Bill Text: OR HB3191 | 2011 | Regular Session | Introduced
Bill Title: Relating to tobacco.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3191 Detail]
Download: Oregon-2011-HB3191-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 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 448
House Bill 3191
Sponsored by Representative KOMP
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.
Increases minimum age for tobacco possession from 18 years of
age to 21 years of age.
Creates crime of distribution of tobacco products to person
under 21 years of age. Punishes by fine of not less than $100.
A BILL FOR AN ACT
Relating to tobacco; creating new provisions; and amending ORS
163.575, 163.580, 165.800, 165.813, 167.400, 167.401, 167.402,
167.404, 167.407, 323.718, 339.883, 431.840, 431.853, 433.835
and 807.500.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 167.400 is amended to read:
167.400. (1) 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 - } { + a + } person under { - 18 - }
{ + 21 + } years of age { - shall - } { + may not + }
purchase, attempt to purchase or acquire tobacco products as
defined in ORS 431.840. Except when such { - minor - }
{ + person + } is in a private residence accompanied by the
parent or guardian of the
{ - minor - } { + person + } and with the consent of such
parent or guardian,
{ - no - } { + a + } person under { - 18 - } { + 21 + }
years of age { - shall - } { + may not + } 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 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 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 who is under 21 years of age
and is + } acting under the supervision of { - an adult - }
{ + a person who is at least 21 years of age + } 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) 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.
(2) A person may not sell or dispense tobacco products, as
defined in ORS 431.840, from a vending machine, except in an
establishment where the premises are posted as permanently and
entirely off-limits to { - minors - } { + persons under 21
years of age + } under rules adopted by the Oregon Liquor Control
Commission.
(3) Violation of subsection (2) 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 167.407 is amended to read:
167.407. (1) A person having authority over the location of
cigarettes and other tobacco products in a retail store may not
locate cigarettes or other tobacco products in a location in the
store where the cigarettes or other tobacco products are
accessible by store customers without assistance by a store
employee.
(2) Violation of subsection (1) of this section is a Class B
violation. Each day of violation constitutes a separate offense.
(3) Subsections (1) and (2) of this section do not apply if the
location at which the cigarettes or tobacco products are sold is
a store or other establishment at which persons under
{ - 18 - } { + 21 + } years of age are prohibited.
SECTION 6. 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) - } { + (1) + } 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 7. { + (1) A person commits the crime of distribution
of tobacco products to a person under 21 years of age if the
person knowingly distributes, sells or causes to be sold tobacco
in any form to a person under 21 years of age.
(2) Distribution of tobacco products to a person under 21 years
of age is a Class A violation, and the court shall impose a fine
of not less than $100. + }
SECTION 8. 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 9. 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
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
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
{ - 18 - } { + 21 + } years of age commits the crime of
{ - endangering the welfare of a minor, pursuant to ORS
163.575 - } { + distribution of tobacco products to a person
under 21 years of age, pursuant to section 7 of this 2011
Act + }.
_________________________________________________________________
SECTION 10. ORS 431.853 is amended to read:
431.853. (1) The Oregon Health Authority 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 - } { + persons under 21 years of age + } including
ORS 163.575, 163.580, 167.400, 167.402 and 431.840 { + and
section 7 of this 2011 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 Oregon Health Authority 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 11. ORS 807.500 is amended to read:
807.500. (1) A person commits the offense of unlawful
production of identification cards, licenses, permits, forms or
camera cards if the person, without the authority of the
Department of Transportation, advertises for the production of,
produces in any way or causes to be produced any facsimiles of
the identification cards, licenses, permits, forms or camera
cards upon which the department issues identification cards,
licenses or driver permits under the vehicle code.
(2) The offense described in this section, unlawful production
of identification cards, licenses, permits, forms or camera
cards, 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 produced an identification
card, license or permit solely for the purpose of enabling the
person to purchase alcohol { - ; - } or { + tobacco
products. + }
{ - (b) Was under 18 years of age at the time of committing
the offense and the person produced an identification card,
license or permit solely for the purpose of enabling the person
to purchase tobacco products. - }
SECTION 12. 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
{ - ; - } { + or tobacco products; or + }
{ - (b) Was under 18 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) - } { + (b) + } 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 person, whether living or
deceased, or an 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' or 'trust company,' as those terms are
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 13. ORS 165.813 is amended to read:
165.813. (1) A person commits the crime of unlawful possession
of fictitious identification if the person possesses a personal
identification card containing identification information for a
fictitious person with the intent to use the personal
identification card to commit a crime.
(2) Unlawful possession of fictitious identification 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 possessed the personal
identification card solely for the purpose of enabling the person
to purchase alcohol { - ; - } or { + tobacco products. + }
{ - (b) Was under 18 years of age at the time of committing
the offense and the person possessed the personal identification
card solely for the purpose of enabling the person to purchase
tobacco products. - }
SECTION 14. ORS 339.883 is amended to read:
339.883. (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,
career and technical education schools or community colleges.
SECTION 15. ORS 433.835 is amended to read:
433.835. As used in ORS 433.835 to 433.875:
(1) 'Cigar bar' means a business that:
(a) Has on-site sales of cigars as defined in ORS 323.500;
(b) Has a humidor on the premises;
(c) Allows the smoking of cigars on the premises but prohibits
the smoking of all other tobacco products in any form including,
but not limited to, loose tobacco, pipe tobacco, cigarettes as
defined in ORS 323.010 and cigarillos as defined by the Oregon
Health Authority by rule;
(d) Has been issued and operates under a full on-premises sales
license issued under ORS 471.175;
(e) Prohibits persons under 21 years of age from entering the
premises and posts notice of the prohibition;
(f) Does not offer video lottery games as authorized under ORS
461.217;
(g) Has a maximum seating capacity of 40 persons;
(h) Has a ventilation system that is certified by the assistant
to the State Fire Marshal described in ORS 476.060 for the
jurisdiction in which the cigar bar is located as adequate to
remove the cigar smoke in the cigar bar and vents the smoke from
the cigar bar in a manner that prevents the smoke from entering
any other establishment; and
(i) Requires all employees to read and sign a document that
explains the dangers of exposure to secondhand smoke.
(2) 'Enclosed area' means all space between a floor and a
ceiling that is enclosed on three or more sides by permanent or
temporary walls or windows, exclusive of doors or passageways,
that extend from the floor to the ceiling.
(3) 'Place of employment' means every enclosed area under the
control of a public or private employer that employees frequent
during the course of employment, including but not limited to
work areas, employee lounges, vehicles that are operated in the
course of an employer's business that are not operated
exclusively by one employee, rest rooms, conference rooms,
classrooms, cafeterias, hallways, meeting rooms, elevators and
stairways. 'Place of employment' does not include a private
residence unless it is used as a child care facility as defined
in ORS 657A.250 or a facility providing adult day care as defined
in ORS 410.490.
(4) 'Public place' means any enclosed area open to the public.
(5) 'Smoke shop' means a business that:
(a) Is primarily engaged in the sale of tobacco products and
smoking instruments, with at least 75 percent of the gross
revenues of the business resulting from such sales;
(b) Prohibits persons under { - 18 - } { + 21 + } years of
age from entering the premises;
(c) Does not offer video lottery games as authorized under ORS
461.217, social gaming or betting on the premises;
(d) Does not sell or offer on-premises consumption of alcoholic
beverages; and
(e) Is a stand-alone business with no other businesses or
residential property attached to the premises.
(6) 'Smoking instrument' means any cigar, cigarette, pipe or
other smoking equipment.
SECTION 16. ORS 323.718 is amended to read:
323.718. (1) Each person accepting a purchase order for a
delivery sale, in connection with the delivery sale order, shall:
(a) Include as part of the shipping documents a clear and
conspicuous statement providing as follows: 'TOBACCO: OREGON LAW
PROHIBITS SHIPPING TO INDIVIDUALS UNDER { - 18 - } { + 21 + }
AND REQUIRES THE PAYMENT OF ALL APPLICABLE TAXES'; and
(b) Use a method of mail, shipping or other delivery of tobacco
described in this paragraph as follows:
(A) Unless subparagraph (B) of this paragraph applies, use a
method of shipping or other delivery that obligates the delivery
service to require:
(i) The consumer placing the delivery sale order, or another
individual of at least the legal minimum purchase age who resides
at the residence of the consumer, to sign to accept delivery of
the shipping container; and
(ii) Proof, in the form of a valid, government-issued
identification bearing a photograph of the individual who signs
to accept delivery of the shipping container, demonstrating that
the individual who signs to accept delivery:
(I) Is either the consumer or another individual residing at
the residence of the consumer; and
(II) Is at least the legal minimum purchase age, except that
proof of age is required only if the individual appears to be
under 27 years of age.
(B) If the person is fulfilling a purchase order for a delivery
sale by mailing tobacco, to the extent permitted by the United
States Postal Service, use a method of mailing that requires the
postal service to require:
(i) The consumer placing the delivery sale order, or another
individual of at least the legal minimum purchase age residing at
the residence of the consumer, to sign to accept delivery of the
shipping container; and
(ii) Proof, in the form of a valid, government-issued
identification bearing a photograph of the individual who signs
to accept delivery of the shipping container, demonstrating that
the individual who signs to accept delivery:
(I) Is either the consumer or another individual residing at
the residence of the consumer; and
(II) Is at least the legal minimum purchase age, except that
proof of age is required only if the individual appears to be
under 27 years of age.
(2) If the person accepting a purchase order for a delivery
sale delivers the tobacco without using a delivery service or the
United States Postal Service, the person shall comply with all
requirements of ORS 323.700 to 323.730 that apply to a delivery
service and shall be in violation of this section if the person
fails to comply with all requirements applicable to a delivery
service.
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