CONFERENCE COMMITTEE REPORT
DIGEST FOR EHB 1788
Citations Affected:
IC 6-7-2-11
;
IC 7.1-6-2-6
;
IC 7.1-6-2-8
;
IC 16-18-2-323.1
;
IC 16-18-2-323.4
;
IC 16-41-37
; IC 24-3;
IC 35-46-1.
Synopsis: Sale of tobacco. Conference committee report for EHB 1788. Provides that a
cigarette distributor with five consecutive years of good credit standing with the state is not
required to post a bond as a condition of paying for revenue stamps within 30 days of the
purchase date. Requires a cigarette distributor to include an invoice in each shipment or delivery
of cigarettes to a retailer. Requires a retailer to keep an invoice for at least two weeks.
Authorizes the department of state revenue (department) or the alcohol and tobacco commission
(commission) to impose a civil penalty upon a retailer who fails to produce an invoice or other
evidence that cigarettes were purchased from a legitimate distributor. Permits the state to seize
undocumented cigarettes. Increases the penalty for selling cigarettes below cost from a Class
C to a Class A infraction and deposits monetary judgments in the commission's enforcement and
administration fund. Prohibits smoking on a school bus during a school week or a school
activity. Renames the youth tobacco education and enforcement fund the Richard D. Doyle
youth tobacco education and enforcement fund. Provides that excess escrow payments made in
Indiana by a nonparticipating tobacco product manufacturer revert to the nonparticipating
tobacco product manufacturer. Requires a tobacco product manufacturer to: (1) certify that it
is a participating manufacturer in the tobacco master settlement agreement or maintain a
qualified escrow fund; and (2) list the manufacturer's brand families of cigarettes. Requires the
attorney general to electronically publish a directory of tobacco product manufacturers and
brand families and notify a cigarette distributor at least 30 days before the attorney general
removes a tobacco product manufacturer or brand family from the directory. Prohibits the
attorney general from restoring a tobacco product manufacturer or brand family to the directory
until the tobacco product manufacturer refunds any money due a distributor, stamping agent,
or retailer. Requires a foreign nonparticipating manufacturer to appoint an agent for service of
process. Provides that: (1) the department may revoke or suspend the license of; and (2) the
department or commission may impose a civil penalty on; a distributor or stamping agent that
affixes a stamp on or sells cigarettes of a manufacturer or brand family that is not listed in the
directory. Deposits the civil penalties in the commission's enforcement and administration fund.
Allows the state to recover the costs of an action to enforce the certification requirements. (This
conference committee report: (1) requires a distributor to include an invoice in each
shipment or delivery of cigarettes to a retailer; (2) requires a retailer to retain each invoice
for at least two weeks; (3) requires a distributor to provide an invoice to a retailer upon
request; (4) prohibits smoking on a school bus during a school week or a school activity;
(5) provides that excess escrow payments made in Indiana by a nonparticipating tobacco
product manufacturer revert to the nonparticipating tobacco product manufacturer; (6)
requires the attorney general to notify a cigarette distributor or stamping agent at least
30 days before the attorney general removes a tobacco product manufacturer or brand
family from the directory; (7) prohibits the attorney general from restoring a tobacco
product manufacturer or brand family to the directory until the tobacco product
manufacturer refunds any money due a distributor, stamping agent, or retailer; (8)
increases the penalty for selling cigarettes below cost from a Class C to a Class A
infraction and deposits monetary judgments in the commission's enforcement and
administration fund; and (9) deposits civil penalties for selling unlisted cigarettes in the
commission's enforcement and administration fund.)
Effective: July 1, 2003.
CONFERENCE COMMITTEE REPORT
MR. PRESIDENT:
Your Conference Committee appointed to confer with a like committee from the House
upon Engrossed Senate Amendments to Engrossed House Bill No. 1788 respectfully reports
that said two committees have conferred and agreed as follows to wit:
that the House recede from its dissent from all Senate amendments and that
the House now concur in all Senate amendments to the bill and that the bill
be further amended as follows:
Delete everything after the enacting clause and insert the following:
SOURCE: IC 6-7-1-17; (03)CC178805.1.1. -->
SECTION 1.
IC 6-7-1-17
, AS AMENDED BY P.L.192-2002(ss),
SECTION 136, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 17. (a) Distributors who hold
certificates and retailers shall be agents of the state in the collection of
the taxes imposed by this chapter and the amount of the tax levied,
assessed, and imposed by this chapter on cigarettes sold, exchanged,
bartered, furnished, given away, or otherwise disposed of by
distributors or to retailers. Distributors who hold certificates shall be
agents of the department to affix the required stamps and shall be
entitled to purchase the stamps from the department at a discount of
one and two-tenths percent (1.2%) of the amount of the tax stamps
purchased, as compensation for their labor and expense.
(b) The department may permit distributors who hold certificates and
who are admitted to do business in Indiana to pay for revenue stamps
within thirty (30) days after the date of purchase. However, the
privilege is extended upon the express condition that:
(1) except as provided in subsection (c), a bond or letter of credit
satisfactory to the department, in an amount not less than the sales
price of the stamps, is filed with the department; and
(2) proof of payment is made of all local property, state income,
and excise taxes for which any such distributor may be liable. The
bond or letter of credit, conditioned to secure payment for the
stamps, shall be executed by the distributor as principal and by a
corporation duly authorized to engage in business as a surety
company or financial institution in Indiana.
(c) If
(1) there is an increase in the amount of the tax imposed upon
cigarettes under this chapter; and
(2) a distributor has at least five (5) consecutive years of good
credit standing with the state, as of the effective date of the tax
increase described in subdivision (1);
the amount of the bond required by subsection (b)(1) remains the same
as before the increase in the tax on cigarettes took effect. the
distributor shall not be required to post a bond or letter of credit
under subsection (b).
SOURCE: IC 6-7-1-18; (03)CC178805.1.2. -->
SECTION 2.
IC 6-7-1-18
IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 18. Every distributor, upon the
receipt of cigarettes taxed under this chapter, shall cause each
individual package to have the requisite denomination and amount of
stamps firmly affixed. Every retailer, upon receipt of cigarettes not
having the proper amount of stamps firmly affixed, to each individual
package, or stamped by a meter stamping machine, by a distributor
shall stamp or firmly affix stamps immediately on each individual
package. Provided, however, that any distributor engaged in interstate
business, shall be permitted to set aside such part of his stock as may
be necessary for the conduct of such interstate business without
affixing the stamps required by this chapter. Every distributor, at the
time of shipping or delivering any cigarettes, shall make a duplicate
invoice, showing complete details of each transaction, and shall retain
the duplicate subject to the inspection by the department or its agent.
Every distributor shall include with each shipment or delivery of
cigarettes an invoice showing complete details of the transactions.
Every retailer shall retain for not less than two (2) weeks the
invoice included with each shipment or delivery of cigarettes
subject to inspection by the department or its agent. A retailer may
request a duplicate invoice from a distributor.
SOURCE: IC 6-7-2-11; (03)CC178805.1.3. -->
SECTION 3.
IC 6-7-2-11
IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 11. The department:
(1) may revoke or suspend a license issued under this chapter for
any violation of this chapter or
IC 6-7-1-18
by the licensee; and
(2) may not issue a license under this chapter to an applicant
within six (6) months after the revocation of that applicant's
license.
SOURCE: IC 7.1-6-2-6; (03)CC178805.1.4. -->
SECTION 4.
IC 7.1-6-2-6
, AS AMENDED BY P.L.1-2002,
SECTION 36, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 6. (a) The
Richard D. Doyle youth tobacco
education and enforcement fund is established. The fund shall be
administered by the commission.
(b) Expenses of administering the fund shall be paid from money in
the fund.
(c) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested.
(d) Money in the fund at the end of a state fiscal year does not revert
to the state general fund.
(e) Money in the fund shall be used for the following purposes:
(1) For youth smoking prevention education. The commission may
contract with the state department of health or the office of the
secretary of family and social services for youth smoking
prevention education programs.
(2) For education and training of retailers who sell tobacco
products. The commission may contract with education and
training programs of the office of the secretary of family and social
services, the division of mental health and addiction, enforcement
officers, or a program approved by the commission.
(3) For the commission, for enforcement of youth tobacco laws.
SOURCE: IC 7.1-6-2-8; (03)CC178805.1.5. -->
SECTION 5.
IC 7.1-6-2-8
, AS ADDED BY P.L.204-2001, SECTION
58, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2003]: Sec. 8. (a) This section applies whenever a civil penalty payable
to the Richard D. Doyle youth tobacco education and enforcement
fund is imposed.
(b) The person liable for the civil penalty shall pay the full amount
of the civil penalty to the commission within thirty (30) days after final
judgment.
(c) A person who fails to pay a civil penalty within the time specified
in subsection (b) is liable for a late penalty equal to the greater of the
following:
(1) Twenty-five percent (25%) of the amount of the civil penalty
imposed under
IC 35-46-1.
(2) The lesser of the following:
(A) Twenty-five dollars ($25) multiplied by the number of days
that have elapsed after the date that the civil penalty was
imposed by a court.
(B) Five thousand dollars ($5,000).
(d) A person who fails to pay a civil penalty within the time specified
in subsection (b) is liable for interest on the unpaid amount of the:
(1) civil penalty imposed by a court; and
(2) late penalty imposed under this section.
The interest rate is the adjusted rate of interest as determined under
IC 6-8.1-10-1
payable from the date that payment of the amount was
due.
(e) A person who fails to pay a civil penalty within the time specified
in subsection (b) is liable for the reasonable documented out-of-pocket
expenses incurred in pursuing collection efforts.
(f) The commission shall collect the following:
(1) Civil penalties imposed by a court.
(2) Late penalties imposed under this section.
(3) Interest imposed under this section.
(4) Reasonable documented out-of-pocket expenses incurred in
pursuing collection efforts.
(g) Late penalties and interest imposed under this section shall be
deposited in the Richard D. Doyle youth tobacco education and
enforcement fund established by section 6 of this chapter.
SOURCE: IC 16-18-2-323.1; (03)CC178805.1.6. -->
SECTION 6.
IC 16-18-2-323.1
IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 323.1. "School bus", for purposes
of
IC 16-41-37
, has the meaning set forth in
IC 16-41-37-2.3.
SOURCE: IC 16-18-2-323.4; (03)CC178805.1.7. -->
SECTION 7.
IC 16-18-2-323.4
IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 323.4. "School week", for
purposes of
IC 16-41-37
, has the meaning set forth in
IC 16-41-37-2.7.
SOURCE: IC 16-41-37-2.3; (03)CC178805.1.8. -->
SECTION 8.
IC 16-41-37-2.3
IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2003]: Sec. 2.3. As used in this chapter, "school bus" means a
motor vehicle that is:
(1) designed and constructed for the accommodation of at least
ten (10) passengers;
(2) owned or operated by a public or governmental agency, or
privately owned and operated for compensation; and
(3) used for the transportation of school children to and from
the following:
(A) School.
(B) School athletic games or contests.
(C) Other school functions.
SOURCE: IC 16-41-37-2.7; (03)CC178805.1.9. -->
SECTION 9.
IC 16-41-37-2.7
IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2003]: Sec. 2.7. As used in this chapter, "school week" means a
normal Monday through Friday week that contains three (3) or
more days that each contain more than four (4) hours of classroom
instruction.
SOURCE: IC 16-41-37-4; (03)CC178805.1.10. -->
SECTION 10.
IC 16-41-37-4
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 4. A person who
smokes:
(1) in a public building, except in an area designated as a smoking
area under section 5 of this chapter;
(2) in the retail area of a grocery store or drug store that is
designated as a nonsmoking area by the store's proprietor; or
(3) in the dining area of a restaurant that is designated and posted
as the restaurant's nonsmoking area by the restaurant's proprietor;
or
(4) in a school bus during a school week or while the school bus
is being used for a purpose described in section 2.3(3) of this
chapter;
commits a Class B infraction. However, the violation is a Class A
infraction if the person has at least three (3) previous unrelated
judgments for violating this section that are accrued within the twelve
(12) months immediately preceding the violation.
SOURCE: IC 24-3-2-2; (03)CC178805.1.11. -->
SECTION 11.
IC 24-3-2-2
, AS AMENDED BY P.L.204-2001,
SECTION 61, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 2. Unless the context in this chapter requires
otherwise, the term:
(a) "Cigarette" shall mean and include any roll for smoking made
wholly or in part of tobacco, irrespective of size or shape and
irrespective of tobacco being flavored, adulterated, or mixed with any
other ingredient, where such roll has a wrapper or cover made of paper
or any other material; provided the definition in this paragraph shall not
be construed to include cigars.
(b) "Person" or the term "company", used in this chapter
interchangeably, means and includes any individual, assignee, receiver,
commissioner, fiduciary, trustee, executor, administrator, institution,
bank, consignee, firm, partnership, limited liability company, joint
vendor, pool, syndicate, bureau, association, cooperative association,
society, club, fraternity, sorority, lodge, corporation, municipal
corporation, or other political subdivision of the state engaged in
private or proprietary activities or business, estate, trust, or any other
group or combination acting as a unit, and the plural as well as the
singular number, unless the intention to give a more limited meaning
is disclosed by the context.
(c) "Distributor" shall mean and include every person who sells,
barters, exchanges, or distributes cigarettes in the state of Indiana to
retail dealers for the purpose of resale, or who purchases for resale
cigarettes from a manufacturer of cigarettes or from a wholesaler,
jobber, or distributor outside the state of Indiana who is not a
distributor holding a registration certificate issued under the provisions
of
IC 6-7-1.
(d) "Retailer" shall mean every person, other than a distributor, who
purchases, sells, offers for sale, or distributes cigarettes to consumers
or to any person for any purpose other than resale, irrespective of
quantity or amount or the number of sales.
(e) "Sell at retail", "sale at retail", and "retail sales" shall mean and
include any transfer of title to cigarettes for a valuable consideration
made in the ordinary course of trade or usual conduct of the seller's
business to the purchaser for consummation or use.
(f) "Sell at wholesale", "sale at wholesale", and "wholesale sales"
shall mean and include any transfer of title to cigarettes for a valuable
consideration made in the ordinary course of trade or usual conduct of
a distributor's business.
(g) "Basic cost of cigarettes" shall mean the invoice cost of cigarettes
to the retailer or distributor, as the case may be, or the replacement cost
of cigarettes to the retailer or distributor, as the case may be, within
thirty (30) days prior to the date of sale, in the quantity last purchased,
whichever is the lower, less all trade discounts and customary
discounts for cash, plus the cost at full face value of any stamps which
may be required by
IC 6-7-1
, if not included by the manufacturer in his
selling price to the distributor.
(h) "Department" shall mean the alcohol and tobacco commission or
its duly authorized assistants and employees. and any other board,
commission, agency, or other entity of the state of Indiana which may
be designated by the governor to administer and enforce the provisions
of this chapter; and the governor is hereby vested with power and
authority to designate and to transfer to another department, board,
commission, agency, or other entity of the state of Indiana the
administration and enforcement of the provisions of this chapter.
(i) "Cost to the retailer" shall mean the basic cost of cigarettes to the
retailer, plus the cost of doing business by the retailer as evidenced by
the standards and methods of accounting regularly employed by him in
his allocation of overhead costs and expenses paid or incurred and must
include without limitation labor (including salaries of executives and
officers), rent, depreciation, selling costs, maintenance of equipment,
delivery costs, all types of licenses, taxes, insurance, and advertising;
however, any retailer who, in connection with the retailer's purchase,
receives not only the discounts ordinarily allowed upon purchases by
a retailer, but also, in whole or in part, discounts ordinarily allowed on
purchases by a distributor shall, in determining costs to the retailer
pursuant to this section, add the cost to the distributor, as defined in
paragraph (j), to the basic cost of cigarettes to said retailer as well as
the cost of doing business by the retailer. In the absence of proof of a
lesser or higher cost of doing business by the retailer making the sale,
the cost of doing business by the retailer shall be presumed to be eight
percent (8%) of the basic cost of cigarettes to the retailer. In the
absence of proof of a lesser or higher cost of doing business, the cost
of doing business by the retailer, who in connection with the retailer's
purchase receives not only the discounts ordinarily allowed upon
purchases by a retailer, but also, in whole or in part, the discounts
ordinarily allowed upon purchases by a distributor, shall be presumed
to be eight percent (8%) of the sum of the basic cost of cigarettes plus
the cost of doing business by the distributor.
(j) "Cost to the distributor" shall mean the basic cost of cigarettes to
the distributor, plus the cost of doing business by the distributor as
evidenced by the standards and methods of accounting regularly
employed by him in his allocation of overhead costs and expenses, paid
or incurred, and must include without limitation labor costs (including
salaries of executives and officers), rent, depreciation, selling costs,
maintenance of equipment, delivery costs, all types of licenses, taxes,
insurance, and advertising. In the absence of proof of a lesser or higher
cost of doing business by the distributor making the sale, the cost of
doing business by the wholesaler shall be presumed to be four percent
(4%) of the basic cost of cigarettes to the distributor, plus cartage to the
retail outlet, if performed or paid for by the distributor, which cartage
cost, in the absence of proof of a lesser or higher cost, shall be deemed
to be one-half of one percent (0.5%) of the basic cost of cigarettes to
the distributor.
(k) "Registration certificate" refers to the registration certificate
issued to cigarette distributors by the department of state revenue
under
IC 6-7-1-16.
SOURCE: IC 24-3-2-3; (03)CC178805.1.12. -->
SECTION 12.
IC 24-3-2-3
IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 3. (a) It is a Class C Class A
infraction for a retailer or distributor, with intent to injure competitors
or destroy or substantially lessen competition, to offer to sell or sell at
retail or wholesale cigarettes at less than the cost to him. The
registration certificate held by such a distributor under
IC 6-7-1
may be
revoked by the department for the balance of the term thereof.
(b) Evidence of offering to sell or sale of cigarettes by any retailer or
distributor at less than the cost to him is prima facie evidence of intent
to injure competitors and to destroy or substantially lessen competition.
(c) Notwithstanding
IC 34-28-5-5
(c), a judgment for a violation
of this section shall be deposited in the enforcement and
administration fund established under
IC 7.1-4-10-1.
SOURCE: IC 24-3-2-4.7; (03)CC178805.1.13. -->
SECTION 13.
IC 24-3-2-4.7
IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2003]: Sec. 4.7. (a) A retailer shall produce an invoice or other
documentary evidence proving that the retailer obtained cigarettes
or a tobacco product (as defined in
IC 6-7-2-5
) from a distributor
that holds a valid registration certificate.
(b) Each day a retailer fails to produce an invoice or other
evidence under subsection (a) constitutes a separate violation of
this section.
(c) This subsection applies in addition to or instead of any other
civil or criminal penalty. The department or the department of
state revenue may impose on a retailer that violates subsection (a)
a civil penalty that does not exceed the greater of:
(1) five hundred percent (500%) of the retail value of the
cigarettes described in subsection (a); or
(2) five thousand dollars ($5,000);
for each violation.
(d) In addition to any other penalty described in this section, the
department or the department of state revenue may seize the
cigarettes or other tobacco products for which the retailer is
unable to produce the invoice or documentary evidence described
in subsection (a). The seized cigarettes or other tobacco products
shall be forfeited to the state and destroyed.
(e) Civil penalties collected under this chapter shall be deposited
as follows:
(1) Seventy percent (70%) to the enforcement and
administration fund established under
IC 7.1-4-10.
(2) Thirty percent (30%) to the state general fund for the use
of the department of state revenue.
SOURCE: IC 24-3-3-13; (03)CC178805.1.14. -->
SECTION 14.
IC 24-3-3-13
, AS ADDED BY P.L.223-1999,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 13.
(a) Subsection (b) applies unless and until
all or any part of subsection (b) is held to be unconstitutional or
otherwise unenforceable. If all or any part of subsection (b) or the
application of all or any part of subsection (b) to a person, an
entity, or a circumstance is held to be unconstitutional or invalid
by a court, the unconstitutionality or invalidity does not affect
other provisions of this chapter, and subsection (c) controls.
Subsection (c) applies unless and until all or any part of subsection
(c) is held to be unconstitutional or otherwise unenforceable. If all
or any part of subsection (c) or the application of all or any part of
subsection (c) to a person, an entity, or a circumstance is held to be
unconstitutional or invalid by a court, the unconstitutionality or
invalidity does not affect other provisions of this chapter, and
subsection (d) controls.
(b) A tobacco product manufacturer that places funds into
escrow under section 12(2) of this chapter shall receive the interest
or other appreciation on such funds as earned. The funds shall be
released from escrow only under the following circumstances:
(1) To pay a judgment or settlement on any released claim
brought against the tobacco product manufacturer by the state
or any releasing party located or residing in Indiana. Funds
shall be released from escrow under this subdivision:
(A) in the order in which they were placed into escrow; and
(B) only to the extent and at the time necessary to make
payments required under such a judgment or settlement.
(2) To the extent that a tobacco product manufacturer
establishes that the amount the tobacco product manufacturer
is required to place in escrow on account of units sold in
Indiana in a particular year exceeds the master settlement
agreement payments the tobacco product manufacturer would
have been required to make on account of units sold in Indiana
if the tobacco product manufacturer were a participating
manufacturer, as determined under section IX(i) of the master
settlement agreement and after final determination of all
adjustments, the excess payments shall be released from
escrow and shall revert to the tobacco product manufacturer.
(3) To the extent not released from escrow under subdivision
(1) or (2), funds shall be released from escrow and revert back
to the tobacco product manufacturer twenty-five (25) years
after the date on which the funds were placed into escrow.
(c) This subsection applies only if subsection (b) is held to be
unconstitutional or otherwise unenforceable. A tobacco product
manufacturer that places funds into escrow under section 12(2) of
this chapter shall receive the interest or other appreciation on the
funds as earned. The funds shall be released from escrow only
under the following circumstances:
(1) To pay a judgment or settlement on any released claim
brought against the tobacco product manufacturer by the state
or any releasing party located or residing in Indiana. Funds
shall be released from escrow under this subdivision:
(A) in the order in which they were placed into escrow; and
(B) only to the extent and at the time necessary to make
payments required under such a judgment or settlement.
(2) To the extent not released from escrow under subdivision
(1), funds shall be released from escrow and revert back to the
tobacco product manufacturer twenty-five (25) years after the
date on which the funds were placed into escrow.
(d) This subsection applies only if subsections (b) and (c) are held
to be unconstitutional or otherwise unenforceable. A tobacco
product manufacturer that places funds into escrow under section 12(2)
of this chapter shall receive the interest or other appreciation on such
funds as earned. Such funds themselves shall be released from escrow
only under the following circumstances:
(1) To pay a judgment or settlement on any released claim brought
against such tobacco product manufacturer by the state or any
releasing party located or residing in Indiana. Funds shall be
released from escrow under this subdivision:
(A) in the order in which they were placed into escrow; and
(B) only to the extent and at the time necessary to make
payments required under such a judgment or settlement.
(2) To the extent that a tobacco product manufacturer establishes
that the amount it was required to place into escrow in a particular
year was greater than the state's allocable share of the total
payments that the manufacturer would have been required to make
in that year under the Master Settlement Agreement (as determined
pursuant to section IX(i)(2) of the Master Settlement Agreement,
and before any of the adjustments or offsets described in section
IX(i)(3) of that Agreement other than the Inflation Adjustment)
had it been a participating manufacturer, the excess shall be
released from escrow and revert back to the tobacco product
manufacturer.
(3) To the extent not released from escrow under subdivision (1)
or (2), funds shall be released from escrow and revert back to such
tobacco product manufacturer twenty-five (25) years after the date
on which the funds were placed into escrow.
SOURCE: IC 24-3-5.4; (03)CC178805.1.15. -->
SECTION 15.
IC 24-3-5.4
IS ADDED TO THE INDIANA CODE
AS A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]:
Chapter 5.4. Master Settlement Agreement Protection Act
Sec. 1. As used in this chapter, "brand family" means cigarettes
that are:
(1) sold under the same trademark; and
(2) differentiated from one another by means of modifiers such
as menthol, lights, kings, or 100s.
The term includes the use of a brand name, trademark, logo,
symbol, motto, selling message, recognizable pattern of colors, or
other indicia of product identification that is identical or similar to
or identifiable with a previously known brand of cigarettes.
Sec. 2. As used in this chapter, "cigarette" has the meaning set
forth in
IC 24-3-3-5.
Sec. 3. As used in this chapter, "commission" means the alcohol
and tobacco commission created by IC 7.1-2-1-1.
Sec. 4. As used in this chapter, "department" means the
department of state revenue.
Sec. 5. As used in this chapter, "distributor" means a person
that:
(1) purchases cigarettes on which the tax under
IC 6-7-1
is not
paid; and
(2) stores, sells, or otherwise disposes of the cigarettes.
Sec. 6. As used in this chapter, "master settlement agreement"
has the meaning set forth in
IC 24-3-3-6.
Sec. 7. As used in this chapter, "nonparticipating manufacturer"
means a tobacco product manufacturer that is not a participating
manufacturer.
Sec. 8. As used in this chapter, "participating manufacturer" has
the meaning set forth in
IC 24-3-3-12
(1).
Sec. 9. As used in this chapter, "qualified escrow fund" has the
meaning set forth in
IC 24-3-3-7.
Sec. 10. As used in this chapter, "stamping agent" means a
person that may affix a stamp to a package of cigarettes under
IC 6-7-1-15.
Sec. 11. As used in this chapter, "tobacco product manufacturer"
has the meaning set forth in
IC 24-3-3-10.
Sec. 12. As used in this chapter, "units sold" has the meaning set
forth in
IC 24-3-3-11.
Sec. 13. (a) Not later than April 30 of each year, a tobacco
product manufacturer whose cigarettes are sold in Indiana,
whether directly or through a distributor, retailer, or similar
intermediary, shall certify to the department and the attorney
general that, as of the date of the certification, the tobacco product
manufacturer is:
(1) a participating manufacturer; or
(2) in full compliance with
IC 24-3-3.
The department shall prescribe the form of the certification.
(b) A participating manufacturer shall include in a certification
under subsection (a) a list of the participating manufacturer's
brand families. The participating manufacturer shall update the
list by filing a supplemental certification with the department and
the attorney general not less than thirty (30) days before the
participating manufacturer adds a brand family or otherwise
modifies the list of brand families.
(c) A nonparticipating manufacturer shall include in a
certification under subsection (a) a list of the nonparticipating
manufacturer's brand families, including the following:
(1) A separate listing of each brand family that was sold in
Indiana during the calendar year before the year in which the
certification is filed.
(2) A separate listing of the number of units sold for each
brand family that was sold in Indiana during the calendar year
before the year in which the certification is filed.
(3) An indication of any brand family that was sold in Indiana
during the calendar year before the year in which the
certification is filed and that is not sold in Indiana as of the
date of the certification.
(4) The name and address of any other manufacturer of a
brand family that was sold in Indiana during the calendar year
before the year in which the certification is filed.
(d) A nonparticipating manufacturer shall file a supplemental
certification with the attorney general not less than thirty (30) days
before the nonparticipating manufacturer adds to or otherwise
modifies its list of brand families.
(e) A nonparticipating manufacturer shall certify the following
in a certification under subsection (a):
(1) The nonparticipating manufacturer:
(A) is registered to do business in Indiana; or
(B) has appointed an agent for service of process and
provided notice under section 16 of this chapter.
(2) The nonparticipating manufacturer has:
(A) established and continues to maintain a qualified escrow
fund; and
(B) executed a qualified escrow agreement that:
(i) the attorney general has approved; and
(ii) governs the qualified escrow fund.
(3) The nonparticipating manufacturer is in full compliance
with:
(A) this section; and
(B)
IC 24-3-3.
(4) The name, address, and telephone number of the financial
institution that holds the nonparticipating manufacturer's
qualified escrow fund.
(5) The account number and any subaccount numbers of the
nonparticipating manufacturer's qualified escrow fund.
(6) The amounts and dates of deposits that the
nonparticipating manufacturer placed in the qualified escrow
fund for cigarettes sold in Indiana during the calendar year
before the year in which the certification is filed, including any
verification required by the attorney general.
(7) The amounts and dates of withdrawals or transfers of funds
that the nonparticipating manufacturer made from a qualified
escrow fund into which the nonparticipating manufacturer
made or makes escrow payments under
IC 24-3-3.
(f) A tobacco product manufacturer shall not include a brand
family in the tobacco product manufacturer's certification under
subsection (a) unless:
(1) in the case of a participating manufacturer, the
participating manufacturer affirms that the brand family is
considered the participating manufacturer's cigarettes for
purposes of calculating the participating manufacturer's
payments under the master settlement agreement for the year
in which the certification is filed in the volume and shares
determined under the master settlement agreement; or
(2) in the case of a nonparticipating manufacturer, the
nonparticipating manufacturer affirms that the brand family
is considered to be the nonparticipating manufacturer's
cigarettes for purposes of
IC 24-3-3-12
(2).
(g) This section does not limit or otherwise affect the state's right
to maintain that a brand family constitutes cigarettes of a different
tobacco product manufacturer for purposes of calculating
payments under the master settlement agreement or for purposes
of
IC 24-3-3.
(h) A nonparticipating manufacturer shall maintain all invoices
and documentation of sales and any other relevant information for
a period of five (5) years unless otherwise required by law to
maintain the invoices, documentation of sales, or other relevant
information for more than five (5) years.
Sec. 14. (a) Not later than July 1 of each year, the attorney
general shall make available to the public by publishing on
accessIndiana (as defined in
IC 5-21-1-1.5
) a directory listing all
brand families listed in certifications filed under section 13 of this
chapter.
(b) A directory described in subsection (a) shall not include the
name or brand families of a nonparticipating manufacturer:
(1) that fails to comply with section 13 of this chapter; or
(2) whose certification fails to comply with section 13(c) or
13(e) of this chapter, unless the attorney general determines
that the failure has been remedied.
(c) The directory may not include a tobacco product
manufacturer or a brand family if the attorney general concludes
that:
(1) in the case of a nonparticipating manufacturer, all escrow
payments required under
IC 24-3-3-12
for any period for any
brand family, whether or not listed by the nonparticipating
manufacturer, have not been fully paid into a qualified escrow
fund governed by a qualified escrow agreement that has been
approved by the attorney general; or
(2) all outstanding final judgments, including interest on the
judgments, for violations of
IC 24-3-3
have not been fully
satisfied for the tobacco product manufacturer or brand
family.
(d) The attorney general shall update the directory as necessary
to correct mistakes or to add or remove a tobacco product
manufacturer or brand family to keep the directory in conformity
with the requirements of this chapter.
(e) The attorney general shall post in the directory and transmit
by electronic mail or other means to each distributor or stamping
agent notice of any removal from the directory of a tobacco
product manufacturer or brand family not later than thirty (30)
days before the attorney general removes the tobacco product
manufacturer or brand family from the directory.
(f) Unless otherwise provided in an agreement between a tobacco
product manufacturer and a distributor or stamping agent, a
distributor or stamping agent is entitled to a refund from a tobacco
product manufacturer for any money paid by the distributor or
stamping agent to the tobacco product manufacturer for any
cigarettes of the tobacco product manufacturer or brand family
that:
(1) are in the possession of the distributor or stamping agent
on; or
(2) the distributor or stamping agent receives from a retailer
after;
the date on which the tobacco product manufacturer or brand
family is removed from the directory.
(g) Unless otherwise provided in an agreement between a retailer
and a distributor, stamping agent, or tobacco product
manufacturer, a retailer is entitled to a refund from a distributor,
stamping agent, or tobacco product manufacturer for any money
paid by the retailer to the distributor, stamping agent, or tobacco
product manufacturer for any cigarettes of the tobacco product
manufacturer or brand family that are in the possession of the
retailer on the date on which the tobacco product manufacturer or
brand family is removed from the directory.
(h) The attorney general shall not restore a tobacco product
manufacturer or brand family to the directory until the tobacco
product manufacturer pays a distributor, stamping agent, or
retailer any refund due under subsection (f) or (g).
(i) A distributor or stamping agent shall provide and update as
necessary an electronic mail address to the attorney general for
purposes of receiving a notification required by this chapter.
Sec. 15. A person may not:
(1) affix a stamp to a package or other container of cigarettes;
or
(2) sell or offer or possess for sale in Indiana cigarettes;
of a tobacco product manufacturer or brand family that is not
listed in a directory under section 14 of this chapter.
Sec. 16. (a) A foreign nonparticipating manufacturer that has not
registered to do business in Indiana shall, as a condition precedent
to having the foreign nonparticipating manufacturer's brand
families listed in a directory under section 14 of this chapter,
appoint and engage without interruption the services of an agent
in Indiana to act as the foreign nonparticipating manufacturer's
agent for the service of process. Service on an agent under this
section constitutes legal and valid service of process on the foreign
nonparticipating manufacturer that appointed and engaged the
services of the agent. The foreign nonparticipating manufacturer
shall provide the following information to the department and the
attorney general:
(1) The name, address, and telephone number of the agent.
(2) Proof of the appointment of the agent.
(3) The availability of the agent.
(4) Any other information required by the department or the
attorney general.
(b) A foreign nonparticipating manufacturer shall provide notice
to the department and the attorney general not less than thirty (30)
days before the foreign nonparticipating manufacturer terminates
the authority of an agent appointed under this section. The foreign
nonparticipating manufacturer shall provide proof to the
satisfaction of the attorney general of the appointment of a new
agent not less than five (5) days before the foreign nonparticipating
manufacturer terminates an existing agency appointment.
(c) If an agent terminates an agency appointment, the foreign
nonparticipating manufacturer shall:
(1) notify the department and the attorney general of the
termination not more than five (5) days after the termination;
and
(2) provide proof to the satisfaction of the attorney general of
the appointment of a new agent.
(d) A foreign nonparticipating manufacturer that:
(1) sells products in Indiana; and
(2) has not appointed an agent under this section;
is considered to have appointed the secretary of state as the foreign
nonparticipating manufacturer's agent. The appointment of the
secretary of state under this subsection as the foreign
nonparticipating manufacturer's agent does not satisfy the
condition precedent to having the foreign nonparticipating
manufacturer's brand families listed in a directory under section
14 of this chapter.
Sec. 17. (a) This section applies after July 31, 2003.
(b) Not later than January 20, April 20, July 20, and October 20
of a calendar year, a distributor or stamping agent shall submit the
following information to the department, the commission, and the
attorney general:
(1) A list by brand family of the total number of cigarettes for
which the distributor or stamping agent affixed stamps or
otherwise paid taxes during the immediately preceding three
(3) months.
(2) Any other information required by the department or the
attorney general.
The distributor or stamping agent shall maintain and make
available to the department, the commission, and the attorney
general for a period of five (5) years all invoices and
documentation of sales of all nonparticipating manufacturer
cigarettes and any other information that the distributor or
stamping agent relied on in reporting to the department, the
commission, and the attorney general.
(c) The attorney general may require a distributor or a tobacco
product manufacturer to submit additional information to
determine whether a tobacco product manufacturer is in
compliance with this chapter. The additional information may
include samples of the packaging or labeling of each of the tobacco
product manufacturer's brand families.
Sec. 18. The department and the commission shall disclose to the
attorney general any information received under this chapter and
requested by the attorney general for purposes of determining
compliance with and enforcing this chapter. The department, the
commission, and the attorney general:
(1) shall share with each other the information received under
this chapter; and
(2) may share the information received under this chapter with
other federal, state, or local agencies only for purposes of
enforcing this chapter or a corresponding law in another state.
Sec. 19. The attorney general may require a nonparticipating
manufacturer to provide from the financial institution that holds
the nonparticipating manufacturer's qualified escrow fund for
purposes of complying with this chapter proof of:
(1) the amount of money in the qualified escrow fund being
held on behalf of the state;
(2) the dates of any deposits into the qualified escrow fund; and
(3) the dates and amounts of any withdrawals from the
qualified escrow fund.
Sec. 20. The department or the attorney general may adopt rules
under
IC 4-22-2
to implement this chapter, including rules to:
(1) require a tobacco product manufacturer subject to section
13(c) of this chapter to make required escrow deposits in
installments during the calendar year in which the sales
covered by the deposits are made; or
(2) produce information sufficient to enable the attorney
general to determine the adequacy of the amount of an
installment deposit described in subdivision (1).
Sec. 21. (a) This section applies in addition to or instead of any
other civil or criminal penalty.
(b) The department may revoke or suspend the license of a
distributor, a stamping agent, or any other person that violates
section 15 of this chapter.
(c) Each:
(1) stamp affixed;
(2) sale of cigarettes; or
(3) offer or possession of cigarettes for sale;
in violation of section 15 of this chapter constitutes a separate
violation.
(d) The department or the commission may impose a civil penalty
that does not exceed the greater of:
(1) five hundred percent (500%) of the retail value of the
cigarettes sold; or
(2) five thousand dollars ($5,000);
for each violation of section 15 of this chapter.
Sec. 22. Whenever the department or the commission discovers
any cigarettes that have been sold, offered for sale, or possessed for
sale in Indiana in violation of section 15 of this chapter, the
department or the commission may seize and take possession of the
cigarettes. The seized cigarettes shall be forfeited to the state. The
department or the commission shall destroy the seized cigarettes.
Sec. 23. The attorney general may seek an injunction to:
(1) restrain a threatened or an actual violation of section 15 of
this chapter by a stamping agent; and
(2) compel the stamping agent to comply with sections 15,
17(b), and 17(c) of this chapter.
Sec. 24. (a) A person shall not:
(1) sell or distribute; or
(2) acquire, hold, own, possess, transport, import, or cause to
be imported;
cigarettes that the person knows or should know are intended for
distribution or sale in Indiana in violation of section 15 of this
chapter.
(b) A person who violates this section commits a Class C
misdemeanor.
Sec. 25. A person who violates section 15 of this chapter engages
in an unfair and deceptive business practice.
Sec. 26. A determination by the attorney general to not list in or
to remove from a directory under section 14 of this chapter a
brand family or a tobacco product manufacturer is subject to
review only by the Marion County circuit court.
Sec. 27. The department shall not issue a registration certificate
under
IC 6-7-1-16
(a) to a distributor unless the distributor certifies
in writing that the distributor will comply with this chapter.
Sec. 28. In an action brought by the state to enforce this chapter,
the state may recover:
(1) the costs of investigation;
(2) expert witness fees;
(3) the costs of the action; and
(4) attorney's fees.
Sec. 29. If a court determines that a person has violated this
chapter, the court shall order any profits, gain, gross receipts, or
other benefit from the violation to be disgorged and paid to the
treasurer of state for deposit in the Indiana tobacco master
settlement agreement fund under
IC 4-12-1-14.3.
Sec. 30. All:
(1) civil penalties imposed under; and
(2) judgments for violations of;
this chapter shall be deposited in the enforcement and
administration fund established under
IC 7.1-4-10-1.
SOURCE: IC 35-46-1-10; (03)CC178805.1.16. -->
SECTION 16.
IC 35-46-1-10
, AS AMENDED BY P.L.204-2001,
SECTION 65, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 10. (a) A person who knowingly:
(1) sells or distributes tobacco to a person less than eighteen (18)
years of age; or
(2) purchases tobacco for delivery to another person who is less
than eighteen (18) years of age;
commits a Class C infraction. For a sale to take place under this
section, the buyer must pay the seller for the tobacco product.
(b) It is not a defense that the person to whom the tobacco was sold
or distributed did not smoke, chew, or otherwise consume the tobacco.
(c) The following defenses are available to a person accused of
selling or distributing tobacco to a person who is less than eighteen
(18) years of age:
(1) The buyer or recipient produced a driver's license bearing the
purchaser's or recipient's photograph, showing that the purchaser
or recipient was of legal age to make the purchase.
(2) The buyer or recipient produced a photographic identification
card issued under
IC 9-24-16-1
, or a similar card issued under the
laws of another state or the federal government, showing that the
purchaser or recipient was of legal age to make the purchase.
(3) The appearance of the purchaser or recipient was such that an
ordinary prudent person would believe that the purchaser or
recipient was not less than the age that complies with regulations
promulgated by the federal Food and Drug Administration.
(d) It is a defense that the accused person sold or delivered the
tobacco to a person who acted in the ordinary course of employment or
a business concerning tobacco:
(1) agriculture;
(2) processing;
(3) transporting;
(4) wholesaling; or
(5) retailing.
(e) As used in this section, "distribute" means to give tobacco to
another person as a means of promoting, advertising, or marketing the
tobacco to the general public.
(f) Unless a person buys or receives tobacco under the direction of a
law enforcement officer as part of an enforcement action, a person who
sells or distributes tobacco is not liable for a violation of this section
unless the person less than eighteen (18) years of age who bought or
received the tobacco is issued a citation or summons under section 10.5
of this chapter.
(g) Notwithstanding
IC 34-28-5-4
(c), civil penalties collected under
this section must be deposited in the Richard D. Doyle youth tobacco
education and enforcement fund (IC 7.1-6-2-6).
SOURCE: IC 35-46-1-10.2; (03)CC178805.1.17. -->
SECTION 17.
IC 35-46-1-10.2
, AS AMENDED BY P.L.1-2001,
SECTION 38, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 10.2. (a) A retail establishment that sells or
distributes tobacco to a person less than eighteen (18) years of age
commits a Class C infraction. For a sale to take place under this
section, the buyer must pay the retail establishment for the tobacco
product. Notwithstanding
IC 34-28-5-4
(c), a civil judgment for an
infraction committed under this section must be imposed as follows:
(1) If the retail establishment at that specific business location has
not been issued a citation or summons for a violation of this
section in the previous ninety (90) days, a civil penalty of fifty
dollars ($50).
(2) If the retail establishment at that specific business location has
had one (1) citation or summons issued for a violation of this
section in the previous ninety (90) days, a civil penalty of one
hundred dollars ($100).
(3) If the retail establishment at that specific business location has
had two (2) citations or summonses issued for a violation of this
section in the previous ninety (90) days, a civil penalty of two
hundred fifty dollars ($250).
(4) If the retail establishment at that specific business location has
had three (3) or more citations or summonses issued for a violation
of this section in the previous ninety (90) days, a civil penalty of
five hundred dollars ($500).
A retail establishment may not be issued a citation or summons for a
violation of this section more than once every twenty-four (24) hours
for each specific business location.
(b) It is not a defense that the person to whom the tobacco was sold
or distributed did not smoke, chew, or otherwise consume the tobacco.
(c) The following defenses are available to a retail establishment
accused of selling or distributing tobacco to a person who is less than
eighteen (18) years of age:
(1) The buyer or recipient produced a driver's license bearing the
purchaser's or recipient's photograph showing that the purchaser or
recipient was of legal age to make the purchase.
(2) The buyer or recipient produced a photographic identification
card issued under
IC 9-24-16-1
or a similar card issued under the
laws of another state or the federal government showing that the
purchaser or recipient was of legal age to make the purchase.
(3) The appearance of the purchaser or recipient was such that an
ordinary prudent person would believe that the purchaser or
recipient was not less than the age that complies with regulations
promulgated by the federal Food and Drug Administration.
(d) It is a defense that the accused retail establishment sold or
delivered the tobacco to a person who acted in the ordinary course of
employment or a business concerning tobacco:
(1) agriculture;
(2) processing;
(3) transporting;
(4) wholesaling; or
(5) retailing.
(e) As used in this section, "distribute" means to give tobacco to
another person as a means of promoting, advertising, or marketing the
tobacco to the general public.
(f) Unless a person buys or receives tobacco under the direction of a
law enforcement officer as part of an enforcement action, a retail
establishment that sells or distributes tobacco is not liable for a
violation of this section unless the person less than eighteen (18) years
of age who bought or received the tobacco is issued a citation or
summons under section 10.5 of this chapter.
(g) Notwithstanding
IC 34-28-5-5
(c), civil penalties collected under
this section must be deposited in the Richard D. Doyle youth tobacco
education and enforcement fund (IC 7.1-6-2-6).
SOURCE: IC 35-46-1-11.3; (03)CC178805.1.18. -->
SECTION 18.
IC 35-46-1-11.3
, AS AMENDED BY P.L.204-2001,
SECTION 67, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 11.3. (a) This section does not apply to
advertisements that are less than fourteen (14) square feet and posted:
(1) at street level in the window or on the exterior of a business
property or establishment where tobacco products are
manufactured, distributed, or sold; or
(2) on vehicles.
(b) This section does not apply to advertisements that are placed on
a fixed, permanent marquee sign that is located on the retailer's
property where tobacco products are sold.
(c) A person may not advertise or cause to be advertised tobacco
products on a billboard or an outdoor advertisement where the tobacco
advertising occupies an area that exceeds fourteen (14) square feet. The
alcohol and tobacco commission may adopt rules under
IC 4-22-2
to
determine how to measure the tobacco product advertising on a sign
that contains both tobacco product advertising and advertising that is
not tobacco related. The rules may not allow the frame of the sign or
other structural parts that only serve to support the sign to be included
in the tobacco advertising measurement.
(d) A person who violates this section commits a Class C infraction.
An advertisement that is in violation of this section must be removed
not more than ten (10) days after a citation or summons has been
issued. Notwithstanding
IC 34-28-5-4
(c), if an advertisement that is in
violation of this section is not removed not more than ten (10) days
after a citation or summons has been issued, a civil judgment for an
infraction committed under this section must include a civil penalty of
one hundred dollars ($100) for each day that the advertisement was in
violation of this section.
(e) Notwithstanding
IC 34-28-5-5
(c), civil penalties collected under
this section must be deposited in the Richard D. Doyle youth tobacco
education and enforcement fund (IC 7.1-6-2-6).
SOURCE: IC 35-46-1-11.5; (03)CC178805.1.19. -->
SECTION 19.
IC 35-46-1-11.5
, AS AMENDED BY P.L.1-2001,
SECTION 40, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 11.5. (a) Except for a coin machine that is placed
in or directly adjacent to an entranceway or an exit, or placed in a
hallway, a restroom, or another common area that is accessible to
persons who are less than eighteen (18) years of age, this section does
not apply to a coin machine that is located in the following:
(1) That part of a licensed premises (as defined in
IC 7.1-1-3-20
)
where entry is limited to persons who are at least eighteen (18)
years of age.
(2) Private industrial or office locations that are customarily
accessible only to persons who are at least eighteen (18) years of
age.
(3) Private clubs if the membership is limited to persons who are
at least eighteen (18) years of age.
(4) Riverboats where entry is limited to persons who are at least
twenty-one (21) years of age and on which lawful gambling is
authorized.
(b) As used in this section, "coin machine" has the meaning set forth
in
IC 35-43-5-1.
(c) Except as provided in subsection (a), an owner of a retail
establishment may not:
(1) distribute or sell tobacco by use of a coin machine; or
(2) install or maintain a coin machine that is intended to be used
for the sale or distribution of tobacco.
(d) An owner of a retail establishment who violates this section
commits a Class C infraction. A citation or summons issued under this
section must provide notice that the coin machine must be moved
within two (2) business days. Notwithstanding
IC 34-28-5-4
(c), a civil
judgment for an infraction committed under this section must be
imposed as follows:
(1) If the owner of the retail establishment has not been issued a
citation or summons for a violation of this section in the previous
ninety (90) days, a civil penalty of fifty dollars ($50).
(2) If the owner of the retail establishment has had one (1) citation
or summons issued for a violation of this section in the previous
ninety (90) days, a civil penalty of two hundred fifty dollars
($250).
(3) If the owner of the retail establishment has had two (2) citations
or summonses issued for a violation of this section in the previous
ninety (90) days for the same machine, the coin machine shall be
removed or impounded by a law enforcement officer having
jurisdiction where the violation occurs.
An owner of a retail establishment may not be issued a citation or
summons for a violation of this section more than once every two (2)
business days for each business location.
(e) Notwithstanding
IC 34-28-5-5
(c), civil penalties collected under
this section must be deposited in the Richard D. Doyle youth tobacco
education and enforcement fund established under
IC 7.1-6-2-6.
SOURCE: IC 35-46-1-11.7; (03)CC178805.1.20. -->
SECTION 20.
IC 35-46-1-11.7
, AS AMENDED BY P.L.1-2001,
SECTION 41, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 11.7. (a) A retail establishment that has as its
primary purpose the sale of tobacco products may not allow an
individual who is less than eighteen (18) years of age to enter the retail
establishment.
(b) An individual who is less than eighteen (18) years of age may not
enter a retail establishment described in subsection (a).
(c) A retail establishment described in subsection (a) must
conspicuously post on all entrances to the retail establishment a sign in
boldface type that states "NOTICE: It is unlawful for a person less than
18 years old to enter this store.".
(d) A person who violates this section commits a Class C infraction.
Notwithstanding
IC 34-28-5-4
(c), a civil judgment for an infraction
committed under this section must be imposed as follows:
(1) If the person has not been cited for a violation of this section in
the previous ninety (90) days, a civil penalty of fifty dollars ($50).
(2) If the person has had one (1) violation in the previous ninety
(90) days, a civil penalty of one hundred dollars ($100).
(3) If the person has had two (2) violations in the previous ninety
(90) days, a civil penalty of two hundred fifty dollars ($250).
(4) If the person has had three (3) or more violations in the
previous ninety (90) days, a civil penalty of five hundred dollars
($500).
A person may not be cited more than once every twenty-four (24)
hours.
(e) Notwithstanding
IC 34-28-5-5
(c), civil penalties collected under
this section must be deposited in the Richard D. Doyle youth tobacco
education and enforcement fund established under
IC 7.1-6-2-6.
SOURCE: ; (03)CC178805.1.21. -->
SECTION 21. [EFFECTIVE JULY 1, 2003]
(a) Notwithstanding
IC 24-3-5.4-13
(a), as added by this act, a tobacco manufacturer
shall file a certification under
IC 24-3-5.4-13
, as added by this act,
not later than August 15, 2003.
(b) Notwithstanding
IC 24-3-5.4-14
(a), as added by this act, the
attorney general shall publish a directory under
IC 24-3-5.4-14
, as
added by this act, not later than October 1, 2003.
(c) This SECTION expires December 31, 2003.
(Reference is to EHB 1788 as reprinted April 1, 2003.)
Conference Committee Report
on
Engrossed House
Bill 1788
Text Box
S
igned by:
____________________________ ____________________________
Representative Hasler Senator Weatherwax
Chairperson
____________________________ ____________________________
Representative Murphy Senator Lewis
House Conferees Senate Conferees