BILL ANALYSIS H.B. 2460 By: Seidlits (Armbrister) State Affairs 05-25-95 Senate Committee Report (Unamended) BACKGROUND In 1992, the Alcohol Drug Abuse and Mental Health Administration Reorganization Act, a federal law that provides for block grants to states for the purposes of funding substance abuse programs was passed. An amendment to the legislation was included which requires states to enact and enforce legislation prohibiting the sale and distribution of tobacco products to persons under the age of 18, or risk losing federal substance abuse block grants. PURPOSE As proposed, H.B. 2460 imposes regulation of the sale and distribution of tobacco products to minors under the age of 18. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 161H, Health and Safety Code, as follows: SUBCHAPTER H. SALE AND DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS Sec. 161.081. DEFINITIONS. Defines "cigarette," "commission," "distribute," "person," "proof of age," "public place," "sample," "sampling," and "tobacco product." Sec. 161.082. New heading: SALE OR DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS TO MINORS PROHIBITED. Redesignates existing Section 161.081. (a) Sets forth the actions which constitute an offense. (b) Requires a person engaged in the sale of distribution of cigarettes or tobacco products to demand proof of age from a prospective purchaser or recipient if the person has reason to believe that the prospective purchaser or recipient is younger than 18 years of age. (c) Provides that this section does not prohibit the distribution of a cigarette or tobacco product to a family member or to an employee when required in the performance of the employee's duties. (d) Makes a conforming change. (e) Provides that it is a defense to prosecution under this section that the person to whom the cigarette or tobacco product was sold or distributed presented proof of age to the defendant and the defendant reasonably relied on that proof of age. Deletes the defense of being presented an apparently valid Texas driver's license or an identification card, issued by the Department of Public Safety (DPS) and containing a physical description consistent with the person's appearance, that purported to establish that the person was 18 years of age or older. (f) Provides that if an offense under this section occurs in connection with a sale by an employee of the owner of a store in which cigarettes or tobacco products are sold at retail, the employee is criminally responsible for the offense and is subject to prosecution. Sets forth the provisions of responsibility if the offense occurs in connection with a sale through a vending machine. Sec. 161.083. New heading: NOTICE REQUIRED. Redesignated from existing Section 161.082. (a) Prohibits the required sign which states the liability associated with sale of cigarettes from being smaller than 93-1/2 square inches. (b) Sets forth the required language of the sign. (c)-(d) Make conforming changes. (e) Prohibits a notice regarding cigarettes or tobacco products, other than the notice required by this section, from being required to be posted or maintained in any store that sells cigarettes or tobacco products at retail. (f) Redesignated from existing Subsection (e). Removes the condition of intent from the offense of failure to post a notice under this section. Sec. 161.084. LOCATION OF VENDING MACHINES CONTAINING CIGARETTES OR TOBACCO PRODUCTS. (a) Prohibits a person from installing or maintaining a vending machine containing cigarettes or tobacco products in a place that is accessible to persons younger than 18 years of age. (b) Sets forth the conditions in which Subsection (a) does not apply. (c) Provides that a person commits a Class C misdemeanor if the person violates Subsection (a). Sec. 161.085. DISTRIBUTION OF SAMPLES. (a) Provides that a person commits an offense if the person distributes cigarette or tobacco product samples to certain persons. (b) Requires a person engaged in sampling to demand proof of age from a prospective recipient if the person has reason to believe that the prospective recipient is younger than 18 years of age. (c) Provides that an offense under Subsection (a) is a Class C misdemeanor. (d) Provides that it is a defense to prosecution under this section that the person to whom the cigarette or tobacco product sample was distributed presented proof of age to the defendant and the defendant reasonably relied on that proof of age. Sec. 161.086. OUT-OF-PACKAGE SALES. Provides that a person commits a Class C misdemeanor if the person sells cigarettes or smokeless tobacco products other than in an unopened package that originated with the manufacturer and that bears the health warning required by federal law. Sec. 161.087. POSSESSION, PURCHASE, AND RECEIPT OF CIGARETTES OR TOBACCO PRODUCTS BY MINORS PROHIBITED. (a) Sets forth the actions under which a person who is younger than 18 years of age commits an offense. (b) Provides that this section does not prohibit a person from possessing or accepting receipt of a cigarette or tobacco product from a family member or from an employer when required in the performance of the employee's duties. (c) Provides that an offense under this section is a Class C misdemeanor, with an exception. Requires the court to require the defendant to present evidence to the court, in the manner prescribed by the court, of satisfactory participation in and the completion of the smoking awareness course. (d) Authorizes the court, on the conviction of a defendant for an offense under this section, to order DPS to suspend the defendant's driver's license or permit, or if the defendant does not have a license or permit, to deny the issuance of a license or permit to the defendant. Requires the order to specify the period of suspension or denial, which may not exceed 180 days immediately following the date of the order. (e) Authorizes a person convicted of a violation of this section to apply to the court in which the person was convicted to have the conviction expunged. Requires the court to order the conviction and all complaints, verdicts, sentences, and other documents relating to the offense to be expunged from the applicant's record, and the conviction may not be shown or made known for any purpose if the court finds that the applicant successfully completed the smoking awareness course ordered by the court. (f) Authorizes a justice or municipal court to exercise jurisdiction over any matter in which a court may impose a requirement that a defendant attend a smoking awareness course or order the suspension or denial of a driver's license or permit under the conditions described by Subsection (c) or (d). (g) Provides that an offense under this section is not subject to suit under Title 3, Family Code. Sec. 161.088. NOTIFICATION OF EMPLOYEES. (a) Requires the owner of a store in which cigarettes or tobacco products are sold at retail to notify each individual employed by that person as a retail sales clerk of certain provisions of state law. (b) Requires the notice required by Subsection (a) to be provided before an individual begins work as a retail sales clerk. Requires the individual to signify that the individual has received the notice required by Subsection (a) by signing a form stating that the law has been fully explained, that the individual understands the law, and that the individual, as a condition of employment, agrees to comply with the law. (c) Requires each form signed by an individual under this section to indicate the date of the signature. Requires the employer to retain the form signed by each individual employed as a retail sales clerk until 120 days after the individual has left the employer's employ. (d) Provides that a person required by Subsection (a) to notify employees commits an offense if the person fails to provide the notice prescribed by this section. Provides that an offense under this subsection is a misdemeanor punishable by a fine of not less than $25 or more than $200. Provides that if a person has been previously convicted of an offense under this subsection within a two-year period, an offense is a misdemeanor punishable by a fine of not less than $100 or more than $500. Sec. 161.089. ENFORCEMENT; UNANNOUNCED INSPECTIONS. (a) Requires the Texas Commission on Alcohol and Drug Abuse (commission) to enforce this subchapter in partnership with county sheriffs and municipal chiefs of police and with their cooperation, and to ensure the state's compliance with Section 1926 of 42 U.S.C. Section 300x-26 (Public Health Services Act) and any implementing regulations adopted by the U.S. Department of Health and Human Services (department). Prohibits the commission from adopting rules, except as provided by Section 161.093, governing the subject matter of this subchapter. (b) Authorizes the commission to make block grants to counties and municipalities to be used by county sheriffs and municipal chiefs of police to enforce this subchapter in a manner that can reasonably be expected to reduce the extent to which cigarettes and tobacco products are sold or distributed to persons who are younger than 18 years of age. Requires random unannounced inspections to be conducted at various locations where cigarettes and tobacco products are sold or distributed to ensure compliance with this subchapter. Requires the commission to rely on sheriffs or chiefs of police or their employees to enforce this subchapter. Sec. 161.090. INSPECTION ASSISTANCE BY PERSONS YOUNGER THAN 18 YEARS OF AGE; REQUIREMENTS. (a) Requires the use of a person younger than 18 years of age to be conducted in such a fashion that promotes fairness. Authorizes a person to be enlisted by the commission to act as a minor decoy (decoy) to test compliance with this subchapter only if the requirements of this section are met. (b) Requires written parental consent to be obtained for the use of a person younger than 18 years of age to act as a minor decoy to test compliance with this subchapter. (c) Requires the decoy to be younger than 17 years of age at the time of the inspection. (d) Requires the decoy to have an appearance that would cause a reasonably prudent seller of tobacco products to request identification and proof of age. (e) Requires the decoy to either carry the decoy's own identification or to carry no identification. Requires a decoy who carries identification to present it upon request to any seller of tobacco products. (f) Requires the decoy to answer truthfully any questions about the minor's age. Sec. 161.091. REPORT. Requires the commission to annually prepare for submission by the governor to the secretary of the department the report required by the federal public Health Service Act. Sec. 161.092. STATEWIDE UNIFORMITY. (a) Requires this chapter to be implemented in an equitable and uniform manner throughout the state and to be enforced to ensure the eligibility for and receipt of any federal funds or grants that the state now receives or may receive relating to the provisions of this subchapter. (b) Prohibits a county, municipality, political subdivision of the state, or state agency from adopting or enforcing any ordinances, rules, or regulations concerning the sale, distribution, advertising, display, or promotion of cigarettes or tobacco products. Sec. 161.093. COMPLIANCE WITH FEDERAL LAW. (a) Authorizes the commission to assess an administrative penalty against a person who holds a permit issued under Chapter 154 or 155, Tax Code, for a violation of Section 161.082 or 161.083 by the permit holder or an employee of the permit holder. (b) Prohibits an administrative penalty for violation of Section 161.082 or 161.083 from exceeding $100 for the first violation or $250 for a second or subsequent violation within a 24-month period. (c) Sets forth the criteria to be considered in assessing penalties under Subsection (b). (d) Authorizes the penalty to include the suspension or revocation of a retailer's permit issued under Chapter 154 or 155, Tax Code, for a third or subsequent violation of Section 161.082 within a 24-month period, except that a suspension may not exceed seven days and a permit may not be revoked until the permit has been suspended at least once in the preceding 12-month period. (e) Requires the commission to provide written notice and a hearing under Chapter 2001, Government Code, before determining that a violation has occurred. Authorizes a permit holder to seek judicial review of an action of the commission suspending or revoking a permit under this section. Provides that the suspension or revocation is not effective until judicial review is complete. (f) Provides that it is a defense to the imposition of administrative penalties or the suspension or revocation of a permit under this section for a violation of Section 161.082 that the person to whom the cigarette or tobacco product was sold or distributed presented at the time of purchase or distribution an apparently valid proof of age. (g) Sets forth the conditions in which it is a defense that the employer acted in good faith regarding the suspension or revocation of a permit for a violation of Section 161.082. SECTION 2. Amends Chapter 154D, Tax Code, by adding Section 154.1016, as follows: Sec. 154.1016. SALES; MINIMUM PACKAGE SIZE. Prohibits a permit holder from selling or distributing cigarettes in a package that contains fewer than 20 individual cigarettes. SECTION 3. Amends Section 154.111(b), Tax Code, to require an application for a permit required by this chapter to be accompanied by, among other charges, a $50 fee for a retailers permit. Makes conforming changes. SECTION 4. Amends Section 154.121, Tax Code, as follows: Sec. 154.121. REVENUE. (a) Created from existing text. (b) Requires the revenue from the sale of permits to retailers to be deposited in the state treasury to the credit of a special account. Requires money from the account to be appropriated only to the commission for the Texas D.A.R.E. Institute for the institute's programs relating to tobacco enforcement projects and education and awareness concerning the use of drugs, alcohol, and tobacco. (c) Defines "Texas D.A.R.E. Institute." SECTION 5. Amends Section 154.602, Tax Code, to provide that the amount withheld from revenue from retailers under Section 154.111(b)(4) to be in proportion to the costs of issuing retailers' permits and the enforcement of this chapter on retail premises. Makes conforming and changes. SECTION 6. Amends Section 155.049(b), Tax Code, to make a conforming change. SECTION 7. Amends Section 155.058, Tax Code, to make conforming changes. SECTION 8. Repealer: Sections 154.111(c) and 155.049(c), Tax Code (Permit Year; Fees-Licensing Year; Fees). SECTION 9. Amends Chapter 155H, Tax Code, by adding Section 155.242, as follows: Sec. 155.242. ENFORCEMENT FUNDS: RETAILER'S PERMIT REVENUE. Authorizes the legislature to appropriate money from the revenue received from permits issued to retailers under Section 155.049(b)(4) to the treasurer for the administration of the duties of the treasurer in issuing those permits and in enforcing this chapter on retail premises. Requires the amounts appropriated under this section to be taken from revenue received from the permits before the revenue is allocated under Section 155.058 to the account specified by that section and to be deposited to the credit of the treasury fiscal agency fund. SECTION 10. Requires the notice required by Section 161.088, Health and Safety Code, as added by this Act, to be given to each individual who on the effective date of this Act, is working as a retail sales clerk in a retail establishment that sells cigarettes or tobacco products. SECTION 11. Makes application of this Act prospective. SECTION 12. (a) Effective date: September 1, 1995. (b) Effective date of Section 161.084, Health and Safety Code: January 1, 1996. (c) Makes application of Section 2 of this Act prospective beginning January 1, 1996. (d) Makes application of Sections 3 and 6 of this Act prospective beginning January 1, 1996. SECTION 13. Emergency clause.