74th OREGON LEGISLATIVE ASSEMBLY--2007 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 1883
House Bill 2471
Sponsored by Representative BUTLER
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.
Prohibits sales of tobacco products without tobacco vending
license. Directs Oregon Liquor Control Commission to issue
tobacco vending license to qualified persons upon application and
payment of fee. Prohibits sales of tobacco products to persons
under 18 years of age and requires vendors to request
identification from persons who appear to be younger than 26
years of age. Requires vendors to post notices concerning
prohibition of sales to minors. Permits Oregon Liquor Control
Commission to suspend or revoke tobacco vending license for
certain reasons. Prohibits sales of tobacco products in certain
instances. Grants Oregon Liquor Control Commission rulemaking
authority and certain powers to implement and enforce Act.
Provides for civil penalty of not more than $1,000 for
violation of Act and state laws related to tobacco product sales
in addition to other existing fines and penalties.
Takes effect on 91st day following adjournment sine die.
A BILL FOR AN ACT
Relating to sales of tobacco products; creating new provisions;
amending ORS 167.401, 167.402, 167.404, 339.865, 431.853 and
471.805; repealing ORS 167.400, 431.840, 431.845 and 431.850;
and prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 15 of this 2007
Act: + }
{ + (1) 'Licensee' means a person licensed as a tobacco
vendor under section 4 of this 2007 Act.
(2) 'Sell' includes an offer to sell and the keeping or display
of tobacco products intended for sale.
(3) 'Tobacco product' means:
(a) Cigarettes as defined in ORS 323.010;
(b) Cigars, cheroots, stogies and periques;
(c) Granulated, plug cut, crimp cut, ready rubbed and other
smoking tobacco;
(d) Snuff, snuff flour, cavendish, plug and twist tobacco,
fine-cut and other chewing tobaccos;
(e) Shorts, refuse scraps, clippings, cuttings and sweepings of
tobacco;
(f) Other kinds and forms of tobacco, prepared in such a manner
as to be suitable for chewing or smoking in a pipe or otherwise,
or both for chewing and smoking; and
(g) Devices listed in ORS 163.575 (1)(e).
(4) 'Tobacco vending license' means a license issued under
section 4 of this 2007 Act. + }
SECTION 2. { + A person may not sell a tobacco product at
retail unless the person possesses a tobacco vending license
issued by the Oregon Liquor Control Commission under section 4 of
this 2007 Act. + }
SECTION 3. { + (1) An applicant for a tobacco vending license
shall pay the fee established by the Oregon Liquor Control
Commission under section 4 of this 2007 Act and shall show to the
satisfaction of the commission that the applicant is a person 18
years of age or older. The application for a tobacco vending
license shall disclose all locations at which the applicant will
sell tobacco at retail, including the location of all tobacco
vending machines that the applicant will operate under the
license. The applicant shall provide a mailing address for the
applicant's principal place of business.
(2) The commission shall require all applicants for a tobacco
vending license to review the laws relating to the sale of
tobacco, with particular emphasis on laws relating to sales of
tobacco to minors. + }
SECTION 4. { + (1) After the applicant pays the fee
established under this section, the Oregon Liquor Control
Commission shall issue a license to each applicant that meets the
requirements of section 3 of this 2007 Act. The license shall be
effective for one year following issuance.
(2) Subject to the provisions of ORS 291.050 to 291.060, the
commission shall establish fees for the issuance and renewal of a
tobacco vending license. The commission shall set the fees at a
rate such that the aggregate of moneys received from licensing
fees is adequate to pay the cost of administering the licensing
program established by sections 1 to 15 of this 2007 Act and the
cost of enforcing and investigating violations of the laws of
this state related to sales of tobacco products. + }
SECTION 5. { + (1) A licensee shall notify the Oregon Liquor
Control Commission in writing whenever the licensee changes any
place where the licensee sells tobacco products or changes the
mailing address for the licensee's place of business and shall
provide a current mailing address and a list of all current sales
locations.
(2) The commission shall keep a record of the places where
licensees sell tobacco products.
(3) The commission may give any required notice to the licensee
by mailing the notice to the mailing address that the licensee
last provided. + }
SECTION 6. { + A licensee or an employee or agent of the
licensee shall request identification from a person who appears
to the licensee or to the agent or employee of the licensee to be
younger than 26 years of age before the licensee or the agent or
employee of the licensee sells the person a tobacco product. The
identification must show the person's age and must bear the
photograph and signature of the person. The form of the
identification may include a state driver license, a state driver
permit, an identification card issued under ORS 807.400, a
passport, a United States military identification card or a
Merchant Marine identification card issued by the United States
Coast Guard. + }
SECTION 7. { + (1) A licensee must conspicuously post a copy
of the licensee's tobacco vending license in public view in all
places where the licensee sells tobacco products at retail.
(2) The licensee must display a sign to notify prospective
purchasers of tobacco products that sales of tobacco products to
minors are prohibited. The sign must be posted so that it is
clearly visible to anyone purchasing tobacco products from the
licensee and must read substantially as follows: + }
________________________________________________________________
{ + THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER AGE 18 IS
STRICTLY PROHIBITED BY STATE LAW. ANY PERSON WHO KNOWINGLY SELLS
TOBACCO OR CAUSES TOBACCO TO BE SOLD TO A PERSON UNDER 18 YEARS
OF AGE COMMITS THE CRIME OF ENDANGERING THE WELFARE OF A MINOR,
PURSUANT TO ORS 163.575. IF YOU ARE UNDER 18, YOU COULD BE
PENALIZED FOR PURCHASING A TOBACCO PRODUCT. PHOTO ID MAY BE
REQUIRED. + }
________________________________________________________________
SECTION 8. { + (1) The Oregon Liquor Control Commission may
revoke or suspend for a fixed period of time a licensee's tobacco
vending license if:
(a) The licensee, in the application for the license or in any
written or oral communication to the commission concerning the
issuance, retention or renewal of the license, makes any material
misstatement of fact or fails to disclose any material fact
necessary to make the licensee's statement not misleading;
(b) The licensee permits another person to use the license;
(c) The licensee fails to properly supervise or control
employees or agents that sell tobacco products under the license;
(d) The licensee is convicted of a crime in which the criminal
activity bears a direct relationship to sales of tobacco
products; or
(e) The licensee violates any of the provisions of sections 1
to 15 of this 2007 Act, any law relating to sales of tobacco
products, including ORS 163.575, 163.580, 167.401, 167.402 and
167.407 or any rule adopted by a state agency relating to sales
of tobacco products.
(2) The commission may choose to place the licensee on
probation, by which action the commission may restrict or
condition the licensee's ability to sell tobacco products under
the licensee's existing license or condition the renewal of the
license on the licensee's taking specified actions to comply with
the laws of this state or a rule or order of a state agency
relating to sales of tobacco products. + }
SECTION 9. { + (1) A person may not sell cigarettes, as
defined in ORS 323.010, that are not in the original unopened
package or container. Cigarettes as defined in ORS 323.010 may
not be sold in packages of fewer than 20 cigarettes.
(2) A person may not give or distribute tobacco products to
another person through the use of a coupon if the coupon is
redeemed in any manner that does not require a person-to-person
transaction in a retail store.
(3) A person may not distribute or offer to distribute samples
of tobacco products and may not distribute free tobacco products
to persons under 18 years of age as part of a marketing strategy
to encourage the use of tobacco products.
(4) All retail sales of tobacco products must be made on a
person-to-person basis except for sales made through vending
machines. Tobacco products may not be sold or delivered through
the mail. + }
SECTION 10. { + If the Oregon Liquor Control Commission
refuses to issue or renew a tobacco vending license or proposes
to revoke or suspend a tobacco vending license, the commission
shall accord the applicant or licensee a hearing under ORS
183.413 to 183.470. + }
SECTION 11. { + In administering the provisions of sections 1
to 15 of this 2007 Act, the Oregon Liquor Control Commission:
(1) May authorize all disbursements necessary to carry out
sections 1 to 15 of this 2007 Act.
(2) Shall issue a tobacco vending license to persons applying
to the commission that have qualified for the license.
(3) May suspend or revoke tobacco vending licenses in the
manner provided in ORS 183.310 to 183.497.
(4) May authorize officers, inspectors and investigators
employed by the commission to enforce the laws of this state
relating to sales of tobacco products, including ORS 163.575,
163.580, 167.401, 167.402 and 167.407. The officers, inspectors
and investigators employed by the commission shall have the
authority described in ORS 471.775 and in addition may issue
citations for violations of ORS 163.575, 163.580, 167.401,
167.402 and 167.407.
(5) May adopt rules necessary to implement the provisions of
sections 1 to 15 of this 2007 Act and to enforce the laws of this
state relating to sales of tobacco products, including ORS
163.575, 163.580, 167.401, 167.402 and 167.407. + }
SECTION 12. { + Officers, inspectors and investigators
employed by the Oregon Liquor Control Commission and any peace
officer, for the purpose of enforcing sections 1 to 15 of this
2007 Act and any state law related to the sale of tobacco
products, may:
(1) Enter any place of business where tobacco products are
sold;
(2) Detain for a reasonable period of time any person that the
officer has observed attempting to purchase, purchasing, or
possessing a tobacco product if the officer has reasonable
grounds to believe that the person is under 18 years of age and
if the officer detains the person in a reasonable manner for the
purpose of determining the person's true identity and date of
birth; and
(3) Seize as contraband any tobacco products possessed by
persons under 18 years of age. + }
SECTION 13. { + The Oregon Liquor Control Commission may
impose a civil penalty not to exceed $1,000 for violation of ORS
163.575, 163.580, 167.401, 167.402 or 167.407 or section 2, 5, 6,
7 or 9 of this 2007 Act, or any rule that the commission adopts
to implement sections 1 to 15 of this 2007 Act. If the commission
imposes a civil penalty under this section, the commission shall
do so as provided in ORS 183.745. Any civil penalty imposed under
this section is in addition to any other penalty that may be
imposed for violation of ORS 163.575, 163.580, 167.401, 167.402
or 167.407 or section 2, 5, 6, 7 or 9 of this 2007 Act. + }
SECTION 14. { + All moneys that the Oregon Liquor Control
Commission receives under sections 1 to 15 of this 2007 Act shall
be remitted monthly to the State Treasurer, who shall credit the
moneys as provided in ORS 471.805. + }
SECTION 15. { + Violation of section 2, 6, 7 or 9 of this 2007
Act is a Class A violation. + }
SECTION 16. ORS 431.853 is amended to read:
431.853. (1) The { - Department of Human Services - } { +
Oregon Liquor Control Commission + } shall:
(a) Coordinate with law enforcement agencies to conduct random,
unannounced inspections of Oregon wholesalers and retailers of
tobacco products to { - insure - } { + ensure + } compliance
with Oregon laws designed to discourage the use of tobacco by
minors including ORS 163.575, 163.580, { - 167.400, - }
167.402 { - and 431.840 - } { + and sections 1 to 15 of this
2007 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; 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 - } { + Oregon
Liquor Control Commission + } 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 17. ORS 167.401 is amended to read:
167.401. (1) Except as { + otherwise + }provided in
{ - subsection (4) of - } this section, { - no - } { +
a + } person under 18 years of age { - shall - } { + may
not + } purchase, attempt to purchase { + , + } { - or - }
acquire { + or possess + }tobacco products as defined in
{ - ORS 431.840 - } { + section 1 of this 2007 Act + }.
{ - Except when such - } { + A + } minor { + who + }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 - } { + may + } have
personal possession of tobacco products.
(2) Any person who violates subsection (1) of this section
commits a violation { + , except that a person under 18 years of
age who violates subsection (1) of this section commits a Class D
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 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 { + gains possession of a
tobacco product as defined in section 1 of this 2007 Act by
misrepresenting the person's age and who + } is convicted of a
second violation of subsection (1) of this section { - 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 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.
SECTION 18. 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 - } { + section 1 of this 2007
Act + }, in any form are dispensed in any place legally
accessible to persons under 18 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 19. 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 - } { + section 1 of this 2007
Act + }, in any form and that are in any manner accessible to
minors.
SECTION 20. ORS 339.865 is amended to read:
339.865. (1) A facility { - shall - } { + may + } not
permit any person under 18 years of age to possess tobacco
products, as defined in
{ - ORS 431.840 - } { + section 1 of this 2007 Act + }, 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 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.
SECTION 21. ORS 471.805 is amended to read:
471.805. (1) Except as otherwise provided in ORS 471.810 (2),
all money collected by the Oregon Liquor Control Commission under
this chapter { + , + } { - and - } ORS chapter 473 { + and
sections 1 to 15 of this 2007 Act + } and privilege taxes shall
be remitted to the State Treasurer who shall credit it to a
suspense account of the commission. Whenever the commission
determines that moneys have been received by it in excess of the
amount legally due and payable to the commission or that it has
received money to which it has no legal interest, or that any
license fee or deposit is properly refundable, the commission is
authorized and directed to refund such money by check drawn upon
the State Treasurer and charged to the suspense account of the
commission. After withholding refundable license fees and such
sum, not to exceed $250,000, as it considers necessary as a
revolving fund for a working cash balance for the purpose of
paying travel expenses, advances, other miscellaneous bills and
extraordinary items which are payable in cash immediately upon
presentation, the commission shall direct the State Treasurer to
transfer the money remaining in the suspense account to the
Oregon Liquor Control Commission Account in the General Fund.
Moneys in the Oregon Liquor Control Commission Account are
continuously appropriated to the commission to be distributed and
used as required or allowed by law.
(2) All necessary expenditures of the commission incurred in
carrying out the purposes required of the commission by law,
including the salaries of its employees, purchases made by the
commission and such sums necessary to reimburse the $250,000
revolving fund, shall be audited and paid from the Oregon Liquor
Control Commission Account in the General Fund, upon warrants
drawn by the Oregon Department of Administrative Services,
pursuant to claims duly approved by the commission.
SECTION 22. { + ORS 167.400, 431.840, 431.845 and 431.850 are
repealed on January 1, 2008. + }
SECTION 23. { + ORS 431.853 is added to and made a part of
sections 1 to 15 of this 2007 Act. + }
SECTION 24. { + (1) Sections 1 to 15 of this 2007 Act and the
amendments to ORS 167.401, 167.402, 167.404, 339.865 and 431.853
by sections 16 to 20 of this 2007 Act apply to persons that sell
tobacco products and to sales of tobacco products on or after the
operative date of this 2007 Act.
(2) ORS 471.805, as amended by section 21 of this 2007 Act,
applies to all moneys the Oregon Liquor Control Commission
receives under sections 1 to 15 of this 2007 Act on or after the
operative date of this 2007 Act. + }
SECTION 25. { + Sections 1 to 15 and the amendments to ORS
167.401, 167.402, 167.404, 339.865, 431.853 and 471.805 by
sections 16 to 21 of this 2007 Act become operative January 1,
2008. + }
SECTION 26. { + The Oregon Liquor Control Commission may take
any action before January 1, 2008, that is necessary to enable
the commission to exercise, on and after January 1, 2008, all the
duties, functions and powers conferred on the commission by this
2007 Act. + }
SECTION 27. { + This 2007 Act takes effect on the 91st day
after the date on which the regular session of the Seventy-fourth
Legislative Assembly adjourns sine die. + }
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