 - } { + 21 + } years of
age. The facility must have written plans to implement such
policies.
(3) This section does not apply to any person for whom a
tobacco or nicotine product has been lawfully prescribed.
(4) As used in this section, 'facility' means public or private
schools, youth correction facilities or juvenile detention
facilities. 'Facility' does not include colleges or universities,
professional technical schools or community colleges.
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