75th OREGON LEGISLATIVE ASSEMBLY--2009 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 972
House Bill 2136
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Human Services)
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 sale or distribution of tobacco products from vending
machines.
A BILL FOR AN ACT
Relating to vending machines distributing tobacco products;
amending ORS 167.402, 323.015, 323.085, 323.105, 323.245,
323.500, 323.520 and 476.755; and repealing ORS 167.404,
323.211 and 323.215.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 167.402 is amended to read:
167.402. { + (1) As used in this section, 'vending machine '
means a mechanical, electronic or similar device that, upon the
insertion of tokens, money or another form of payment, dispenses
tobacco products. + }
{ - (1) - } { + (2) + } { - No person having authority
over such placement shall locate a vending machine from which - }
{ + A person may not sell or dispense + } tobacco products, as
defined in ORS 431.840, { - 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. - } { + from a vending
machine. + }
{ - (2) - } { + (3) + } Violation of subsection
{ - (1) - } { + (2) + } of this section is a Class B
violation. Each day of violation constitutes a separate offense.
SECTION 2. ORS 323.500 is amended to read:
323.500. As used in ORS 323.500 to 323.645, unless the context
otherwise requires:
(1) 'Business' means any trade, occupation, activity or
enterprise engaged in for the purpose of selling or distributing
tobacco products in this state.
(2) 'Cigar' means a roll for smoking that is of any size or
shape and that is made wholly or in part of tobacco, irrespective
of whether the tobacco is pure or flavored, adulterated or mixed
with any other ingredient, if the roll has a wrapper made wholly
or in greater part of tobacco and if 1,000 of these rolls
collectively weigh more than three pounds. 'Cigar' does not
include a cigarette, as defined in ORS 323.010.
(3) 'Consumer' means any person who purchases tobacco products
in this state for the person's use or consumption or for any
purpose other than for reselling the tobacco products to another
person.
(4) 'Contraband tobacco products' means tobacco products or
packages containing tobacco products:
(a) That do not comply with the requirements of ORS 323.500 to
323.645;
(b) That do not comply with the requirements of the tobacco
products tax laws of the federal government or of other states;
or
(c) That bear trademarks that are counterfeit under ORS 647.135
or other state or federal trademark laws.
(5) 'Department' means the Department of Revenue.
(6) 'Distribute' means:
(a) Bringing, or causing to be brought, into this state from
without this state tobacco products for sale, storage, use or
consumption;
(b) Making, manufacturing or fabricating tobacco products in
this state for sale, storage, use or consumption in this state;
(c) Shipping or transporting tobacco products to retail dealers
in this state, to be sold, stored, used or consumed by those
retail dealers;
(d) Storing untaxed tobacco products in this state that are
intended to be for sale, use or consumption in this state;
(e) Selling untaxed tobacco products in this state; or
(f) As a consumer, being in possession of untaxed tobacco
products in this state.
(7) 'Distributor' means:
(a) Any person engaged in the business of selling tobacco
products in this state who brings, or causes to be brought, into
this state from without the state any tobacco products for sale;
(b) Any person who makes, manufactures or fabricates tobacco
products in this state for sale in this state;
(c) Any person engaged in the business of selling tobacco
products without this state who ships or transports tobacco
products to retail dealers in this state, to be sold by those
retail dealers;
(d) Any person, including a retail dealer, who sells untaxed
tobacco products in this state; or
(e) A consumer in possession of untaxed tobacco products in
this state.
(8) 'Manufacturer' means a person who manufactures tobacco
products for sale.
(9) 'Place of business' means any place where tobacco products
are sold or where tobacco products are manufactured, stored or
kept for the purpose of sale or consumption, including any
vessel, vehicle, airplane { - , train or vending machine - }
{ + or train + }.
(10) 'Retail dealer' means any person who is engaged in the
business of selling or otherwise dispensing tobacco products to
consumers. The term also includes the operators of or recipients
of revenue from all places such as smoke shops { - , cigar
stores and vending machines - } { + and cigar bars + }, { + as
those terms are defined in ORS 433.835, + } where tobacco
products are made or stored for ultimate sale to consumers.
(11) 'Sale' means any transfer, exchange or barter, in any
manner or by any means, for a consideration, and includes and
means all sales made by any person. It includes a gift by a
person engaged in the business of selling tobacco products, for
advertising, as a means of evading the provisions of ORS 323.500
to 323.645, or for any other purpose.
(12) 'Taxpayer' includes a distributor or other person required
to pay a tax imposed under ORS 323.500 to 323.645.
(13) 'Tobacco products' means 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, but shall not include cigarettes as
defined in ORS 323.010.
(14) 'Untaxed tobacco products' means tobacco products for
which the tax required under ORS 323.500 to 323.645 has not been
paid.
(15) 'Wholesale sales price' means the price paid for untaxed
tobacco products to or on behalf of a seller by a purchaser of
the untaxed tobacco products.
SECTION 3. ORS 323.015 is amended to read:
323.015. As used in ORS 323.005 to 323.482, unless the context
requires otherwise:
(1) 'Distribution' includes:
(a) The sale in this state of untaxed cigarettes.
(b) The use or consumption in this state of untaxed cigarettes.
(c) The receipt or retention in this state of untaxed
cigarettes at a place of business where cigarettes are
customarily sold or offered for sale to consumers.
{ - (d) The placing of cigarettes in vending machines in this
state. - }
{ - (e) - } { + (d) + } The use or consumption by the first
person in possession in this state of untaxed cigarettes
transported to the state in quantities of more than 199 in a
single shipment.
{ - (f) - } { + (e) + } Donations of sample cigarettes or
gift cartons by the manufacturers of the cigarettes, except
sample packages containing not more than five cigarettes and
labeled as ' sample,' 'not for sale' or with similar wording.
{ - (g) - } { + (f) + } The possession in this state of
untaxed cigarettes that were transported to this state in
quantities of more than 199, unless the person in possession of
the untaxed cigarettes is in possession of the untaxed cigarettes
in order to transport the cigarettes to a location outside this
state.
(2) 'Distributor' includes:
(a) Any person who distributes cigarettes.
(b) Any person who sells or accepts orders for cigarettes that
are to be transported from a point outside this state to a
consumer within this state.
(c) Notwithstanding the provisions of ORS 323.010 (5), any
dealer who serves as the dealer's own distributor or who buys
directly from a manufacturer for resale in this state shall be
deemed to be both a distributor and a dealer under ORS 323.005 to
323.482.
(3) 'Distributor engaged in business in this state ' includes
any of the following:
(a) Any distributor maintaining, occupying or using,
permanently or temporarily, directly or indirectly, or through a
subsidiary or agent, by whatever name called, an office, place of
distribution, sales or sample room or place, warehouse or storage
place or any other place of business.
(b) A distributor having a representative, agent, salesperson,
canvasser or solicitor operating in this state under the
authority of the distributor or its subsidiary for the purpose of
selling, delivering, or the taking of orders for cigarettes.
SECTION 4. ORS 323.085 is amended to read:
323.085. (1) Unless the contrary is established, it shall be
presumed that all cigarettes acquired by a distributor are
untaxed cigarettes, and that all cigarettes manufactured in this
state or transported to this state, and no longer in the
possession of the distributor, have been distributed.
(2) All taxes paid pursuant to the provisions of ORS 323.005 to
323.482 are intended to be direct taxes on the retail consumer
for which required prepayment, through the purchase and
affixation of tax stamps, is only to achieve convenience and
facility in the collection and administration of the tax. When
the tax is paid by any person other than the retail consumer, the
payment shall be considered an advance payment to be added to the
price of the cigarette and recovered from the retail consumer.
{ - Except for a person selling cigarettes through a vending
machine or machines, - } Any person selling cigarettes at retail
shall state or separately display in the retail premises a notice
of the amount of the tax included in the selling price and
charged or payable pursuant to ORS 323.005 to 323.482. The
provisions of this subsection do not affect the method of
prepayment of the tax as provided by ORS 323.005 to 323.482.
SECTION 5. ORS 323.105 is amended to read:
323.105. (1) Any person engaging or seeking to engage in the
sale of cigarettes as a distributor shall file an application for
a distributor's license with the Department of Revenue. The
application shall be on a form prescribed by the department.
(2) A distributor shall apply for and obtain a license for each
place of business at which the distributor engages in the
business of distributing cigarettes. A fee may not be charged for
the license. { - For the purposes of this section, a vending
machine in and of itself is not a place of business. - }
(3) A person may not engage in the business of distributing
cigarettes to other persons in this state without a license.
SECTION 6. ORS 323.520 is amended to read:
323.520. (1) Any person engaging or seeking to engage in the
sale of tobacco products as a distributor shall file an
application for a distributor's license with the Department of
Revenue. The application shall be on a form prescribed by the
department. A distributor shall apply for and obtain a license
for each place of business at which the distributor engages in
the business of distributing tobacco products. A fee may not be
charged for the license. { - For the purposes of this section,
a vending machine in and of itself is not a place of
business. - }
(2) A person may not engage in the business of distributing
tobacco products in this state without a license.
SECTION 7. ORS 323.245 is amended to read:
323.245. (1) Whenever the Department of Revenue discovers any
cigarettes subject to tax under ORS 323.005 to 323.482 and with
respect to which the tax has not been paid or prepaid, if
prepayment is required under ORS 323.068, it is hereby authorized
and empowered forthwith to seize and take possession of the
untaxed cigarettes together with any { - vending machine or - }
receptacle in which they are held for sale and any vehicle in
which they are being transported. The seized cigarettes,
{ - vending machine, - } receptacle or vehicle, not including
money contained in the { - vending machine or - } receptacle,
shall be forfeited to the state, and the clear proceeds shall be
deposited with the State Treasury in the Common School Fund. The
department may, within a reasonable time thereafter, by public
notice at least 20 days before the date of sale, sell the
forfeited { - vending machines, - } receptacles and vehicles at
public sale. Forfeited cigarettes constitute contraband
cigarettes subject to ORS 323.248.
(2) Notwithstanding the provisions of subsection (1) of this
section, the person from whom cigarettes were seized may redeem
any { - vending machine, - } receptacle or vehicle seized at
the time the cigarettes are seized, within 20 days from the date
of seizure, by the payment of the tax due together with a penalty
of 100 percent thereof and the costs incurred in the seizure
proceeding, which total payment may not be less than $100. The
seizure, sale or redemption does not relieve the person from fine
or imprisonment as provided for violation of any provision of ORS
323.005 to 323.482.
(3) Notwithstanding the provisions of subsection (1) of this
section, the owner of a seized { - vending machine, - }
receptacle or vehicle shall have the right of redemption provided
in subsection (2) of this section for a period of 60 days from
the date of the seizure if the owner claims that right prior to
the redemption provided for in subsection (2) of this section.
{ - (4) Notwithstanding the provisions of subsections (1),
(2) and (3) of this section, the owner of a vending machine that
is seized for failure to comply with ORS 323.211 may redeem the
seized vending machine within a period of 60 days from the date
of the seizure by the payment of $25 plus costs of $15 or the
actual costs incurred in the seizure proceedings, whichever is
greater. - }
SECTION 8. ORS 476.755 is amended to read:
476.755. As used in ORS 476.755 to 476.790 and 476.995:
(1) 'Cigarette' means a roll for smoking:
(a) That is made wholly of tobacco, or of tobacco and any other
substance, regardless of size, shape or flavoring or adulteration
by or mixing with other ingredients, the wrapper of which is made
of paper or other nontobacco materials; and
(b) That, because of its appearance, the type of tobacco used
in the filler or its packaging and labeling, is likely to be
offered to or purchased by consumers as a cigarette.
(2) 'Distribute' means to do any of the following:
(a) Sell cigarettes or deliver cigarettes for sale by another
person to consumers.
(b) Receive or retain more than 199 cigarettes at a place of
business where the person receiving or retaining the cigarettes
customarily sells cigarettes or offers cigarettes for sale to
consumers.
{ - (c) Place cigarettes in vending machines. - }
{ - (d) - } { + (c) + } Sell or accept orders for
cigarettes that are to be transported from a point outside this
state to a consumer within this state.
{ - (e) - } { + (d) + } Buy cigarettes directly from a
manufacturer or wholesale dealer for resale in this state.
{ - (f) - } { + (e) + } Give cigarettes as a sample, prize,
gift or other promotion.
(3) 'Manufacturer' means:
(a) An entity that produces, or causes the production of,
cigarettes for sale in this state;
(b) An importer or first purchaser of cigarettes that intends
to resell within this state cigarettes that were produced for
sale outside this state; or
(c) A successor to an entity, importer or first purchaser
described in paragraph (a) or (b) of this subsection.
(4) 'Packaging' includes, but is not limited to, cigarette soft
packs, boxes, cartons and cases.
(5) 'Quality control and assurance program' means laboratory
procedures implemented to ensure that operator bias, systematic
and nonsystematic methodological errors and equipment-related
problems do not affect the results of testing.
(6) 'Reduced ignition propensity' means meeting the fire safety
performance standard described in ORS 476.770 (6).
(7) 'Repeatability' means the range of values within which the
repeat results of ignition propensity testing by a single
laboratory will fall 95 percent of the time.
(8) 'Retail dealer' means a person, other than a manufacturer
or wholesale dealer, that engages in distributing cigarettes.
(9) 'Sell' means to transfer, or agree to transfer, title or
possession for a monetary or nonmonetary consideration.
(10) 'Variety' means a type of cigarette marketed by the
manufacturer as being distinct from other types of cigarettes on
the basis of brand name, length, filter, wrapping, flavoring or
other characteristics as the State Fire Marshal may provide by
rule.
(11) 'Wholesale dealer' means a person that distributes
cigarettes to { - : - }
{ - (a) - } a retail dealer or other person for resale
{ - ; or - }
{ - (b) A person that owns, operates or maintains cigarette
vending machines on premises owned or operated by another
person - } .
SECTION 9. { + ORS 167.404, 323.211 and 323.215 are
repealed. + }
----------