To repeal sections 407.925, 407.927, 407.929, 407.931 and 407.932, RSMo 1994, relating to sales of tobacco products, and to enact in lieu thereof nine new sections relating to the same subject, with penalty provisions.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

Section A. Sections 407.925, 407.927, 407.929, 407.931 and 407.932, RSMo 1994, are repealed and nine new sections enacted in lieu thereof, to be known as sections 311.900, 311.903, 311.905, 311.907, 311.909, 311.912, 311.918, 311.920 and 311.925, to read as follows:

311.900. 1. As used in sections 311.900 to 311.925, the following terms mean:

(1) "Division", the division of alcohol and tobacco control of the department of public safety;

(2) "Distribute", to sell, furnish, give or provide tobacco products, including tobacco product samples, to the ultimate consumer;

(3) "Person", an individual, partnership, copartnership, firm, company, public or private corporation, association, joint stock company, trust, estate, political subdivision or any agency, board, department or bureau of the state or federal government, or any other legal entity which is recognized by law as the subject of rights and duties;

(4) "Proof of age", a driver's license or other documentary or written evidence that the individual is eighteen years of age or older;

(5) "Public place", any public street, sidewalk or park, or any area open to the general public in any publicly owned and operated building;

(6) "Sample", a tobacco product distributed to members of the general public at no cost for purposes of promoting the product;

(7) "Sampling", the distribution of samples to members of the general public in a public place;

(8) "Tobacco products", any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco or dipping tobacco;

(9) "Vending machine", any mechanical, electric or electronic self- service device which, upon insertion of money, tokens or any other form of payment, automatically dispenses tobacco products.

2. There is established in the department of public safety a "Division of Alcohol and Tobacco Control". With respect to the control of alcoholic beverages, the director of the division of alcohol and tobacco control shall assume the powers, duties and functions of the supervisor of liquor control, as provided in section 650.005, RSMo, sections 311.610 to 311.750, and section 312.010, RSMo, in addition to those provided in sections 311.900 to 311.925. With respect to the control of tobacco products, the director of the division of alcohol and tobacco control shall have only the powers, duties and functions expressly enumerated in sections 311.900 to 311.925. Any statutory reference to the supervisor of liquor control shall mean the director of the division of alcohol and tobacco control.

3. The director of the division of alcohol and tobacco control shall have the following powers and duties:

(1) To issue licenses for the sale of tobacco products;

(2) To provide without charge signs that meet the requirements of section 311.905;

(3) To investigate violations of sections 311.900 to 311.925;

(4) To conduct annual, random and unannounced inspections to ensure compliance with the provisions of sections 311.900 to 311.925;

(5) To enforce fines pursuant to sections 311.900 to 311.925;

(6) To bring license suspension, revocation and nonrenewal actions pursuant to section 311.920; and

(7) To prepare for submission annually to the Secretary of the United States Department of Health and Human Services the report required by Section 1926 of the federal Public Health Service Act, 42 U.S.C. 300X-26.

4. The director shall enforce sections 311.900 to 311.925 in a manner that can reasonably be expected to reduce the extent to which tobacco products are sold or distributed to persons under the age of eighteen years, and shall annually conduct random, unannounced inspections at locations where tobacco products are sold or distributed to ensure compliance with sections 311.900 to 311.925. License fees collected pursuant to section 311.903 shall be used to offset the costs of its enforcement.

5. Persons under the age of eighteen years may be enlisted by the director or agents of the director to test compliance with sections 311.900 to 311.925; provided, however, that such persons may be used to test compliance with sections 311.900 to 311.925 only if the testing is conducted under the direct supervision of the director or agents of the director, and written parental consent has been provided. Any other use of persons under the age of eighteen years to test compliance with sections 311.900 to 311.925 or any other prohibitions of like or similar import shall be unlawful and the person or persons responsible for such use shall be subject to the fines prescribed in section 311.907.

311.903. 1. No person in Missouri shall engage in the retail sale of tobacco products on or after July 1, 1997, unless the person is authorized to do so by a license issued pursuant to this section, or is an employee or agent of a person who has been issued a license pursuant to this section. For purposes of this section, the person deemed to be engaged in the retail sale of tobacco products through a vending machine shall be the owner of the business establishment in which the vending machine is located.

2. The annual license fee for the retail sale of tobacco products is as follows:

(1) Twenty-five dollars for each retail establishment where tobacco products are sold. A separate license shall be required for each such retail establishment;

(2) Twenty-five dollars for each vending machine. A separate license shall be required for each vending machine through which tobacco products are sold.

3. A license for the sale of tobacco products shall be valid for a term to expire with the thirtieth day of June next succeeding the date of such license. Application for renewal of licenses for the sale of tobacco products shall be filed on or before the first day of May of each calendar year.

4. Every application for a license pursuant to this section shall be made upon a form provided by the division and shall set forth the name under which the applicant transacts or intends to transact business, the location of the place of business or vending machine for which the license is to be issued, and any other identifying information that the division may require.

5. Every license for sale of tobacco products issued by the division shall be renewed upon application except as otherwise provided in this section. Upon notification of a change of address if required by the division, a license shall be reissued for the new address without the filing of a new application.

6. On or before May 1, 1997, the division shall notify every person in Missouri who engages in the sale of tobacco products at retail, including sale through vending machines, of the license requirements imposed by this section.

7. The division shall issue a license or renewal of a license within thirty days of receiving a properly completed application and the applicable license fee. A license or renewal thereof shall not be withheld or denied except pursuant to section 311.920; provided, however, that no license shall be issued for the sale of tobacco products through a vending machine unless the applicant certifies compliance with the restrictions set forth in section 311.909 with respect to the machine for which the license is issued. No terms or conditions shall be imposed for the issuance, maintenance, or renewal of a license except as specified in this section.

311.905. 1. Signs to be provided pursuant to the provisions of section 311.909 shall contain in red lettering at least one-half inch high on a white background "STATE LAW STRICTLY PROHIBITS THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF 18 YEARS. PROOF OF AGE MAY BE REQUIRED.".

2. Every person who sells tobacco products over the counter at retail shall display prominently a sign that meets the requirements of this section. No notice regarding tobacco products, other than the notice required by this section, shall be required to be posted or maintained in any establishment in Missouri that sells tobacco products at retail.

3. Any violation of this section shall subject the holder of the license to a fine of not more than one hundred dollars.

311.907. 1. No person shall sell or distribute a tobacco product to any individual under eighteen years of age.

2. No person shall sell cigarettes or smokeless tobacco products other than in an unopened package originating with the manufacturer that bears the health warning required by federal law.

3. A person selling or distributing tobacco products shall require proof of age from a prospective purchaser or recipient if such person has reason to believe that the prospective purchaser or recipient is under the age of eighteen years.

4. Reasonable reliance on proof of age or on the appearance of the purchaser or recipient shall be a defense to any action for a violation of this section.

5. No person shall be liable pursuant to subsections 1 to 8 of this section for more than one violation on any one day.

6. If the sale is made by an employee of the owner of a retail establishment at which tobacco products are sold, the employee shall be guilty of the violation and be subject to the fine. If the sale is made through a vending machine, the proprietor of the establishment where the machine is located shall be guilty of the violation and be subject to the fine; provided, however, that if the proprietor has made an employee responsible for supervising the machine, such employee shall be guilty of the violation and be subject to the fine.

7. Every person engaged in the business of selling tobacco products at retail shall notify each individual employed by that person as a retail sales clerk that state law prohibits the sale or distribution of tobacco products to any person under eighteen years of age and the purchase or receipt of tobacco products by any person under eighteen years of age and out-of-package sales of cigarettes and smokeless tobacco products, and state law requires that proof of age be demanded from a prospective purchaser or recipient if the person engaged in sale or distribution of tobacco products has reason to believe that the prospective purchaser or recipient is under eighteen years of age. This notice shall be provided before the individual commences work as a retail sales clerk or within thirty days of the effective date of this section. The individual shall signify that he or she has received the notice required by this section by signing a form stating as follows:

"I understand that state law prohibits the sale or distribution of tobacco products to persons under eighteen years of age and out-of-package sales of cigarettes and smokeless tobacco products, and requires that proof of age be demanded from a prospective purchaser or recipient if I have reason to believe that the prospective purchaser or recipient is under eighteen years of age. I promise, as a condition of my employment, to observe this law."

Each form signed by such individual shall indicate the date of signature. The employer shall retain the form signed by each individual employed as a retail sales clerk until one hundred twenty days after the individual has left the employer's employ.

Any employer failing to comply with the requirements of this subsection with respect to any employee shall be subject to a fine of one hundred dollars for the first offense within a two-year period and two hundred dollars for each succeeding violation of this provision within a two-year period, or by imprisonment for not more than thirty days.

8. For purposes of determining the liability of a person

controlling franchises or business operations in multiple locations for a second or subsequent violations of this section, each individual franchise or business location shall be deemed a separate entity.

9. It shall be unlawful for a person who has not attained the age of eighteen years to purchase or accept receipt or to attempt to purchase or accept receipt of a tobacco product, or to present or offer to any person any purported proof of age which is false, fraudulent, or not actually the person's own, for the purpose of purchasing or receiving any tobacco product. It shall not be unlawful for such a person to accept receipt of a tobacco product from a family member, from a personal acquaintance, or from an employer when required in the performance of such person's duties.

10. Violation of subsection 9 of this section shall be punishable by a fine of twenty-five dollars or ten hours of community service work for a first offense within a one-year period, and a fine of fifty dollars and twenty hours of community service work for a second or subsequent offense within a one-year period.

311.909. 1. No person shall sell tobacco products through a vending machine unless the vending machine is located in the following:

(1) Areas of factories, businesses, offices or other places that are not open to the public;

(2) Places that are open to the public but to which persons under the age of eighteen years are denied access;

(3) Places where alcoholic beverages are sold for consumption on the premises, but only if the vending machine meets the following requirements:

(a) It is under the continuous supervision of the owner or lessee of the premises or an employee thereof; and

(b) It is inaccessible to the public when the establishment is closed;

(4) Other places, but only if the machine meets the following requirements:

(a) It is under the continuous supervision of the owner or lessee of the premises or an employee thereof;

(b) It can be operated only by the activation of an electronic switch by the owner or lessee of the premises or an employee thereof prior to each purchase; and

(c) It is inaccessible to the public when the establishment is closed.

2. In any place where supervision of a vending machine, or activation of an electronic switch, is required by subsection 1 of this section, the person responsible for that supervision or the activation of the switch shall demand proof of age from a prospective purchaser if such person has reason to believe that the prospective purchaser is under the age of eighteen years. Reasonable reliance on proof of age or on the appearance of the recipient shall be a defense to any action for a violation of this section.

3. No person shall be liable pursuant to subsections 1 to 3 of this section for more than one violation on any one day.

4. It shall be unlawful for any person to distribute tobacco product samples in or on any public street, sidewalk or park that is within five hundred feet of any playground, school or other facility when the facility is being used primarily by persons under the age of eighteen years.

5. A person engaged in sampling shall demand proof of age from a prospective recipient if such person has reason to believe that the prospective recipient is under the age of eighteen years.

6. Any person who violates the provisions of subsection 4 or 5 of this section shall be subject to a fine of not more than one hundred dollars. If the tobacco product is distributed by an employee engaged in the business of sampling, the employee shall be guilty of the violation and be subject to the fine. Reasonable reliance on proof of age or on the appearance of the recipient shall be a defense to any action for a violation of subsection 4 or 5 of this section.

311.912. No person other than a person who holds a license issued pursuant to section 311.903, or an employee or agent of that person, may sell a tobacco product. This section shall not apply to a manufacturer of tobacco products or a wholesaler of tobacco products.

311.918. 1. Any licensed holder, employee or agent that violates any provision of section 311.907 or section 311.909 shall be subject to the following:

(1) A fine of one hundred dollars for the first violation within a two-year period;

(2) A fine of two hundred fifty dollars for the second violation within a two-year period;

(3) A fine of five hundred dollars for the third and any subsequent violation.

2. Any person who violates section 311.912 shall be subject to a fine of not more than one thousand dollars.

3. A court shall notify the director of the division of alcohol and tobacco control of any fine imposed for violations of sections 311.900 to 311.912.

311.920. 1. A license issued pursuant to section 311.903 for a particular place of business or vending machine shall be suspended or revoked, and not renewed, for a period of the following:

(1) Three days, if a fine has been imposed pursuant to subsection 1 of section 311.918 for the second violation involving the same place of business or vending machine within two years; or

(2) One to seven days, if a fine has been imposed pursuant to subsection 1 of section 311.918 for the third violation involving the same place of business or vending machine within two years; or

(3) Nine to twenty-one days, if a fine has been imposed pursuant to subsection 1 of section 311.918 for any additional violation involving the same place of business or vending machine within two years.

2. A violation committed by an employee or agent, and attributed to a license holder, shall be counted only once for purposes of subsection 1 of this section.

3. A person who holds a license issued pursuant to section 311.903 shall not be subject to a fine pursuant to subsection 1 of section 311.918 for a violation by an employee or agent, and an assessment of a fine for such violation by an employee or agent shall be disregarded for purposes of subsection 2 of section 311.918, if the license holder affirmatively demonstrates that the license holder has in place a system reasonably designed to prevent such violations.

311.925. The general assembly hereby occupies and preempts the entire field of legislation concerning the sale, distribution, display, sampling or promotion of tobacco products to the complete exclusion of any order, ordinance, rule or regulation enacted or adopted by any political subdivision of this state after the effective date of this section. No county, city, town, village, municipality or department, board or agency thereof, and no other political subdivision, department, board or agency of the state, shall enact or adopt any order, ordinance, rule or regulation concerning the sale, sampling, distribution, display or promotion of tobacco products after the effective date of this section. No order, ordinance, rule or regulation enacted or adopted prior to the effective date of this section concerning the sale, distribution, display, sampling or promotion of tobacco products shall be preempted or voided because of the enactment of this section.

[407.925. As used in sections 407.925 to 407.932, the following terms mean:

(1) "Center of youth activities", any playground, school or other facility, when such facility is being used primarily by persons under the age of eighteen for recreational, educational or other purposes;

(2) "Distribute", a conveyance to the public by sale, barter, gift or sample;

(3) "Minor", a person under the age of eighteen;

(4) "Municipality", the city, village or town within which tobacco products are sold or distributed or, in the case of tobacco products that are not sold or distributed within a city, village or town, the county in which they are sold or distributed;

(5) "Person", an individual, partnership, copartnership, firm, company, public or private corporation, association, joint stock company, trust, estate, political subdivision or any agency, board, department or bureau of the state or federal government, or any other legal entity which is recognized by law as the subject of rights and duties;

(6) "Proof of age", a driver's license or other generally accepted means of identification that contains a picture of the individual and appears on its face to be valid;

(7) "Rolling papers", paper designed, manufactured, marketed, or sold for use primarily as a wrapping or enclosure for tobacco, which enables a person to roll loose tobacco into a smokable cigarette;

(8) "Sample", a tobacco product distributed to members of the general public at no cost or at nominal cost for product promotional purposes;

(9) "Sampling", the distribution to members of the general public of tobacco product samples;

(10) "Tobacco products", any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, or dipping tobacco;

(11) "Vending machine", any mechanical electric or electronic, self-service device which, upon insertion of money, tokens or any other form of payment, dispenses tobacco products.]

[407.927. The owner of an establishment at which tobacco products or rolling papers are sold at retail or through vending machines shall cause to be prominently displayed in a conspicuous place at every display from which tobacco products are sold and on every vending machine where tobacco products are purchased a sign that shall:

(1) Contain in red lettering at least one-half inch high on a white background the following: "It is a violation of state law for cigarettes or other tobacco products to be sold to any person under the age of eighteen"; and

(2) Include a depiction of a pack of cigarettes at least two inches high defaced by a red diagonal diameter of a surrounding red circle, and the words "Under 18".]

[407.929. 1. A person selling tobacco products or rolling papers or distributing tobacco product samples shall require proof of age from a prospective purchaser or recipient if an ordinary person would conclude on the basis of appearance that such prospective purchaser or recipient may be under the age of eighteen.

2. Reasonable reliance on proof of age or on the appearance of the purchaser or recipient shall be a defense to any action for a violation of subsections 2 and 3 of section 407.931. No person shall be liable for more than one violation of subsections 2 and 3 of section 407.931 on any single day.]

[407.931. 1. It shall be unlawful for any person to engage in tobacco product distribution to persons under eighteen years of age.

2. No person shall sell any tobacco product or distribute any tobacco product or rolling papers to any minor. This

subsection shall not apply to the distribution by family members on property that is not open to the public.

3. Any person who violates subsection 1 or 2 of this section or section 407.927 shall be fined:

(1) For the first offense, twenty-five dollars;

(2) For the second offense, one hundred dollars;

(3) For a third and subsequent offense, two hundred fifty dollars.

4. If a sale is made by an employee of the owner of an establishment in violation of sections 407.925 to 407.932, the employee shall be guilty of an offense established in subsections 2 and 3 of this section. If a vending machine is in violation of section 407.927, the owner of the establishment shall be guilty of an offense established in subsections 2 and 3 of this section. If a sample is distributed by an employee of a company conducting the sampling, such employee shall be guilty of an offense established in subsections 2 and 3 of this section.]

[407.932. Nothing in sections 407.925 to 407.932 shall prohibit local political subdivisions from enacting more stringent ordinances or rules.]