STATE OF OKLAHOMA

2nd Session of the 53rd Legislature (2012)

SENATE BILL 1032	By:	Simpson

AS INTRODUCED

An Act relating to tobacco; amending 37 O.S. 2011, Sections 600.3, 600.4, 600.8, 600.9, 600.10 and 600.10A, which relate to the regulation of tobacco use; removing requirements that cities shall not enact more stringent regulations than state law relating to tobacco use; amending 63 O.S. 2011, Section 1-1527, which relates to tobacco restriction preemption; providing for certain interpretation; permitting governmental subdivisions to adopt and enforce local ordinances to further control smoking; providing that local ordinances must comply with certain minimum standards; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     AMENDATORY     37 O.S. 2011, Section 600.3, is amended to read as follows:
Section 600.3.  A.  It is unlawful for any person to sell, give or furnish in any manner any tobacco product to another person who is under eighteen (18) years of age, or to purchase in any manner a tobacco product on behalf of any such person.  It shall not be unlawful for an employee under eighteen (18) years of age to handle tobacco products when required in the performance of the employee's duties.
B.  A person engaged in the sale or distribution of tobacco products shall demand proof of age from a prospective purchaser or recipient if an ordinary person would conclude on the basis of appearance that the prospective purchaser may be under eighteen (18) years of age.
If an individual engaged in the sale or distribution of tobacco products has demanded proof of age from a prospective purchaser or recipient who is not under eighteen (18) years of age, the failure to subsequently require proof of age shall not constitute a violation of subsection B of this section this subsection.
C.  1.  When a person violates subsection A or B of this section, the Alcoholic Beverage Laws Enforcement (ABLE) Commission shall impose an administrative fine of:
a.	not more than One Hundred Dollars ($100.00) for the first offense,
b.	not more than Two Hundred Dollars ($200.00) for the second offense within a two-year period following the first offense,
c.	not more than Three Hundred Dollars ($300.00) for a third offense within a two-year period following the first offense.  In addition to any other penalty, the store’s license to sell tobacco products may be suspended for a period not exceeding thirty (30) days, or
d.	not more than Three Hundred Dollars ($300.00) for a fourth or subsequent offense within a two-year period following the first offense.  In addition to any other penalty, the store’s license to sell tobacco products may be suspended for a period not exceeding sixty (60) days.
2.  When it has been determined that a penalty shall include a license suspension, the ABLE Commission shall notify the Oklahoma Tax Commission, and the Tax Commission shall suspend the store's license to sell tobacco products at the location where the offense occurred for the period of time prescribed by the ABLE Commission.
3.  Proof that the defendant demanded, was shown, and reasonably relied upon proof of age shall be a defense to any action brought pursuant to this section.  A person cited for violating this section shall be deemed to have reasonably relied upon proof of age, and such person shall not be found guilty of such violation if such person proves that:
a.	the individual who purchased or received the tobacco product presented a driver license or other government-issued photo identification purporting to establish that such individual was eighteen (18) years of age or older, and
b.	the person cited for the violation confirmed the validity of the driver license or other government-issued photo identification presented by such individual by performing a transaction scan by means of a transaction scan device.
Provided, that this defense shall not relieve from liability any person cited for a violation of this section if such person failed to exercise reasonable diligence to determine whether the physical description and picture appearing on the driver license or other government-issued photo identification was that of the individual who presented it.  The availability of the defense described in this subsection does not affect the availability of any other defense under any other provision of law.
D.  If the sale is made by an employee of the owner of a store at which tobacco products are sold at retail, the employee shall be guilty of the violation and shall be subject to the fine.  Each violation by any employee of an owner of a store licensed to sell tobacco products shall be deemed a violation against the owner for purposes of a license suspension pursuant to subsection C of this section.  An owner of a store licensed to sell tobacco products shall not be deemed in violation of the provisions of the Prevention of Youth Access to Tobacco Act for any acts constituting a violation by any person, when the violation occurs prior to actual employment of the person by the store owner or the violation occurs at a location other than the owner’s retail store.  For purposes of determining the liability of a person controlling franchises or business operations in multiple locations, for any violations of subsection A or B of this section, each individual franchise or business location shall be deemed a separate entity.
E.  On or before December 15, 1997, the ABLE Commission shall adopt rules establishing a method of notification of storeowners when one of their employees has been determined to be in violation of this section by the ABLE Commission or convicted of a violation by a municipality.
F.  1.  Upon failure of the employee to pay the administrative fine within ninety (90) days of the day of the assessment of such fine, the ABLE Commission shall notify the Department of Public Safety and the Department shall suspend or not issue a driver license to the employee until proof of payment has been furnished to the Department of Public Safety.
2.  Upon failure of a storeowner to pay the administrative fine within ninety (90) days of the assessment of the fine, the ABLE Commission shall notify the Tax Commission and the Tax Commission shall suspend the store's license to sell tobacco products until proof of payment has been furnished to the Oklahoma Tax Commission.
G.  Cities and towns may enact and municipal police officers may enforce ordinances prohibiting and penalizing conduct under provisions of this section, but the provisions of municipal ordinances shall be the same as provided for in this section, and the penalty provisions under such ordinances shall not be more stringent than those of this section.
H.   County sheriffs may enforce the provisions of the Prevention of Youth Access to Tobacco Act.
SECTION 2.     AMENDATORY     37 O.S. 2011, Section 600.4, is amended to read as follows:
Section 600.4  A.  It is unlawful for a person who is under eighteen (18) years of age to purchase, receive, or have in their possession a tobacco product, or to present or offer to any person any purported proof of age which is false or fraudulent, for the purpose of purchasing or receiving any tobacco product.  It shall not be unlawful for an employee under eighteen (18) years of age to handle tobacco products when required in the performance of the employee's duties.
B.  When a person violates subsection A of this section, the Alcoholic Beverage Laws Enforcement (ABLE) Commission shall impose an administrative fine of:
1.  Not to exceed One Hundred Dollars ($100.00) for a first offense; and
2.  Not to exceed Two Hundred Dollars ($200.00) for a second or subsequent offense within a one-year period following the first offense.
Upon failure of the individual to pay the administrative fine within ninety (90) days of the day of the fine, the ABLE Commission shall notify the Department of Public Safety and the Department shall suspend or not issue a driver license to the individual until proof of payment has been furnished to the Department of Public Safety.
C.  The ABLE Commission shall establish rules to provide for notification to a parent or guardian of any minor cited for a violation of this section.
D.  Cities and towns may enact and municipal police officers may enforce ordinances prohibiting and penalizing conduct under provisions of this section, but the provisions of such ordinances shall be the same as provided for in this section, and the enforcement provisions under such ordinances shall not be more stringent than those of this section.
SECTION 3.     AMENDATORY     37 O.S. 2011, Section 600.8, is amended to read as follows:
Section 600.8.  A.  It shall be unlawful for any person or retailer to distribute tobacco products or product samples to any person under eighteen (18) years of age.
B.  No person shall distribute tobacco products or product samples in or on any public street, sidewalk, or park that is within three hundred (300) feet of any playground, school, or other facility when the facility is being used primarily by persons under eighteen (18) years of age.
C.  When a person violates any provision of subsection A or B of this section, the Alcoholic Beverage Laws Enforcement (ABLE) Commission shall impose an administrative fine of:
1.  Not more than One Hundred Dollars ($100.00) for the first offense;
2.  Not more than Two Hundred Dollars ($200.00) for the second offense; and
3.  Not more than Three Hundred Dollars ($300.00) for a third or subsequent offense.
D.  Upon failure of any person to pay an administrative fine within ninety (90) days of the assessment of the fine, the ABLE Commission shall notify the Department of Public Safety, and the Department shall suspend or not issue a driver license to the person until proof of payment has been furnished to the Department of Public Safety.
E.  Cities and towns may enact and municipal police officers may enforce ordinances prohibiting and penalizing conduct under provisions of this section, but the provisions of municipal ordinances shall be the same as provided for in this section, and the penalty provisions under such ordinances shall not be more stringent than those of this section.
SECTION 4.     AMENDATORY     37 O.S. 2011, Section 600.9, is amended to read as follows:
Section 600.9  A.  It is unlawful for any person to sell cigarettes except in the original, sealed package in which they were placed by the manufacturer.
B.  When a person violates subsection A of this section, the Alcoholic Beverage Laws Enforcement (ABLE) Commission shall impose an administrative fine of not more than Two Hundred Dollars ($200.00) for each offense.
C.  Cities and towns may enact and municipal police officers may enforce ordinances prohibiting and penalizing conduct under provisions of this section, but the provisions of such ordinances shall be the same as provided for in this section, and the enforcement provisions under such ordinances shall not be more stringent than those of this section.
SECTION 5.     AMENDATORY     37 O.S. 2011, Section 600.10, is amended to read as follows:
Section 600.10  No Any agency or other political subdivision of the state, including, but not limited to, municipalities, counties or any agency thereof, may adopt and enforce any order, ordinance, rule or regulation concerning the sale, purchase, distribution, advertising, sampling, promotion, display, possession, or licensing, or taxation of tobacco products, except; provided, the order, ordinance, rule or regulation shall not be less stringent than the Prevention of Youth Access to Tobacco Act, or as provided in Section 402 et seq. and Section 1511 of Title 68 of the Oklahoma Statutes, Section 1-1521 et seq. of Title 63 of the Oklahoma Statutes and Section 1247 of Title 21 of the Oklahoma Statutes.  Provided, however further, nothing in this section shall preclude or preempt any agency or political subdivision from exercising its lawful authority to regulate zoning or land use or to enforce a fire code regulation regulating smoking or tobacco products to the extent that such regulation is substantially similar to nationally recognized standard fire codes.
SECTION 6.     AMENDATORY     37 O.S. 2011, Section 600.10A, is amended to read as follows:
Section 600.10A.  A.  It is unlawful for any person or retail store to display or offer for sale tobacco products in any manner that allows public access to the tobacco product without assistance from the person displaying the tobacco product or an employee or the owner of the store.  The provisions of this subsection shall not apply to retail stores which do not admit into the store persons under eighteen (18) years of age.
B.  When a person violates subsection A of this section, the Alcoholic Beverage Laws Enforcement (ABLE) Commission shall impose an administrative fine of not more than Two Hundred Dollars ($200.00) for each offense.
C.  Cities and towns may enact and municipal police officers may enforce ordinances prohibiting and penalizing conduct under provisions of this section, but the provisions of municipal ordinances shall be the same as provided for in this section and the penalty provisions under such ordinances shall not be more stringent than those of this section.
SECTION 7.     AMENDATORY     63 O.S. 2011, Section 1-1527, is amended to read as follows:
Section 1-1527.  Nothing in the Smoking in Public Places and Indoor Workplaces Act prohibits or preempts governmental subdivisions from adopting and enforcing more stringent local ordinances to protect individuals from secondhand smoke.  The State Legislature by adopting this act intends to preempt any other regulation promulgated to control smoking in public places and to standardize laws that the Smoking in Public Places and Indoor Workplaces Act permits and authorizes governmental subdivisions may to adopt and enforce local ordinances to further control smoking.  Cities and towns may enact and enforce laws prohibiting and penalizing conduct under provisions of this act, but; provided, the provisions of such laws ordinances shall be the same as provided in this act and the enforcement provisions under such laws shall not be more stringent than those of this act comply with at least the minimum applicable standards set forth in the Smoking in Public Places and Indoor Workplaces Act.
SECTION 8.  This act shall become effective November 1, 2012.

53-2-2434	JM	12/30/2011 11:54:11 AM