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									                                 South Carolina General Assembly
                                     116th Session, 2005-2006

H. 3243

STATUS INFORMATION

General Bill
Sponsors: Rep. Talley
Document Path: l:\council\bills\ms\7086ahb05.doc

Introduced in the House on January 11, 2005
Introduced in the Senate on April 20, 2005
Last Amended on April 19, 2005
Currently residing in the Senate Committee on Judiciary

Summary: Youth Access to Tobacco Prevention Act of 2005


HISTORY OF LEGISLATIVE ACTIONS

    Date     Body   Action Description with journal page number
 1/11/2005   House  Introduced and read first time HJ-141
 1/11/2005   House  Referred to Committee on Judiciary HJ-142
 4/14/2005   House  Committee report: Favorable with amendment Judiciary HJ-2
 4/19/2005   House  Amended HJ-137
 4/19/2005   House  Read second time HJ-141
 4/20/2005   House  Read third time and sent to Senate HJ-31
 4/20/2005   Senate Introduced and read first time SJ-6
 4/20/2005   Senate Referred to Committee on Judiciary SJ-6
 4/20/2005          Scrivener's error corrected
 4/26/2005   Senate Referred to Subcommittee: Hawkins (ch), Cromer, Sheheen, Lourie
 5/25/2005   Senate Committee report: Favorable with amendment Judiciary SJ-26
 3/21/2006   Senate Recommitted to Committee on Judiciary SJ-27


VERSIONS OF THIS BILL

1/11/2005
4/14/2005
4/19/2005
4/20/2005
5/25/2005
 1   Indicates Matter Stricken
 2   Indicates New Matter
 3
 4   COMMITTEE REPORT
 5   May 25, 2005
 6
 7                                                           H. 3243
 8
 9                        Introduced by Rep. Talley
10
11   S. Printed 5/25/05--S.
12   Read the first time April 20, 2005.
13
14
15                 THE COMMITTEE ON JUDICIARY
16      To whom was referred a Bill (H. 3243) to enact the “Youth
17   Access to Tobacco Prevention Act of 2005” including provisions
18   to amend Section 16-17-500, as amended, Code of Laws of South
19   Carolina, etc., respectfully
20                                REPORT:
21      That they have duly and carefully considered the same and
22   recommend that the same do pass with amendment:
23
24      Amend the bill, as and if amended, by striking SECTION 2 in
25   its entirety and inserting:
26      / SECTION 2. Section 16-17-500 of the 1976 Code, as last
27   amended by Act 445 of 1996, is further amended to read:
28      “Section 16-17-500. (A) It shall be is unlawful for any a
29   person to sell, furnish, give, distribute, purchase for, or provide any
30   a minor under the age of eighteen years with cigarettes, tobacco,
31   cigarette paper, or any substitute therefore a tobacco product. Any
32   person violating the provisions of this section, either in person, by
33   agent or in any other way, shall be guilty of a misdemeanor and,
34   upon indictment and conviction, therefor shall be punished as
35   follows:
36         (1) for a first offense by a fine not exceeding twenty-five
37   dollars;
38         (2) for a second offense, by a fine not exceeding fifty
39   dollars; and
40         (3) for a third or subsequent offense, by a fine of not less
41   than one hundred dollars or imprisonment for not more than one
42   year nor less than sixty days, or both.

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 1      One-half of any fine imposed shall be paid to the informer of the
 2   offense and the other half to the treasurer of the county in which
 3   such conviction shall be had.
 4      (B) Tobacco products may be accessible only in vending
 5   machines located in an establishment:
 6         (1) which is open only to persons who are eighteen years of
 7   age or older; or
 8         (2) where the vending machine is under continuous control
 9   by the owner or licensee of the premises, or an employee of the
10   owner or licensee, can be operated only upon activation by the
11   owner, licensee, or employee before each purchase, and is not
12   accessible to the public when the establishment is closed. The
13   owner, licensee, or employee must demand proof of age from a
14   prospective purchaser if he has reasonable grounds to believe the
15   prospective purchaser is less than eighteen years of age. Proof that
16   an owner, licensee, or employee demanded, was shown, and
17   reasonably relied upon an individual’s proof of age is a defense to
18   any action brought pursuant to this subsection. Vending machines
19   which distribute tobacco products in establishments must meet the
20   requirements of this subsection within one hundred twenty days
21   after the effective date of this subsection or the machines must be
22   removed.
23      (C)(1) It is unlawful for an individual less than eighteen years
24   of age to purchase, accept receipt of, or possess, or attempt to
25   purchase, attempt to accept receipt of, or attempt to possess a
26   tobacco product, or to present or offer to a person proof of age that
27   is false or fraudulent for the purpose of purchasing or possessing a
28   tobacco product.
29         (2) This subsection does not apply to the possession of
30   tobacco products by an individual less than eighteen years of age
31   who delivers tobacco products pursuant to his employment
32   responsibilities.
33      (D)(1) An individual who intentionally or knowingly violates a
34   provision contained in this section either in person, by agent, or in
35   any other way, is guilty of a misdemeanor and, upon conviction,
36   must be punished as follows:
37           (a) for a first offense, by a fine not less than one hundred
38   dollars;
39           (b) for a second offense, which occurs within three years
40   of the first offense, by a fine not less than two hundred dollars;
41           (c) for a third or subsequent violation, which occurs
42   within three years of the first offense, by a fine not less than three
43   hundred dollars.

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 1         (2) The fine must be paid to the municipal clerk of court or
 2   magistrate, as appropriate, and deposited with the city or county
 3   treasurer, as appropriate. The city or county treasurer, as
 4   appropriate, must remit fifty percent of the fine to the State
 5   Treasurer. The State Treasurer must deposit the fine received to
 6   the Department of Health and Environmental Control to be used
 7   for the department’s Youth Smoking Prevention Plan.
 8      (E) A violation of this section is triable exclusively in either
 9   municipal or magistrate’s court.
10      (F) In lieu of the penalties contained in subsection (D), a court
11   may require an individual who is less than eighteen years of age
12   who illegally purchases, accepts receipt of, or possesses, or
13   attempts to purchase, accept receipt of, or possess a tobacco
14   product to perform not less than twenty hours of community
15   service for a first offense and not less than forty hours of
16   community service for a second or subsequent offense. If the
17   individual successfully completes a Department of Health and
18   Environmental Control approved smoking cessation or tobacco
19   prevention program, then the court must reduce the fine or required
20   hours of community service by not less than fifty percent.
21      (G) An individual who is less than eighteen years of age and
22   who has been convicted of violating a provision of this section
23   may request to have his record expunged upon becoming eighteen
24   years of age. If the individual has paid any fine imposed upon him
25   or successfully completed any court-ordered community service
26   and Department of Health and Environmental Control approved
27   smoking cessation or tobacco prevention programs, then the
28   individual’s record must be expunged.
29      (H) A violation of this section is not grounds for denying,
30   suspending, or revoking an individual’s participation in a state
31   college or university financial assistance program including, but
32   not limited to, a Life Scholarship, a Palmetto Fellows Scholarship,
33   or a need-based grant.
34      (I) Notwithstanding any other provision of law, a violation of
35   this section does not violate the terms and conditions of an
36   establishment’s beer and wine permit and is not grounds for
37   revocation or suspension of a beer and wine permit.” /
38      Amend the bill further, as and if amended, by striking
39   SECTION 3 in its entirety.
40      Renumber sections to conform.
41      Amend title to conform.
42
43   CHAUNCEY K. GREGORY for Committee.

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 1
 2
 3         STATEMENT OF ESTIMATED FISCAL IMPACT
 4        ESTIMATED FISCAL IMPACT ON GENERAL FUND
 5                            EXPENDITURES:
 6         $0 (No additional expenditures or savings are expected)
 7      ESTIMATED FISCAL IMPACT ON FEDERAL & OTHER
 8                        FUND EXPENDITURES:
 9                                See Below
10   EXPLANATION OF IMPACT:
11     Enactment would have no impact on state general fund
12   expenditures. Other funds expenditures would be impacted to the
13   extent the state receives additional revenue from assessments
14   associated the fines contained in this statute.
15   LOCAL GOVERNMENT IMPACT:
16     Responses from local governments indicate enactment would
17   have little or no impact on expenditures.
18   SPECIAL NOTES:
19     The Board of Economic Advisors is the appropriate entity to
20   address any revenue impact associated with this or any other bill.
21
22                                    Approved By:
23                                    Don Addy
24                                    Office of State Budget
25




     [3243-4]
 1
 2
 3
 4
 5
 6
 7
 8
 9                      A BILL
10
11   TO ENACT THE “YOUTH ACCESS TO TOBACCO
12   PREVENTION ACT OF 2005” INCLUDING PROVISIONS TO
13   AMEND SECTION 16-17-500, AS AMENDED, CODE OF
14   LAWS OF SOUTH CAROLINA, 1976, RELATING TO
15   SUPPLYING MINORS WITH TOBACCO OR CIGARETTES,
16   SO AS TO PROVIDE THAT THIS PROVISION ALSO
17   APPLIES TO THE DISTRIBUTION OR PURCHASE FOR A
18   MINOR OF CIGARETTES, TOBACCO, CIGARETTE PAPER,
19   OR A TOBACCO PRODUCT, TO PROVIDE THAT A PERSON
20   MAY NOT SELL A TOBACCO PRODUCT TO AN
21   INDIVIDUAL WHO DOES NOT PRESENT UPON DEMAND
22   PROPER PROOF OF AGE OR IS NOT BELIEVED TO BE
23   OVER TWENTY-SEVEN YEARS OF AGE, TO PROVIDE
24   THAT A RETAIL DISTRIBUTOR OF TOBACCO PRODUCTS
25   MUST TRAIN ITS RETAIL SALES EMPLOYEES
26   REGARDING THE PROVISIONS CONTAINED IN THIS
27   SECTION, TO PROVIDE THAT CERTAIN INDIVIDUALS
28   LESS THAN EIGHTEEN YEARS OF AGE MAY NOT
29   PURCHASE, ACCEPT RECEIPT, ATTEMPT TO PURCHASE,
30   ATTEMPT TO ACCEPT RECEIPT OF A TOBACCO
31   PRODUCT, OR PRESENT OR OFFER FRAUDULENT PROOF
32   OF AGE FOR THE PURPOSE OF PURCHASING OR
33   POSSESSING A TOBACCO PRODUCT, TO PROVIDE THAT
34   A LAW ENFORCEMENT AGENCY MAY USE MINORS TO
35   TEST A COMMUNITY’S COMPLIANCE WITH THIS
36   SECTION, TO PROVIDE THAT IT IS UNLAWFUL FOR AN
37   INDIVIDUAL UNDER THE AGE OF EIGHTEEN TO POSSESS
38   A TOBACCO PRODUCT, TO PROVIDE THE CONDITIONS IN
39   WHICH TOBACCO PRODUCTS MAY BE DISTRIBUTED IN
40   VENDING MACHINES, TO REVISE THE PENALTIES FOR
41   VIOLATING THE PROVISIONS CONTAINED IN THIS
42   SECTION, AND TO DEFINE THE TERM “PERSON”; TO

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 1   AMEND SECTION 16-17-501, RELATING TO DEFINITIONS
 2   OF TERMS RELATING TO THE DISTRIBUTION OF
 3   TOBACCO      PRODUCT      SAMPLES    AND     THE
 4   IMPLEMENTATION OF PROVISIONS THAT REGULATE
 5   THE SALE AND USE OF TOBACCO PRODUCTS BY LOCAL
 6   GOVERNMENTS, SO AS TO PROVIDE THAT THESE
 7   DEFINITIONS APPLY TO PROVISIONS REGULATING
 8   SUPPLYING TOBACCO PRODUCTS TO MINORS; AND TO
 9   REVISE THE DEFINITION OF THE TERM “PROOF OF AGE”.
10
11   Be it enacted by the General Assembly of the State of South
12   Carolina:
13
14   SECTION 1. This act may be cited as the “Youth Access to
15   Tobacco Prevention Act of 2005”.
16
17   SECTION 2. Section 16-17-500 of the 1976 Code, as last
18   amended by Act 445 of 1996, is further amended to read:
19
20      “Section 16-17-500. (A) It shall be is unlawful for any a
21   person to sell, furnish, give, distribute, purchase for, or provide any
22   a minor under the age of eighteen years with cigarettes, tobacco,
23   cigarette paper, or any substitute therefor a tobacco product. Any
24   person violating the provisions of this section, either in person, by
25   agent or in any other way, shall be guilty of a misdemeanor and,
26   upon indictment and conviction, therefor shall be punished as
27   follows:
28        (1) for a first offense by a fine not exceeding twenty-five
29   dollars;
30        (2) for a second offense, by a fine not exceeding fifty
31   dollars; and
32        (3) for a third or subsequent offense, by a fine of not less
33   than one hundred dollars or imprisonment for not more than one
34   year nor less than sixty days, or both.
35      One-half of any fine imposed shall be paid to the informer of the
36   offense and the other half to the treasurer of the county in which
37   such conviction shall be had.
38      (B) It is unlawful for a person to sell a tobacco product to an
39   individual who does not present upon demand proper proof of age.
40   Proof of age is not required from an individual who the person
41   reasonably believes to be over twenty-seven years of age. Failure
42   to require identification to verify a person’s age shall be used as
43   evidence to the knowing and intentional violation of this provision

     [3243]                             2
 1   unless the person knows the individual is at least eighteen years of
 2   age. Proof that is demanded, is shown, and reasonably is relied
 3   upon for the individual’s proof of age is a defense to an action
 4   initiated pursuant to this section. To determine whether a person
 5   believes an individual is at least twenty-seven years of age, a court
 6   may consider, but is not limited to considering, proof of the
 7   individual’s general appearance, facial characteristics, behavior,
 8   and manners. This subsection does not apply to mail order sales.
 9      (C) A retail distributor of tobacco products must train its retail
10   sales employees regarding the provisions contained in this section.
11   In lieu of the penalties contained in subsection (F), a retail
12   establishment that fails to comply with this provision must be fined
13   not more than one thousand dollars. A retail establishment that
14   provides proof that it has complied with the provisions contained
15   in this section is not subject to this penalty.
16      (D) It is unlawful for an individual less than eighteen years of
17   age to possess a tobacco product. This subsection does not apply
18   to the possession of tobacco products by an individual less than
19   eighteen years of age who delivers tobacco products pursuant to
20   his employment responsibilities.
21      (E) A person or individual that intentionally or knowingly
22   violates a provision contained in this section either in person, by
23   agent, or in any other way, is guilty of a misdemeanor and, upon
24   conviction, must be punished as follows:
25         (1) for a first offense, by a fine not less than one hundred
26   dollars;
27         (2) for a second offense, which occurs within three years of
28   the first offense, by a fine not less than two hundred dollars; and
29         (3) for a third or subsequent offense, which occurs within
30   three years of the first offense, by a fine not less than three
31   hundred dollars.
32      The adjudicating jurisdiction shall retain all fines collected
33   pursuant to the provisions of this subsection. A violation of this
34   section is triable exclusively in either municipal or magistrate
35   court.
36      (F) In lieu of the penalties contained in subsection (E), a court
37   may require an individual who is less than eighteen years of age
38   who illegally purchases or possesses a tobacco product to perform
39   not less than twenty hours of community service for a first offense
40   and not less than forty hours of community service for a second or
41   subsequent offense.
42      (G) As used in this section ‘person’ means an individual.
43   ‘Person’ does not mean a firm, partnership, corporation, company,

     [3243]                            3
 1   association, club, or commercial entity the person is associated
 2   with.
 3      (H) Notwithstanding any other provision of law, a violation of
 4   this section does not violate an establishment’s beer and wine
 5   permit and is not a ground for revocation or suspension of a beer
 6   and wine permit.
 7      (I) A person who is less than eighteen years of age and who
 8   has been convicted of violating a provision of this section may
 9   have his record expunged upon becoming eighteen years of age if
10   he has paid any fine imposed upon him and successfully completed
11   any court-ordered community service.
12      (J) Notwithstanding another provision of law, a conviction
13   pursuant to the provisions of this section does not affect a person’s
14   eligibility for a LIFE Scholarship or other state sponsored
15   scholarship program.”
16
17   SECTION 3. Section 16-17-501 of the 1976 Code, as added by
18   Act 445 of 1996, is amended to read:
19
20      “Section 16-17-501. As used in this Section and Sections
21   16-17-500, 16-17-502, 16-17-503, and 16-17-504:
22      (1) ‘Distribute’ means to sell, furnish, give, or provide tobacco
23   products, including tobacco product samples, cigarette paper, or a
24   substitute for them, to the ultimate consumer.
25      (2) ‘Proof of age’ means a driver’s license or other
26   documentary or written evidence that the individual is eighteen
27   years of age or older identification card issued by this state, or a
28   United States Armed Services identification card.
29      (3) ‘Sample’ means a tobacco product distributed to members
30   of the general public at no cost for the purpose of promoting the
31   products.
32      (4) ‘Sampling’ means the distribution of samples to members
33   of the general public in a public place.
34      (5) ‘Tobacco product’ means a product that contains tobacco
35   and is intended for human consumption.”
36
37   SECTION 4. The repeal or amendment by this act of any law,
38   whether temporary or permanent or civil or criminal, does not
39   affect pending actions, rights, duties, or liabilities founded thereon,
40   or alter, discharge, release or extinguish any penalty, forfeiture, or
41   liability incurred under the repealed or amended law, unless the
42   repealed or amended provision shall so expressly provide. After
43   the effective date of this act, all laws repealed or amended by this

     [3243]                             4
 1   act must be taken and treated as remaining in full force and effect
 2   for the purpose of sustaining any pending or vested right, civil
 3   action, special proceeding, criminal prosecution, or appeal existing
 4   as of the effective date of this act, and for the enforcement of
 5   rights, duties, penalties, forfeitures, and liabilities as they stood
 6   under the repealed or amended laws.
 7
 8   SECTION 5. If any section, subsection, paragraph, subparagraph,
 9   sentence, clause, phrase, or word of this act is for any reason held
10   to be unconstitutional or invalid, such holding shall not affect the
11   constitutionality or validity of the remaining portions of this act,
12   the General Assembly hereby declaring that it would have passed
13   this Act, and each and every section, subsection, paragraph,
14   subparagraph, sentence, clause, phrase, and word thereof,
15   irrespective of the fact that any one or more other sections,
16   subsections, paragraphs, subparagraphs, sentences, clauses,
17   phrases, or words hereof may be declared to be unconstitutional,
18   invalid, or otherwise ineffective.
19
20   SECTION 6. This act takes effect upon approval by the Governor.
21                            ----XX----
22




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