SOURCE: IC 24-3-5; (03)AM179104.1. -->
SECTION 1. IC 24-3-5 IS ADDED TO THE INDIANA CODE AS
A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2003]:
Chapter 5. Delivery Sales of Tobacco Products
Sec. 1. As used in this chapter, "delivery sale" means a
transaction for the purchase of tobacco products in which an offer
to purchase tobacco products is made electronically using a
computer network (as defined in IC 35-43-2-3) or by mail and
acceptance of the offer results in delivery of the tobacco products
to a named individual at a designated address.
Sec. 2. As used in this chapter, "merchant" means a person or
an entity that engages in the selling of tobacco products by delivery
sale.
Sec. 3. As used in this chapter, "tobacco product" has the
meaning set forth in IC 7.1-6-1-3.
Sec. 4. A merchant may not mail or ship tobacco products as
part of a delivery sale unless, before mailing or shipping the
tobacco products, the merchant:
(1) obtains from the prospective customer a written statement
signed by the prospective customer under penalty of perjury:
(A) providing the prospective customer's address and date
of birth;
(B) advising the prospective customer that:
(i) signing another person's name to the statement
required under this subdivision may subject the person
to a civil monetary penalty of not more than one
thousand dollars ($1,000); and
(ii) purchasing tobacco products by a person less than
eighteen (18) years of age is a Class C infraction under
IC 35-46-1-10.5;
(C) confirming that the tobacco product order was placed
by the prospective customer;
(D) providing a warning under 15 U.S.C. 1333(a)(1); and
(E) stating the sale of tobacco products by delivery sale is
a taxable event for purposes of IC 6-7-1 and IC 6-7-2;
(2) makes a good faith effort to verify the information in the
written statement obtained under subdivision (1) by using a
federal or commercially available data base; and
(3) receives payment for the delivery sale by a credit or debit
card issued in the name of the prospective purchaser.
Sec. 5. (a) A merchant who mails or ships tobacco products as
part of a delivery sale shall:
(1) use a mailing or shipping service that requires the
customer or a person at least eighteen (18) years of age who
is designated by the customer to:
(A) sign to accept delivery of the tobacco products; and
(B) present a valid operator's license issued under
IC 9-24-3 or identification card issued under IC 9-24-16 if
the customer or the customer's designee, in the opinion of
the delivery agent or employee of the mailing or shipping
service, appears to be less than twenty-seven (27) years of
age;
(2) provide to the mailing or shipping service used under
subdivision (1) proof of compliance with section 6(a) of this
chapter; and
(3) include the following statement in bold type or capital
letters on an invoice or shipping document:
INDIANA LAW PROHIBITS THE MAILING OR
SHIPPING OF TOBACCO PRODUCTS TO A PERSON
LESS THAN EIGHTEEN (18) YEARS OF AGE AND
REQUIRES PAYMENT OF ALL APPLICABLE TAXES.
(b) The alcohol and tobacco commission may impose a civil
penalty of not more than one thousand dollars ($1,000) if a mailing
or shipping service:
(1) delivers tobacco products as part of a delivery sale without
first receiving proof from the merchant of compliance with
section 6(a) of this chapter; or
(2) fails to obtain a signature and proof of identification of the
customer or the customer's designee under subsection (a)(1).
The alcohol and tobacco commission shall deposit amounts
collected under this subsection into the youth tobacco education
and enforcement fund established by IC 7.1-6-2-6.
(c) The following apply to a merchant that mails or ships
tobacco products as part of a delivery sale without using a third
party service as required by subsection (a)(1):
(1) The merchant shall require the customer or a person at
least eighteen (18) years of age who is designated by the
customer to:
(A) sign to accept delivery of the tobacco products; and
(B) present a valid operator's license issued under
IC 9-24-3 or identification card issued under IC 9-24-16 if
the customer or the customer's designee, in the opinion of
the merchant or the merchant's employee making the
delivery, appears to be less than twenty-seven (27) years of
age.
(2) The alcohol and tobacco commission may impose a civil
penalty of not more than one thousand dollars ($1,000) if the
merchant:
(A) delivers the tobacco products without first complying
with section 6(a) of this chapter; or
(B) fails to obtain a signature and proof of identification of
the customer or the customer's designee under subdivision
(1).
The alcohol and tobacco commission shall deposit amounts
collected under this subdivision into the youth tobacco
education and enforcement fund established by IC 7.1-6-2-6.
Sec. 6. (a) A merchant shall, before mailing or shipping tobacco
products as part of a delivery sale, provide the department of state
revenue with a written statement containing the merchant's name,
address, principal place of business, and each place of business in
Indiana.
(b) A merchant who mails or ships tobacco products as part of
a delivery sale shall, not later than the tenth day of the calendar
month immediately following the month in which the delivery sale
occurred, file with the department of state revenue a copy of the
invoice for each delivery sale to a customer in Indiana. The invoice
must include the following information:
(1) The name and address of the customer to whom the
tobacco products were delivered.
(2) The brand name of the tobacco products that were
delivered to the customer.
(3) The quantity of tobacco products that were delivered to
the customer.
(c) A merchant who complies with 15 U.S.C. 376 is considered
to satisfy the requirements of this section.
Sec. 7. (a) A merchant who delivers tobacco products to a
customer as part of a delivery sale shall:
(1) collect and pay all applicable taxes under IC 6-7-1; or
(2) place a legible and conspicuous notice on the outside of the
container in which the tobacco products are shipped. The
notice shall be placed on the same side of the container as the
address to which the container is shipped and must state the
following:
"If these tobacco products have been shipped to you from
a merchant located outside the state in which you reside,
the merchant has under federal law reported information
about the sale of these tobacco products, including your
name and address, to your state tax collection agency. You
are legally responsible for all applicable unpaid state taxes
on these tobacco products.".
(b) For a violation of this section the alcohol and tobacco
commission may impose, in addition to any other remedies, civil
penalties as follows:
(1) If the person has one (1) judgment for a violation of this
section committed during a five (5) year period, a civil penalty
of at least one thousand dollars ($1,000) and not more than
two thousand dollars ($2,000).
(2) If the person has two (2) unrelated judgments for
violations of this section committed during a five (5) year
period, a civil penalty of at least two thousand five hundred
dollars ($2,500) and not more than three thousand five
hundred dollars ($3,500).
(3) If the person has three (3) unrelated judgments for
violations of this section committed during a five (5) year
period, a civil penalty of at least four thousand dollars
($4,000) and not more than five thousand dollars ($5,000).
(4) If the person has four (4) unrelated judgments for
violations of this section committed during a five (5) year
period, a civil penalty of at least five thousand five hundred
dollars ($5,500) and not more than six thousand five hundred
dollars ($6,500).
(5) If the person has at least five (5) unrelated judgments for
violations of this section committed during a five (5) year
period, a civil penalty of ten thousand dollars ($10,000).
Sec. 8. The alcohol and tobacco commission may impose a civil
penalty of not more one thousand dollars ($1,000) on a:
(1) customer who signs another person's name to a statement
required under section 4(1) of this chapter; or
(2) merchant who sells tobacco products by delivery sale to a
person less than eighteen (18) years of age.
The alcohol and tobacco commission shall deposit amounts
collected under this section into the youth tobacco education and
enforcement fund established by IC 7.1-6-2-6.
SOURCE: IC 34-24-1-1; (03)AM179104.2. -->
SECTION 2. IC 34-24-1-1, AS AMENDED BY P.L.123-2002,
SECTION 30, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 1. (a) The following may be seized:
(1) All vehicles (as defined by IC 35-41-1), if they are used or are
intended for use by the person or persons in possession of them to
transport or in any manner to facilitate the transportation of the
following:
(A) A controlled substance for the purpose of committing,
attempting to commit, or conspiring to commit any of the
following:
(i) Dealing in or manufacturing cocaine, a narcotic drug, or
methamphetamine (IC 35-48-4-1).
(ii) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(iii) Dealing in a schedule IV controlled substance
(IC 35-48-4-3).
(iv) Dealing in a schedule V controlled substance
(IC 35-48-4-4).
(v) Dealing in a counterfeit substance (IC 35-48-4-5).
(vi) Possession of cocaine, a narcotic drug, or
methamphetamine (IC 35-48-4-6).
(vii) Dealing in paraphernalia (IC 35-48-4-8.5).
(viii) Dealing in marijuana, hash oil, or hashish
(IC 35-48-4-10).
(B) Any stolen (IC 35-43-4-2) or converted property
(IC 35-43-4-3) if the retail or repurchase value of that property
is one hundred dollars ($100) or more.
(C) Any hazardous waste in violation of IC 13-30-6-6.
(D) A bomb (as defined in IC 35-41-1-4.3) or weapon of mass
destruction (as defined in IC 35-41-1-29.4) used to commit,
used in an attempt to commit, or used in a conspiracy to
commit an offense under IC 35-47 as part of or in furtherance
of an act of terrorism (as defined by IC 35-41-1-26.5).
(2) All money, negotiable instruments, securities, weapons,
communications devices, or any property used to commit, used in
an attempt to commit, or used in a conspiracy to commit an
offense under IC 35-47 as part of or in furtherance of an act of
terrorism or commonly used as consideration for a violation of
IC 35-48-4 (other than items subject to forfeiture under
IC 16-42-20-5 or IC 16-6-8.5-5.1 before its repeal):
(A) furnished or intended to be furnished by any person in
exchange for an act that is in violation of a criminal statute;
(B) used to facilitate any violation of a criminal statute; or
(C) traceable as proceeds of the violation of a criminal statute.
(3) Any portion of real or personal property purchased with
money that is traceable as a proceed of a violation of a criminal
statute.
(4) A vehicle that is used by a person to:
(A) commit, attempt to commit, or conspire to commit;
(B) facilitate the commission of; or
(C) escape from the commission of;
murder (IC 35-42-1-1), kidnapping (IC 35-42-3-2), criminal
confinement (IC 35-42-3-3), rape (IC 35-42-4-1), child molesting
(IC 35-42-4-3), or child exploitation (IC 35-42-4-4), or an offense
under IC 35-47 as part of or in furtherance of an act of terrorism.
(5) Real property owned by a person who uses it to commit any of
the following as a Class A felony, a Class B felony, or a Class C
felony:
(A) Dealing in or manufacturing cocaine, a narcotic drug, or
methamphetamine (IC 35-48-4-1).
(B) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(C) Dealing in a schedule IV controlled substance
(IC 35-48-4-3).
(D) Dealing in marijuana, hash oil, or hashish (IC 35-48-4-10).
(6) Equipment and recordings used by a person to commit fraud
under IC 35-43-5-4(11).
(7) Recordings sold, rented, transported, or possessed by a person
in violation of IC 24-4-10.
(8) Property (as defined by IC 35-41-1-23) or an enterprise (as
defined by IC 35-45-6-1) that is the object of a corrupt business
influence violation (IC 35-45-6-2).
(9) Unlawful telecommunications devices (as defined in
IC 35-45-13-6) and plans, instructions, or publications used to
commit an offense under IC 35-45-13.
(10) Any equipment used or intended for use in preparing,
photographing, recording, videotaping, digitizing, printing,
copying, or disseminating matter in violation of IC 35-42-4-4.
(11) Destructive devices used, possessed, transported, or sold in
violation of IC 35-47.5.
(12) Tobacco and tobacco products that are sold in violation
of IC 24-3-5, tobacco and tobacco products that a person
attempts to sell in violation of IC 24-3-5, and other personal
property owned and used by a person to facilitate a violation
of IC 24-3-5.
(b) A vehicle used by any person as a common or contract carrier in
the transaction of business as a common or contract carrier is not
subject to seizure under this section, unless it can be proven by a
preponderance of the evidence that the owner of the vehicle knowingly
permitted the vehicle to be used to engage in conduct that subjects it to
seizure under subsection (a).
(c) Equipment under subsection (a)(10) may not be seized unless it
can be proven by a preponderance of the evidence that the owner of the
equipment knowingly permitted the equipment to be used to engage in
conduct that subjects it to seizure under subsection (a)(10).
(d) Money, negotiable instruments, securities, weapons,
communications devices, or any property commonly used as
consideration for a violation of IC 35-48-4 found near or on a person
who is committing, attempting to commit, or conspiring to commit any
of the following offenses shall be admitted into evidence in an action
under this chapter as prima facie evidence that the money, negotiable
instrument, security, or other thing of value is property that has been
used or was to have been used to facilitate the violation of a criminal
statute or is the proceeds of the violation of a criminal statute:
(1) IC 35-48-4-1 (dealing in or manufacturing cocaine, a narcotic
drug, or methamphetamine).
(2) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled
substance).
(3) IC 35-48-4-3 (dealing in a schedule IV controlled substance).
(4) IC 35-48-4-4 (dealing in a schedule V controlled substance)
as a Class B felony.
(5) IC 35-48-4-6 (possession of cocaine, a narcotic drug, or
methamphetamine) as a Class A felony, Class B felony, or Class
C felony.
(6) IC 35-48-4-10 (dealing in marijuana, hash oil, or hashish) as
a Class C felony.
(Reference is to HB 1791 as printed February 28, 2003.)
and when so amended that said bill do pass .
Committee Vote: Yeas 8, Nays 0.
____________________________________
Senator Server, Chairperson
AM 179104/DI 110 2003