CHAPTER 318

FORMERLY

HOUSE BILL NO. 440

AS AMENDED BY HOUSE AMENDMENT NO. I

AN ACT TO AMEND TITLE 10 AND TITLE 11 OF THE DELAWARE CODE RELATING TO THE SALE AND DISTRIBUTION OF TOBACCO PRODUCTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Section 1106, Subchapter V, Chapter 5, Title I 1, Delaware Code, by striking paragraph ( I ) in its entirety and by renumbering the remaining paragraphs (2), (3), and (4) as paragraphs (1), (2), and (3) respectively.

Section 2. Amend Section 922, Subchapter II, Chapter 9, Title 10, Delaware Code by striking subsection (a)(13) and by renumbering the remaining subsections (a)(14) through (a)(2 I) as (a)(13) through (a)(20) respectively.

Section 3. Amend Subchapter V, Chapter 5, Title I I, Delaware Code, by designating Sections 1100 through 1112 as "Subpart A.".

Section 4. Amend Subchapter V, Chapter 5, Title 11, Delaware Code, by adding thereto a new subpart B to read as follows:

"Subpart B. Sale and Distribution of Tobacco Products. § 1115. Definitions.

(1) 'Coupon' means any card, paper, note, form, statement, ticket, or other issue distributed for commercial or promotional purposes to be later surrendered by the bearer so as to receive any tobacco product without charge or at a discounted price.

(2) 'Distribute' means give, deliver, or sell; offer to give, deliver, or sell;-or cause or hire any person to give, deliver, or sell, or offer to give, deliver, or sell.

(3) 'Health warning' means any tobacco product label mandated by federal law and intended to alert all users of such tobacco product to the health risks associated with tobacco use, including but not limited to warning labels imposed under the Federal Cigarette Labeling and Advertising Act of 1965 and-the Comprehensive Smokeless Tobacco Education Act of 1986.

(4) 'Proof of age' means a driver's license or other identification with a photograph of the individual affixed thereon that indicates that the individual is 18 years old or older.

(5) 'Public place' means any area to which the general public is invited or permitted, including but not limited to parks, streets, sidewalks or pedestrian concourses, sports arenas, pavilions, gymnasiums, public malls, and property owned, occupied, or operated by the State of Delaware or by any agency thereof.

(6) 'Sample' means a tobacco product distributed to members of the general public at no cost for the purpose of promoting the product.

- (7) 'Sampling' means the distribution of samples or coupons for redemption of

tobacco products to members of the general public in a public place.

(8) 'Tax stamp' means any required State or federal stamp imposed for the purpose of collecting excise tax revenue.

(9) 'Tobacco product' means any product that contains tobacco, including but not limited to cigarettes, cigars, pipe tobacco, snuff, or smokeless tobacco and is intended for human consumption or use.

(9) 'Tobacco store' means any retail establishment where 60% of the retail establishment's gross revenue comes from the retail sale of tobacco products and smoking paraphernalia.

(10) 'Vending machine' means any mechanical, electronic, or other similar device which automatically dispenses tobacco products, usually upon the insertion of a coin, token, or slug.

§ 1116. Sale or distribution of tobacco products to minors.

(a) It shall be unlawful for any person to sell or distribute any tobacco product to another person who has not attained the age of 18 years or to purchase any tobacco product on behalf of another such person, except that this section shall not apply to the parent or guardian of another such person.

(b) A person engaged in the sale or distribution of tobacco products shall have the right to demand proof of age from a prospective purchaser or recipient of such products.

*1117. Notice.

A person engaged in the sale or distribution of tobacco products shall post conspicuously at each point of purchase a notice stating that selling tobacco products to anyone under 18 years of age is illegal, that the purchase of tobacco products by anyone under 18 years of age is illegal, and that a violator is subject to fines. The notice shall also state that all persons selling tobacco products have the right, under law, to check the proof of age of any purchaser of tobacco products. The notice shall include a toll-free telephone number to the Department of Public Safety for persons to report unlawful sales of tobacco products. The owner of an establishment who fails to post a notice in compliance with this section shall be subject to a fine of $100.

§ 1118. Distribution of samples to minors.

(a) It shall be unlawful for any person to distribute tobacco product samples or coupons for subsequent receipt of free or discounted tobacco products to another person who has not attained the age of 18 years.

(b) A person engaged in sampling shall have the right to demand proof of age from a prospective recipient of samples or of coupons for the redemption of tobacco products.

§ 1119. Distribution of cigarettes through vending machines.

(a) It shall be unlawful for any person to distribute or permit the distribution of tobacco products through the operation of a vending machine in a public place, except as provided in subsection (b) of this section.

(b) Pursuant to subsection (a) of this section, a person may distribute or permit the distribution of tobacco products through the operation of a vending machine in a taproom, tavern, tobacco shop, or in premises in which a person who has not attained the age of 18 years is prohibited by law from entering. A tobacco vending machine must be operated a minimum of 25 feet from any entrance to the premises and must be directly visible to the owner or supervisor of the premises.

§ 1120. Distribution of tobacco products in sealed packages.

(a) No person shall distribute a tobacco product for commercial purposes unless the product is in a sealed package provided by the manufacturer with the required health warning and tax stamp.

§1121. Penalties.

Notwithstanding any other provision of Delaware law, a person who violates § 1116, §1118, §1119, or §I120 of this subpart shall be guilty of a violation and shall be fined $250 for the first offense, $500 for the second offense, and $1,000 for the third and all subsequent offenses. Additionally, and notwithstanding any other provision of Delaware law, in imposing a penalty for a second, third, or other subsequent offense under this subpart, the court may order the Department of Finance to suspend the defendant's license for sale of tobacco products, issued pursuant to 30 Del. C, § S307, for a period not to exceed six months. Upon the suspension of such license, the court shall advise the Department of Finance of the suspension, in writing. The holder of the license shall surrender the license to the Department of Finance, and no refund of fees shall be paid. For purposes of this subpart, a subsequent offense is one that occurs within 12 months of a prior like offense.

§1122. Affirmative defense.

In any prosecution for an offense under this subpart, it shall be an affirmative defense that the purchaser or recipient of tobacco products who had not reached the age of 18 years presented to the accused proof of age which set forth information that would lead a reasonable person to believe that such individual was 18 years of age or older.

§I123. Liability of employer.

If a sale or distribution of any tobacco product or coupon is made in violation of §1116, §1118, §1119, or §I120 of this subpart, the owner or proprietor of the establishment where the violation occurred shall be guilty of the violation and shall be subject to the fine. For purposes of determining the liability of a person who owns or controls franchises or business operations in multiple locations, for a second or subsequent violation of this subpart, each individual franchise or business location shall be deemed a separate establishment.

§ 1124. Purchase or receipt of tobacco products by minors.

(a) It shall be unlawful for any person who has not attained the age of 18 years to purchase a tobacco product, to accept receipt of a sample, to exchange a coupon for a tobacco product, or to present or offer to another person a purported proof of age which is false, fiaudulent, or not actually his or her own proof of age, for the purpose of purchasing or receiving any tobacco product or redeeming a coupon for a tobacco product.

(b) A person who violates subsection (a) of this section shall be adjudged delinquent and shall for a first adjudication be fined $50 or ordered to perform 25 hours of community service work, and for a second adjudication and for all subsequent adjudications be lined $50 and ordered to perform 50 hours of community service work. A subsequent adjudication of delinquency is one that occurs within 12 months of a prior like offense.

§ 1125. Unannounced inspections; reporting; enforcement.

(a) The Department of Public Safety or its delegates shall be responsible for conducting annual, random, unannounced inspections at locations where tobacco products are sold or distributed to test and ensure compliance with and enforcement of §§ 1116-1120 and § 1124 of this title.

(b) Persons under the age of 18 may be enlisted by the Department of Public Safety or its delegates to test compliance with and enforcement of §§ 1116-1120 and § 1124 of this title, provided, however that such persons may be used only under the direct supervision of the Department of Public Safety, its employees or delegates and only where written parental consent has been provided.

(c) Participation in the inspection and enforcement activities of this section by a person under 18 years of age shall not constitute a violation of this subpart for the person under 18 years of age, and the person under 18 years of age is immune from prosecution thereunder, or under any other provision of law prohibiting the purchase of these products by a person under 18 years of age.

(d) The Department of Public Safety shall adopt and publish guidelines for the use of persons under 18 years of age in inspections conducted pursuant to this section.

(e) The Department of Public Safety may enter into an agreement with any local law enforcement agency for delegation of the inspection and enforcement activities of this section within the local law enforcement agency's jurisdiction. The contract shall require the inspection and enforcement activities of the local law enforcement agency to comply with Subpart B, Subchapter V. Chapter 5 of this title and with all applicable laws.

(I) In cases where inspection and enforcement activities have been delegated to a local law enforcement agency pursuant to this section, any inspection or enforcement by the Department of Public Safety in the jurisdiction of the local law enforcement agency shall be coordinated with the local law enforcement agency.

(g) The Delaware Department of Health and Social Services shall annually submit to the Secretary of the United States Department of Health and Human Services the report required by § 1926 of the Federal Public Health Service Act (42 U.S.C. 300x26). A copy of this report shall be available to the Governor and Legislature.

- §1126. Jurisdiction.

The Justices of the Peace Court shall have jurisdiction over violations of this subpart of this subchapter, except in the instance of violations by a person who has not attained the age of 18, in which case the Family Court shall have jurisdiction.

§1127. Pre-emption.

The provisions of this Subchapter 13 shall preempt and supersede any provisions of any municipal or county ordinance or regulation on the subject of Subpart B of this chapter enacted after June 30, 1996."

Section 5. The provisions of this chapter shall be effective ninety days after enactment into law.

Approved April 5, 1996