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Bill 1071

Indicates Matter Stricken
Indicates New Matter

Indicates Matter Stricken

Indicates New Matter

AMENDED

May 27, 2004

S. 1071

S. Printed 5/27/04--H.

Read the first time April 14, 2004.

TO AMEND SECTION 16-13-510, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO FINANCIAL IDENTITY FRAUD, SO AS TO PROVIDE THAT IT IS UNLAWFUL TO USE THE IDENTITY OF ANOTHER PERSON FOR THE PURPOSE OF OBTAINING EMPLOYMENT.

Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 16-13-510 of the 1976 Code is amended to read:

"Section 16-13-510.    (A)    It is unlawful for a person to commit the offense of financial identity fraud.

(B)    A person is guilty of financial identity fraud when he, without the authorization or permission of another person and with the intent of unlawfully appropriating the financial resources of that person to his own use or the use of a third party:

(1)    obtains or records identifying information which would assist in accessing the financial records of the other person; or

(2)    accesses or attempts to access the financial resources of the other person through the use of identifying information as defined in subsection (C).

(C)    Identifying information includes, but is not limited to:

(1)    social security numbers;

(2)    driver's license numbers;

(3)    checking account numbers;

(4)    savings account numbers;

(5)    credit card numbers;

(6)    debit card numbers;

(7)    personal identification numbers;

(8)    electronic identification numbers;

(9)    digital signatures; or

(10)    other numbers or information which may be used to access a person's financial resources.

(D)    It is unlawful to use the identifying information in subsection (C) of another person for the purpose of obtaining employment, without the consent of that person.

(D)(E)    A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than ten years, or both. The court may order restitution to the victim pursuant to the provisions of Section 17-25-322."

SECTION    2.    A.    This SECTION may be cited as the "Youth Access to Tobacco Prevention Act of 2003".

B.     Section 16-17-500 of the 1976 Code, as last amended by Act 445 of 1996, is further amended to read:

"Section 16-17-500.    (A)    It shall be is unlawful for any a person to sell, furnish, give, distribute, purchase for, or provide any a minor under the age of eighteen years with cigarettes, tobacco, cigarette paper, or any substitute therefore a tobacco product. Any person violating the provisions of this section, either in person, by agent or in any other way, shall be guilty of a misdemeanor and, upon indictment and conviction, therefor shall be punished as follows:

(1)    for a first offense by a fine not exceeding twenty-five dollars;

(2)    for a second offense, by a fine not exceeding fifty dollars; and

(3)    for a third or subsequent offense, by a fine of not less than one hundred dollars or imprisonment for not more than one year nor less than sixty days, or both.

One-half of any fine imposed shall be paid to the informer of the offense and the other half to the treasurer of the county in which such conviction shall be had.

(B)    It is unlawful for a person to sell a tobacco product to an individual who does not present upon demand proper proof of age. Proof of age is not required from an individual who the person reasonably believes to be over twenty-seven years of age. Failure to require identification to verify a person's age shall be used as evidence to the knowing and intentional violation of this provision unless the person knows the individual is at least eighteen years of age. Proof that is demanded, is shown, and reasonably is relied upon for the individual's proof of age is a defense to an action initiated pursuant to this section. To determine whether a person believes an individual is at least twenty-seven years of age, a court may consider, but is not limited to considering, proof of the individual's general appearance, facial characteristics, behavior, and manners. This subsection does not apply to mail order sales.

(C)    A retail distributor of tobacco products must train its retail sales employees regarding the provisions contained in this section. In lieu of the penalties contained in subsection (F), a retail establishment that fails to comply with this provision must be fined not more than one thousand dollars. A retail establishment that provides proof that it has complied with the provisions contained in this section is not subject to this penalty.

(D)    It is unlawful for an individual less than eighteen years of age to purchase, accept receipt, attempt to purchase, or attempt to accept receipt of a tobacco product, or present or offer to a person proof of age which is false or fraudulent for the purpose of purchasing or possessing a tobacco product. However, a person less than eighteen years of age may be enlisted by local law enforcement agencies to test a community's compliance with this section and to reduce the extent to which tobacco products are sold or distributed to individuals less than eighteen years of age when the testing is under the direct supervision of the law enforcement agency and with the individual's parental consent. In addition, a person less than eighteen years of age may be enlisted by the South Carolina Department of Alcohol and Other Drug Abuse Services, or a county alcohol and drug abuse authority to test an outlet's compliance with this section, with the permission of the individual's parent or guardian, to collect data for the federally mandated Youth Access to Tobacco Study.

(E)    It is unlawful for an individual less than eighteen years of age to possess a tobacco product. This subsection does not apply to the possession of tobacco products by an individual less than eighteen years of age who delivers tobacco products pursuant to his employment responsibilities.

(F)    Tobacco products may be accessible only in vending machines located in an establishment:

(1)    which is open only to persons who are eighteen years of age or older; or

(2)    where the vending machine is under continuous control by the owner or licensee of the premises, or an employee of the owner or licensee, can be operated only upon activation by the owner, licensee, or employee before each purchase, and is not accessible to the public when the establishment is closed. The owner, licensee, or employee must demand proof of age from a prospective purchaser if he has reasonable grounds to believe the prospective purchaser is less than twenty-seven years of age. Proof that an owner, licensee, or employee demanded, was shown, and reasonably relied upon an individual's proof of age is a defense to any action brought pursuant to this subsection.

Vending machines which distribute tobacco products in establishments must meet the requirements of this section within one hundred twenty days after the effective date of this section or must be removed.

(G)    A person or individual that intentionally or knowingly violates a provision contained in this section either in person, by agent, or in any other way, is guilty of a misdemeanor and, upon conviction, must be punished as follows:

(1)    for a first offense, by a fine not less than one hundred dollars;

(2)    for a second offense, which occurs within three years of the first offense, by a fine not less than two hundred dollars; and

(3)    for a third or subsequent offense, which occurs within three years of the first offense, by a fine not less than three hundred dollars.

All fines must be placed in the state general fund and distributed in the following manner:

(a)    one-half must be distributed to the treasurer of the county in which the conviction occurred; and

(b)    one-half must be distributed to the county alcohol and drug abuse commission and used for funding youth smoking prevention programs. A violation of this subsection is triable exclusively in either municipal or magistrate court.

A violation of this section is triable exclusively in either municipal or magistrate court.

(H)    In lieu of the penalties contained in subsection (G), a court may require an individual who is less than eighteen years of age who illegally purchases or possesses a tobacco product to perform not less than twenty hours of community service for a first offense and not less than forty hours of community service for a second or subsequent offense.

(I)    As used in this section 'person' means an individual. 'Person' does not mean a firm, partnership, corporation, company, association, club, or commercial entity the person is associated with.

(J)    Notwithstanding any other provision of law, a violation of this section does not violate an establishment's beer and wine permit and is not a ground for revocation or suspension of a beer and wine permit.

(K)    A person who is less than eighteen years of age and who has been convicted of violating a provision of this section may have his record expunged upon becoming eighteen years of age if he has paid any fine imposed upon him and successfully completed any court-ordered community service."

C.     Section 16-17-501 of the 1976 Code, as added by Act 445 of 1996, is amended to read:

"Section 16-17-501.    As used in this Section and Sections 16-17-500, 16-17-502, 16-17-503, and 16-17-504:

(1)    'Distribute' means to sell, furnish, give, or provide tobacco products, including tobacco product samples, cigarette paper, or a substitute for them, to the ultimate consumer.

(2)    'Proof of age' means a driver's license or other documentary or written evidence that the individual is eighteen years of age or older identification card issued by this state, or a United States Armed Services identification card.

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

(4)    'Sampling' means the distribution of samples to members of the general public in a public place.

(5)    'Tobacco product' means a product that contains tobacco and is intended for human consumption."

SECTION    3.    A.     Section 16-17-530 of the 1976 Code is amended to read:

"Section 16-17-530.    Any A person is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars, or imprisoned more than thirty days who: shall

(a)(1)    be is found on any a highway or at any a public place, or public gathering in a grossly intoxicated condition, or otherwise conducting himself in a disorderly or boisterous manner,;

(b)(2)    use uses obscene or profane language that creates an imminent risk of violent reaction from the language on any a highway, or at any a public place or gathering, or in hearing distance of any a schoolhouse or church; or

(c)(3)    while under the influence or feigning to be under the influence of intoxicating liquor, without just cause or excuse, discharge any a gun, pistol, or other firearm while upon or within fifty yards of any a public road or highway, except upon his own premises, shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days."

B.    The repeal or amendment by this Section of any law does not affect pending actions, rights, duties, or liabilities founded on it, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision expressly provides. After the effective date of this Section, all laws repealed or amended by this Section must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this Section, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION    4.    A.     Article 15, Chapter 13, Title 7 of the 1976 Code is amended by adding:

"Section 7-13-1655.    (A)    As used in this section, 'voting system' means:

(1)    the total combination of mechanical, electromechanical, or electronic equipment, including the software, firmware, and documentation required to program, control, and support the equipment that is used to:

(a)    define ballots;

(b)    cast and count votes;

(c)    report or display election results; and

(d)    maintain and produce audit trail information; and

(2)    the practices and associated documentation used to:

(a)    identify system components and versions of these components;

(b)    test the system during its development and maintenance;

(c)    maintain records of system errors and defects;

(d)    determine specific system changes to be made to a system after the initial qualification of the system; and

(e)    make available materials to the voter, such as notices, instructions, forms, or paper ballots.

(B)    The State Election Commission shall:

(1)    approve and adopt one voting system to be used by authorities charged by law with conducting elections;

(2)    support the authorities charged by law by providing training for personnel in the operation of the voting system approved and adopted by the commission; and

(3)    support all aspects of creating the ballots and the database of the voting system which is approved and adopted.

B.     Section 7-13-1320 of the 1976 Code is amended to read:

"Section 7-13-1320.    (a)    The use of vote recorders may be authorized for use in some absentee precincts in a county without requiring their use in all precincts.

(b)    Vote recorders of different kinds may be used for different precincts in the same county.

(c)    The county election commission shall provide vote recorders in such numbers as it deems considers necessary in good working order and of sufficient capacity to accommodate the names of all candidates for all party offices and nominations and public offices which, under the provisions of existing laws and party rules, are to be voted for at any primary or other election."

C.     Section 7-13-1330(A) and (H) of the 1976 Code, as last amended by Act 103 of 1999, is further amended to read:

"Section 7-12-1330.    (A)    Before any kind of vote recorder system, including an optical scan voting system, is used at any election, it shall must be approved by the State Election Commission which shall examine the vote recorder and shall make and file in the commission's office a report, attested by the signature of the executive director, stating whether, in the opinion of the commission, the kind of vote recorder so examined can may be accurately and efficiently used by electors at elections, as provided by law. No A vote recorder or optical scan voting system may not be approved for use in the State unless certified by an Independent Testing Authority (ITA) accredited qualified by the National Association of State Election Directors and the State Election Commission as meeting or exceeding the minimum requirements of the Federal Election Commission's national voting system standards. If this report states that the vote recorder can may be so used, the recorder shall must be considered approved and vote recorders of its kind may be adopted for use at elections, as herein provided in this section.

(H)    Before any vote recorder or optical scan voting system approved after July 1, 1999, may be used in elections in the State, all source codes for the system must be placed in escrow by the manufacturer, at the manufacturer's expense, with the approved software ITA. These source codes must be available to the State Election Commission in the event that case the company goes out of business, pursuant to court order, or in the event that if the State Election Commission determines that an examination of these source codes is necessary. It is the responsibility of the manufacturer to place all updates of these source codes in escrow and to notify the State Election Commission that this requirement has been met."

D.        Section 7-13-1620 of the 1976 Code, as last amended by Act 103 of 1999, is further amended to read:

"(A)    Before any kind of voting machine, including an electronic voting machine, system is used at any an election, it must be approved by the State Election Commission which shall examine the voting machine system and make and file in the commission's office a report, attested to by the signature of the commission's executive director, stating whether, in the commission's opinion, the kind of voting machine system so examined can may be accurately and efficiently used by electors at elections, as provided by law. No A voting machine system may not be approved for use in the State unless certified by an Independent Testing Authority (ITA) accredited qualified by the National Association of State Election Directors and the State Election Commission as meeting or exceeding the minimum requirements of the Federal Election Commission's national voting system standards.

(B)    When a voting machine system has been approved for use before July 1, 1999, it may be used in elections. However, if the system's software or firmware is improved or changed, the system must comply with the requirements of subsection (A).

(C)    Any A person or company who requests an examination of any type of voting machine must system shall pay a nonrefundable examination fee of one thousand dollars for a new voting system. A nonrefundable examination fee of five hundred dollars must be paid for an upgrade to any existing system. The State Election Commission may reexamine any voting machine system when evidence is presented to the commission that the accuracy or the ability of the machine system to be used satisfactorily in the conduct of elections is in question.

(D)    Any A person or company who seeks approval for any type of voting machine system in this State must shall file with the State Election Commission a list of all states or jurisdictions in which that voting machine system has been approved for use. This list must state how long the machine system has been used in the State; contain the name, address, and telephone number of that state or jurisdiction's chief election official; and disclose any reports compiled by state or local government concerning the performance of the machine system. The vendor is responsible for filing this information on an ongoing basis.

(E)    Any A person or an individual who seeks approval for any type of voting machine must system shall file with the State Election Commission copies of all contracts and maintenance agreements used in connection with the sale of the voting machine system. All changes to standard contracts and maintenance agreements must be filed with the State Election Commission.

(F)    Any A person or company who seeks approval for any voting machine must system shall conduct, under the supervision of the State Election Commission and any county election commission, a field test for any new voting machine system, as part of the certification process. The field test shall must involve South Carolina voters and election officials and must be conducted as part of a scheduled primary, general, or special election. This test must be held in two or more precincts, and all costs relating to the use of the voting machine system must be borne by the vendor. The test must be designed to gauge voter reaction to the machine system, problems that voters have with the machine system, and the number of units required for the efficient operation of an election. The test also must also demonstrate the accuracy of votes reported on the machine system.

(G)    Before any a voting machine system, approved after July 1, 1999, may be used in elections in the State, all source codes for the system must be placed in escrow by the manufacturer at the manufacturer's expense with the approved software ITA with the Secretary of State. These source codes must be available to the State Election Commission in the event that case the company goes out of business, pursuant to court order, or in the event that if the State Election Commission determines that an examination of these source codes is necessary. It is the responsibility of the manufacturer to place all updates of these source codes in escrow and to notify the State Election Commission that this requirement had been met.

(H)    After a voting machine system is approved, an improvement or change in the machine system must be submitted to the State Election Commission for approval pursuant to this section; however, this requirement does not apply to the technical capability of a general purpose computer, reader, or printer used for election preparation or ballot tallying.

(I)    If the State Election Commission determines that a voting machine system that was approved no longer meets the requirements of subsections (A) and (B) or Section 7-13-1640, the commission may decertify that machine system. A decertified machine shall system must not be used in an election unless it is reapproved by the commission under pursuant to the provisions of subsections (A) and (B).

(J)    No A member of the State Election Commission, county election commission, custodian, or member of a county governing body may not have any a pecuniary interest in any voting machine system or in the manufacture or sale of any voting machine system."

E.     Sections 7-13-1310, 7-13-1650, and 7-13-1660 of the 1976 Code are repealed.

F.     This Section takes effect upon approval by the Governor and when funding is available to implement the requirements of this Section.

SECTION    5.    Chapter 1, Title 6 of the 1976 Code is amended by adding:

"Section 6-1-140.    Notwithstanding any other provision of law, for political subdivisions of this State that were created to operate hospitals on a local or regional basis, which receive Medicaid funds to directly provide health care services, and whose governing body is not a county board, committee, or commission within the meaning of Section 4-9-170, the ability to call for or conduct advisory or binding referenda regarding their activities shall rest solely with the governing board of the political subdivision or a governmental body which appoints the board, including a county legislative delegation."

SECTION    6.    A.    Section 2-19-10(A) of the 1976 Code, as last amended by Act 391 of 1996, is further amended to read:

"(A)    Whenever When an election is to be held by the General Assembly in Joint Session, for members of the judiciary, a Judicial Merit Selection Commission, composed of ten members, shall must be appointed, in the manner prescribed by this section, to consider the qualifications and fitness of the candidates. The Judicial Merit Selection Commission shall meet at least once annually and at other times as may be designated by the chairman. The commission, at its first meeting and then annually, shall elect a chairman and a vice chairman who shall serve for a term of one year and until their successors are elected and qualified, and adopt rules necessary to the purposes of the commission. These rules shall address, among other things:

(1)    the confidentiality of records and other information received concerning candidates for judicial office;

(2)    the conduct of proceedings before the commission;

(3)    receipt of public statements in support of or in opposition to any of the candidates;

(4)    procedures to review the qualifications and fitness of retired judges for continued judicial service;

(5)    contacting incumbent judges regarding their desire to seek re-election;

(6)    prohibition against candidates communicating with individual members of the commission concerning the qualifications and fitness of candidates unless specifically authorized by the commission.

A member may succeed himself as chairman or vice chairman. Six members of the commission constitute a quorum at all meetings."

B.     Section 2-19-20 of the 1976 Code, as last amended by Act 32 of 1999, is further amended to read:

"Section 2-19-20.     (A)    It is the responsibility of the Judicial Merit Selection Commission to determine when judicial vacancies are to will occur in the administrative law judge division and on the family court, circuit court, court of appeals, or Supreme Court and to expeditiously investigate in advance the qualifications and fitness of those who seek nomination judicial office. For purposes of this chapter, a vacancy is created in the administrative law judge division or on the family court, circuit court, court of appeals, or Supreme Court when any of the following occurs:

(1)        a term expires;

(2)        a new judicial position is created; or

(3)        a judge can no longer serve due to resignation, retirement, disciplinary action, disability, or death.

(B)    The commission, upon receiving notice of a judicial vacancy, ascertaining that a judicial vacancy shall will occur, or receiving the decision of an incumbent judge regarding his seeking re-election, shall notify the Supreme Court of the vacancy for publication in the advance sheets provided by the Clerk of the Supreme Court at least thirty days prior to closing applications for the vacancy. The commission also shall, if practicable, also notify the South Carolina Bar, if practicable, other professional legal organizations it considers appropriate, and each newspaper of this State with daily circulation of the vacancy at least thirty days prior to closing applications for the vacancy. This notice must include, but not be limited to, the judicial office in which the vacancy occurs, the address to which, and the date by which interested candidates may apply.

(C)    The Judicial Merit Selection Commission shall announce and publicize vacancies and forthcoming vacancies in the administrative law judge division, on the family court, circuit court, court of appeals, and Supreme Court. A person who desires to be considered for nomination judicial office as justice or judge may make application to the commission. No person may concurrently seek more than one judicial vacancy. The commission shall announce the names of those persons who have applied.

(D)    Any person wishing to seek a judicial office, which is elected by the General Assembly, shall file a notice of intention to seek the office with the Judicial Merit Selection Commission. Upon receipt of the notice of intention, the commission shall begin to conduct the investigation of the candidate as it considers appropriate and may in the investigation utilize the services of any agency of state government. This Upon request, the agency shall, upon request, cooperate fully with the commission."

C.     Section 2-19-25 of the 1976 Code, as last amended by Act 391 of 1996, is further amended to read:

"Section 2-19-25.    The Judicial Merit Selection Commission is authorized to investigate and obtain information relative to any candidate for an administrative law judgeship or a family court, circuit court, court of appeals, or Supreme Court judgeship from any state agency or other group including, but not limited to, court administration and any law enforcement agency, to the extent permitted by law. The chairman of the commission shall notify the president of the South Carolina Bar of the judgeships to be filled and of the candidates for those judgeships no later than four weeks before the scheduled date for the public hearing. The chairman of the commission shall also shall request the South Carolina Bar to offer the commission an assessment of each candidate's qualifications and fitness for the judgeship sought, and the date by which the assessment must be returned to the commission. This assessment must specify the bar's finding as to whether each candidate is qualified or unqualified for the judgeship sought and the reasons for that finding. The commission may receive the bar's assessment in that form and at that time it desires but shall attach the assessments to its findings of fact in such a form as the commission considers appropriate. Failure of the bar to return the assessment by the date requested is not a ground for delaying the applicable hearings or election."

D.        Section 2-19-30 of the 1976 Code, as last amended by Act 388 of 1998, is further amended to read:

"Section 2-19-30.     (A) Upon completion of the investigation, the Chairman of the Judicial Merit Selection Commission shall schedule a public hearing concerning the qualifications and fitness of the candidates. Any person who desires to testify at the hearing, including candidates, shall furnish a written statement of his proposed testimony to the commission. The statements must be furnished no later than forty-eight hours before the date and time set for the hearing. The commission shall determine the persons who shall testify at the hearing. All testimony, including documents furnished to the commission, must be submitted under oath and persons knowingly furnishing false information either orally or in writing are subject to the penalties provided by law for perjury and false swearing.

(B)    During the course of the investigation, the commission may schedule an executive session at which each candidate, and other persons whom the commission wishes to interview, may be interviewed by the commission on matters pertinent to the candidate's qualification qualifications and fitness for the office to be filled.

(C)    A After a reasonable time thereafter, the commission shall render its tentative findings as to whether the candidate is qualified and fit for the office to be filled and its reasons therefor for the findings as to each candidate.

(D)    As soon as possible after the completion of the hearing, a verbatim copy of the testimony, documents submitted at the hearing, and findings of fact must be transcribed and published or otherwise made available in a reasonable number of copies to the members of both houses prior to the date of the scheduled election, and a copy thereof shall must be furnished to each candidate and anyone else upon request. A charge for these copies may be made as authorized in the Freedom of Information Act.

(E)    A candidate may withdraw at any stage of the proceedings and in this event no further inquiry or consideration of his candidacy shall may be made. All materials concerning that candidate including his report, transcript, application, materials, and other information gathered during the commission's investigation must be kept confidential and destroyed as soon as possible after the candidate's written notification to the commission of his withdrawal. The information concerning a withdrawn candidate also shall be is exempt from disclosure pursuant to Chapter 4 of Title 30."

E.     Section 2-19-35 of the 1976 Code, as last amended by Act 391 of 1996, is further amended to read:

"Section 2-19-35.    (A) The responsibility of the Judicial Merit Selection Commission is to investigate and consider the qualifications and fitness of the candidates for judicial office in the administrative law judge division or on the family court, circuit court, court of appeals, or Supreme Court. Investigations and consideration of the commission should include, but are not limited to, the following areas:

(1)    constitutional qualifications;

(2)    ethical fitness;

(3)    professional and academic ability;

(4)    character;

(5)    reputation;

(6)    physical health;

(7)    mental stability;

(8)    experience; and

(9)    judicial temperament.

(B)    In making nominations, race, gender, national origin, and other demographic factors should be considered by the commission to ensure nondiscrimination to the greatest extent possible as to all segments of the population of the State."

F.     Section 2-19-70 of the 1976 Code, as last amended by Act 388 of 1998, is further amended to read:

"Section 2-19-70.    (A)    No A member of the General Assembly may be elected to not file for a judicial office while he the member is serving in the General Assembly nor shall that person be elected to a judicial office for a period of one year after he either:

(1) ceases to be a member of the General Assembly; or

(2) fails to file for election to the General Assembly in accordance with Section 7-11-15.

(B)    The privilege of the floor in either house of the General Assembly may not be granted to any candidate or any immediate family member of a candidate unless the family member is serving in the General Assembly, during the time the candidate's application is pending before the commission and during the time his nomination by the commission he is listed as qualified and fit for election to a particular judicial office by the commission and that election is pending in the General Assembly.

(C)    No candidate for judicial office may seek directly or indirectly the pledge of a member of the General Assembly's vote or, directly or indirectly, contact a member of the General Assembly regarding screening for the judicial office until the qualifications and fitness of all candidates for that office have been determined by the Judicial Merit Selection Commission and the commission has formally released its report as to the qualifications and fitness of all candidates for the vacancy to the General Assembly. No member of the General Assembly may offer his pledge until the qualifications and fitness of all candidates for that office have been determined by the Judicial Merit Selection Commission and until the commission has formally released its report as to the qualifications and fitness of its nominees the candidates to the General Assembly. The formal release of the report of qualifications and fitness shall may occur no earlier than forty-eight hours after the nominees have been list of qualified and fit candidates is initially released to members of the General Assembly. For purposes of this section, indirectly seeking a pledge means the candidate, or someone acting on behalf of and at the request of the candidate, requesting a person to contact a member of the General Assembly on behalf of the candidate before nominations the list of qualified and fit candidates for that office are is formally made by the commission. The prohibitions of this section do not extend to an announcement of candidacy by the candidate and statements by the candidate detailing the candidate's qualifications and fitness.

(D)    No member of the General Assembly may trade anything of value, including pledges to vote for legislation or for other candidates, in exchange for another member's pledge to vote for a candidate for judicial office.

(E)    Violations of this section may be considered by the merit selection commission when it considers the candidate's qualifications and fitness. Violations of this section by members of the General Assembly shall must be reported by the commission to the House or Senate Ethics Committee, as may be applicable. Violations of this section by nonlegislative commission members shall must be reported by the commission to the State Ethics Commission. A violation of this section is a misdemeanor and, upon conviction, the violator must be fined not more than one thousand dollars or imprisoned not more than ninety days. Cases tried under this section may not be transferred from general sessions court pursuant to Section 22-3-545."

G.        Section 2-19-80 of the 1976 Code, as last amended by Act 49 of 2001, is further amended to read:

"Section 2-19-80.    (A)    The commission shall make nominations release to the General Assembly of candidates and their qualifications a list of the names of all candidates that are qualified and fit, as provided in Sections 15 and 27, Article V of the Constitution of this State and Section 2-19-35, for election to the Supreme Court, court of appeals, circuit court, family court, and the administrative law judge division. It shall review the qualifications of all applicants for a judicial office and select therefrom and submit to the General Assembly the names and qualifications of the three candidates whom it considers best qualified for the judicial office under consideration. If fewer than three persons apply to fill a vacancy or if the commission concludes there are fewer than three candidates qualified for a vacancy, it shall submit to the General Assembly only the names and qualifications of those who are considered to be qualified, with a written explanation for submitting fewer than three names.

(B)    The nominations list of qualified and fit candidates of the commission for any judgeship are is binding on the General Assembly, and it shall not elect a person not nominated found qualified and fit by the commission. Nothing shall prevent the General Assembly from rejecting all persons nominated. In this event, the commission shall submit another group of names and qualifications for that position. Further nominations in the manner required by this chapter must be made until the office is filled.

(C)(1)    If the commission does not find the incumbent justice or judge qualified and fit for the judicial office held and sought, his name shall may not be submitted to the General Assembly for re-election and upon expiration of his then current term of office, he shall cease serving in that judicial position.

(2)    If the commission finds an incumbent judge not qualified and fit for the office sought, or if an incumbent judge dies, withdraws, or becomes otherwise disqualified for the office sought between the time he makes application for the office and the date of the election therefor, the election for the office may not be held at that scheduled time, and the commission shall proceed in accordance with the provisions of this chapter to make other nominations for the office as though a new vacancy without an incumbent exists in that office, including reopening the application process with all required notices. Nothing prevents the commission from including in its new nominations list of qualified and fit candidates the names, and qualifications, and fitness of persons other than the incumbent judge it included in its previous nominations list.

(D)    The commission shall accompany its nominations list of qualified and fit candidates to the General Assembly with reports or recommendations as to the qualifications and fitness of particular candidates.

(E)    A period of at least two weeks must elapse between the date of the commission's nominations release of its list of qualified and fit candidates to the General Assembly and the date the General Assembly conducts the election for these judgeships."

H.        Section 2-19-90 of the 1976 Code, as added by Act 391 of 1996, is amended to read:

"Section 2-19-90.    The General Assembly shall meet in joint session for the election of judges. The date and time for the joint session shall be set by concurrent resolution upon the recommendation of the Judicial Merit Selection Commission. The Chairman of the Judicial Merit Selection Commission shall announce the commission's nominees list of qualified and fit candidates for each judicial race, and no further nominating or seconding speeches shall be are allowed by members of the General Assembly. In order to be elected, a candidate must receive a majority of the vote of the members of the General Assembly voting in joint session."

I.         Section 2-19-100, as last amended by Act 35 of 1997, is further amended to read:

"Section 2-19-100.    In order to be eligible for appointment by the Chief Justice to serve, any retired justice or judge of this State must have been reviewed by the Judicial Merit Selection Commission under procedures it shall establish to review retired judges' qualifications and fitness for continued judicial service and be found by the commission to be qualified and fit to serve in these situations within four years of the date of his appointment to serve, except that if a justice or judge retired before the expiration of his then current term, no further review of that justice or judge is required until that term would have expired."

J.     Section 2-19-110, as last amended by Act 35 of 1997, is further amended to read:

"Section 2-19-110.    Upon a vacancy in the office of master-in-equity, candidates therefor shall submit an application to the Judicial Merit Selection Commission. Upon completion of reports and recommendations, the commission shall submit such reports and recommendations on master-in-equity candidates to the appropriate county legislative delegations. The county legislative delegations shall then submit the name of a candidate to the Governor for consideration for appointment. Nothing shall prevent the Governor from rejecting the person nominated by the delegation. In this event, the delegation shall submit another name for consideration. No person found not qualified or unfit by the commission may be appointed to the office of master-in-equity. For purposes of this section, a vacancy is created in the office of the master-in-equity when any of the following occurs: a term expires, a new judicial position is created, or a judge no longer can serve due to resignation, retirement, disciplinary action, disability, or death. The Judicial Merit Selection Commission may begin screening prior to the actual date of the vacancy in the case of an expiration of term, resignation, or retirement pursuant to written notice thereof."

K.        Section 2-19-70 of the 1976 Code, as last amended by Act 388 of 1998, is further amended to read:

"Section 2-19-70.    (A)    As used in this section, 'immediate family member' means an individual who is:

(1)    a child residing in the person's household;

(2)    a spouse of the person; or

(3)    claimed by the person or the person's spouse as a dependent for income tax purposes.

(B)    No member of the General Assembly or member of his immediate family may be elected to a judicial office while he the member is serving in the General Assembly nor shall that person be elected to a judicial office for a period of one year after he either:

(1)    ceases to be a member of the General Assembly; or

(2)    fails to file for election to the General Assembly in accordance with Section 7-11-15.

(B)(C)     The privilege of the floor in either house of the General Assembly may not be granted to any a candidate or any an immediate family member of a candidate unless the family member is serving in the General Assembly, during the time the candidate's application is pending before the commission and during the time his nomination by the commission for election to a particular judicial office is pending in the General Assembly.

(C)(D)    No candidate for judicial office may seek directly or indirectly the pledge of a member of the General Assembly's vote or, directly or indirectly, contact a member of the General Assembly regarding screening for the judicial office until the qualifications of all candidates for that office have been determined by the Judicial Merit Selection Commission and the commission has formally released its report as to the qualifications of all candidates for the vacancy to the General Assembly. No member of the General Assembly may offer his pledge until the qualifications of all candidates for that office have been determined by the Judicial Merit Selection Commission and until the commission has formally released its report as to the qualifications of its nominees to the General Assembly. The formal release of the report of qualifications shall occur no earlier than forty-eight hours after the nominees have been initially released to members of the General Assembly. For purposes of this section, indirectly seeking a pledge means the candidate, or someone acting on behalf of and at the request of the candidate, requesting a person to contact a member of the General Assembly on behalf of the candidate before nominations for that office are formally made by the commission. The prohibitions of this section do not extend to an announcement of candidacy by the candidate and statements by the candidate detailing the candidate's qualifications.

(D)(E)     No member of the General Assembly may trade anything of value, including pledges to vote for legislation or for other candidates, in exchange for another member's pledge to vote for a candidate for judicial office.

(E)(F)     Violations of this section may be considered by the merit selection commission when it considers the candidate's qualifications. Violations of this section by members of the General Assembly shall be reported by the commission to the House or Senate Ethics Committee, as may be applicable. Violations of this section by nonlegislative commission members shall be reported by the commission to the State Ethics Commission. A violation of this section is a misdemeanor and, upon conviction, the violator must be fined not more than one thousand dollars or imprisoned not more than ninety days. Cases tried under this section may not be transferred from general sessions court pursuant to Section 22-3-545."

L.     If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this Section is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this Section, the General Assembly hereby declaring that it would have passed this Section, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    7.    A.    Section 14-7-1610 of the 1976 Code, as last amended by Act 208 of 2004, is further amended to read:

"Section 14-7-1610.    It is the intent of the General Assembly to enhance the grand jury system and to improve the ability of the State to detect and eliminate criminal activity. The General Assembly recognizes the great importance of having the federal authorities available for certain investigations. The General Assembly finds that crimes involving narcotics, dangerous drugs, or controlled substances, as well as crimes involving obscenity, often transpire or have significance in more than one county of this State. When this occurs, these crimes are most effectively detected and investigated by a grand jury system which has the authority to cross county lines.

The General Assembly further finds that there is a need to enhance the grand jury system to improve the ability of the State to detect and eliminate public corruption. Crimes involving public corruption transpire at times in a single county, but often transpire or have significance in more than one county of this State. The General Assembly believes that a state grand jury, possessing considerably broader investigative authority than individual county grand juries, should be available to investigate public corruption offenses in South Carolina.

The General Assembly further finds that there is a need to enhance the grand jury system to improve the ability of the State to detect and investigate crimes involving the election laws, including, but not limited to, those named offenses as specified in Title 7, or any common law crimes involving the election laws where not superseded, or any crime arising out of or in connection with the election laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the election laws.

The General Assembly finds it fundamentally necessary to improve the ability of the State to prevent, detect, investigate, and prosecute crimes that involve the depiction of children under the age of eighteen in sexual activity, and obscenity crimes that are directed toward or involve children under the age of eighteen. The serious and unacceptable threat that these crimes pose to children is self-evident and impacts the State as a whole even if the actual criminal act occurs only in one county of the State. An effective effort to eliminate these heinous crimes requires a coordinated effort, which is accomplished more effectively through the state grand jury system. The effective prevention, detection, investigation, and prosecution of these crimes may require the use and application of state obscenity statutes or common law offenses not specifically directed toward the prevention and punishment of obscenity crimes involving children. Because many of these crimes involve computers, statewide jurisdiction over these crimes is consistent with the jurisdiction of a state grand jury over offenses defined in the Computer Crime Act. The General Assembly concludes that a state grand jury must be available to employ its broad investigative powers in the investigation of child-related obscenity by enabling the state grand jury to investigate all obscenity offenses, regardless of their multi-county impact, or whether they transpire or have significance in more than one county of this State.

The General Assembly further finds that there is a need to enhance the grand jury system to improve the ability of the State to detect and investigate crimes involving the environment including, but not limited to, offenses specified in Titles 13, 44, and 48, or any common law crime arising out of or in connection with the environmental laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the environment.

The General Assembly further finds that related criminal activity often arises out of or in connection with crimes involving narcotics, dangerous drugs or controlled substances, obscenity, or public corruption, or environmental offenses and that the mechanism for detecting and investigating these related crimes must be improved also.

Accordingly, the General Assembly concludes that a state grand jury should be allowed to investigate certain crimes related to narcotics, dangerous drugs, and obscenity and should also be allowed to investigate crimes involving public corruption, and election laws, and environmental offenses.

Nothing herein in this article limits the authority of a county grand jury, solicitor, or other appropriate law enforcement personnel to investigate, indict, or prosecute offenses within the jurisdiction of the state grand jury."

B.     Section 14-7-1615 of the 1976 Code, as last amended by Act 335 of 1992, is further amended by adding an appropriately lettered subsection to read:

"( )    'Environmental offenses' are crimes involving wilfull acts which result in actual and substantial harm to the water, ambient air, soil, or land, or both soil and land, including, but not limited to, violations of the Atomic Energy and Radiation Control Act, the State Underground Petroleum Environmental Response Bank Act, the State Safe Drinking Water Act, the Hazardous Waste Management Act, the Infectious Waste Management Act, the Solid Waste Policy and Management Act, the Pollution Control Act, the Erosion and Sediment Control Act, the South Carolina Mining Act, and the Coastal Zone Management Act, or any common law crimes involving environmental laws not superseded, or any crime arising out of or in connection with environmental laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the environment."

"Section 14-7-1630.    (A)    The jurisdiction of a state grand jury impaneled under this article extends throughout the State. The subject matter jurisdiction of a state grand jury in all cases is limited to the following offenses:

(1)    a crime involving narcotics, dangerous drugs, or controlled substances, or a crime arising out of or in connection with a crime involving narcotics, dangerous drugs, or controlled substances including, but not limited to, money laundering as specified in Section 44-53-475, obstruction of justice, perjury or subornation of perjury, or any attempt, aiding, abetting, solicitation, or conspiracy to commit one of the aforementioned crimes if the crime is of a multi-county nature or has transpired or is transpiring or has significance in more than one county of this State;

(2)    a crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615, a crime, statutory, common law or other, arising out of or in connection with a crime involving public corruption as defined in Section 14-7-1615, and any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615;

(3)    a crime involving the election laws including, but not limited to, those named offenses as specified in Title 7, or a common law crime involving the election laws if not superseded, or a crime arising out of or in connection with the election laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the election laws;

(4)    a crime involving computer crimes, pursuant to Chapter 16, Title 16, or a conspiracy or solicitation to commit a crime involving computer crimes;

(5)    a crime involving terrorism, or a conspiracy or solicitation to commit a crime involving terrorism. Terrorism includes an activity that:

(a)    involves an act dangerous to human life that is a violation of the criminal laws of this State;

(b)    appears to be intended to:

(i)    intimidate or coerce a civilian population;

(ii)    influence the policy of a government by intimidation or coercion; or

(iii)    affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(c)    occurs primarily within the territorial jurisdiction of this State;

(6)    a crime involving a violation of Chapter 1, Title 35 of the Uniform Securities Act, or a crime related to securities fraud or a violation of the securities laws; and

(7)    a crime involving obscenity including, but not limited to, a crime as provided in Article 3, Chapter 15, Title 16, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving obscenity.; and

(8)    crimes involving wilfull acts which result in actual and substantial harm to the water, ambient air, soil or land, or both soil and land, including, but not limited to, violations of the Atomic Energy and Radiation Control Act, the State Underground Petroleum Environmental Response Bank Act, the State Safe Drinking Water Act, the Hazardous Waste Management Act, the Infectious Waste Management Act, the Solid Waste Policy and Management Act, the Pollution Control Act, the Erosion and Sediment Control Act, the South Carolina Mining Act, and the Coastal Zone Management Act, or any common law crimes involving environmental laws not superseded, or any crime arising out of or in connection with environmental laws, or nay attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the environment if the anticipated damages, including, but not limited to the cost of remediation, are five hundred thousand dollars or more.

(B)    Whenever the Attorney General and the Chief of the South Carolina Law Enforcement Division consider it necessary and normal investigative or prosecutorial procedures are not adequate, the Attorney General may petition in writing to the Chief Administrative Judge of the judicial circuit in which he seeks to impanel a state grand jury for an order impaneling a state grand jury. This judge is referred to in this article as the impaneling judge. The petition must allege the type of offenses to be inquired into and, in the case of those offenses contained in subsection (A)(1), must allege that these offenses may be of a multi-county nature or have transpired or are transpiring or have significance in more than one county of the State. The petition in all instances must specify that the public interest is served by the impanelment.

(C)    In all investigations of crimes specified in subsection (A)(8), except in matters where the Department of Health and Environmental Control or its officers or employees are the subjects of the investigation, the Attorney General must consult with and receive a formal written recommendation from the Commissioner of the Department of Health and Environmental Control before presenting the petition to the Chief Administrative Judge pursuant to Section 14-7-1630(B). If the Commissioner of the Department of Health and Environmental Control fails to provide a formal written recommendation within ten days of the Attorney General's request, the Attorney General may proceed with the petition to the Chief Administrative Judge pursuant to Section 14-7-1630(B), unless the Attorney General And commissioner have mutually agreed upon an extension of that time period. The ultimate recommendation by the commissioner is not binding on the Attorney General.

(D)    The impaneling judge, after due consideration of the petition, may order the impanelment of a state grand jury in accordance with the petition for a term of twelve calendar months. Upon petition by the Attorney General, the then chief administrative judge of the judicial circuit in which a state grand jury was impaneled, by order, may extend the term of that state grand jury for a period of six months but the term of that state grand jury, including any extension thereof, shall not exceed two years.

(D)(E)    The chief administrative judge of the circuit wherein a state grand jury is sitting shall preside over that state grand jury during his tenure as chief administrative judge. The successor chief administrative judge shall assume all duties and responsibilities with regard to any state grand jury impaneled before his term, including, but not limited to, presiding over the state grand jury and ruling on petitions to extend its term. This judge is referred to in this article as the presiding judge.

(E)(F)    The presiding judge may discharge a state grand jury prior to the end of its original term or any extension thereof, upon a determination that its business has been completed or upon the request of the Attorney General.

(F)(G)    If, at any time within the original term of any state grand jury or any extension thereof, the presiding judge determines that the state grand jury is not conducting investigative activity within its jurisdiction or proper investigative activity, the presiding judge may limit the investigation so that the investigation conforms with the jurisdiction of the state grand jury and existing law or he may discharge the state grand jury. An order issued pursuant to this subsection or under subsection (E) shall not become effective less than ten days after the date on which it is issued and actual notice given to the Attorney General and the foreman of the state grand jury, and may be appealed by the Attorney General to the Supreme Court. If an appeal from the order is made, the state grand jury, except as is otherwise ordered by the Supreme Court, shall continue to exercise its powers pending disposition of the appeal."

SECTION    8.    Section 11-49-60(16) of the 1976 Code, as added by Act 387 of 2000, is amended to read:

"(16)    direct the Attorney General of this State to enforce in the name of the State of South Carolina, and if permissible to enforce directly through its own attorneys in the name of the State, the master settlement agreement, but the board may not give any approval of any amendment to the agreement without the approval of the General Assembly. This power is a part of the contractual obligation owed to the holders of any bonds; and"

SECTION    9.    Section 11-49-150 of the 1976 Code, as added by Act 387 of 2000, is amended to read:

"Section 11-49-150.    The General Assembly consents to and approves the master settlement agreement on behalf of this State and all of its agencies, departments, offices, political subdivisions, and other instrumentalities and bodies politic; and no such agencies, departments, offices, political subdivisions, and other instrumentalities or bodies politic of the State shall have any power or authority to bring suit against the participating manufacturers for claims in the nature of those settled by the master settlement agreement. At any time when bonds are outstanding and for one year and one day thereafter, the State must not agree to the amendment of the master settlement agreement without the approval of the authority; during that period, the authority may approve on behalf of the State amendments to the master settlement agreement if such amendments do not diminish the rights and remedies of the authority or the holders or any outstanding bonds. and This restriction on amendment of the master settlement agreement is a part of the covenant with the bondholders."

SECTION    10.    A.    Title 11 of the 1976 Code is amended by adding:

Section 11-48-10.    The General Assembly finds that:

(1)    potential violations of Chapter 47 of this title, The Tobacco Escrow Fund Act, may threaten the integrity of the Tobacco Master Settlement Agreement, the financial interests of the State, and the public health; and

(2)    enacting procedural enhancements may deter potential violations and promote the enforcement of The Tobacco Escrow Fund Act, safeguard the Master Settlement Agreement, the financial interests of the State, and the public health.

Section 11-48-20.    As used in this chapter:

(1)    'Brand family' means all styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, menthol, lights, kings, and 100's and includes the use of a brand name alone or in conjunction with another word, trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, a previously known brand of cigarettes.

(2)    'Cigarette' has the same meaning as in Section 11-47-20(d).

(3)    'Nonparticipating manufacturer' means a tobacco product manufacturer that is not a participating manufacturer.

(4)    'Participating manufacturer' has the meaning given that term in Section 11(jj) of the Master Settlement Agreement and all amendments to it.

(5)    'Qualified escrow fund' has the same meaning as that term is defined in Section 11-47-20(f).

(6)    'Cigarette distributor' means a person required to pay the tax imposed by Section 12-21-620 or authorized to affix a tax stamp to a cigarette package pursuant to Title 12.

(7)    'Tobacco product manufacturer' has the same meaning as that term is defined in Section 11-47-20(i).

(8)    'Units sold' has the same meaning as that term is defined in Section 11-47-20(j).

Section 11-48-30.    (A)    Each tobacco product manufacturer whose cigarettes are sold in this State, whether directly or through a distributor, retailer, or similar intermediary or intermediaries shall execute and deliver on a form or in the manner prescribed by the Attorney General a certification to the Attorney General no later than the thirtieth day of April each year, certifying under penalty of perjury that, as of the date of this certification, the tobacco product manufacturer either is a participating manufacturer or is in full compliance with Section 11-47-30.

(1)    A participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update the list thirty days before any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.

(2)    A nonparticipating manufacturer shall include in its certification a complete list of all of its brand families:

(a)    separately listing brand families of cigarettes and the number of units sold for each brand family in the State during the preceding calendar year;

(b)    listing all of its brand families that have been sold in the State at any time during the current calendar year;

(c)    indicating by an asterisk a brand family sold in the State during the preceding calendar year that is no longer being sold in the State as of the date of the certification; and

(d)    identifying by name and address any other manufacturer of the brand families in the preceding or current calendar year. The nonparticipating manufacturer shall update the list thirty days before any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.

(3)    In the case of a nonparticipating manufacturer, the certification must certify further that:

(a)    it is registered to do business in the State or has appointed an agent resident within South Carolina for service of process and provided notice of the appointment;

(b)    it has established and continues to maintain a qualified escrow fund governed by an executed qualified escrow fund agreement that has been reviewed and approved by the Attorney General;

(c)    it is in full compliance with Section 11-47-30 and this chapter and regulations promulgated pursuant to them; and

(d)    the following information is accurate and complete:

(i)        name, address, and telephone number of the financial institution where the nonparticipating manufacturer has established the qualified escrow fund required pursuant to Section 11-47-30(b) and its regulations;

(ii)    the account number of the qualified escrow fund and subaccount number for the State of South Carolina;

(iii)    amount the nonparticipating manufacturer placed in the qualified escrow fund for cigarettes sold in the State during the preceding calendar year, the date, and amount of each deposit, and evidence or verification considered necessary by the Attorney General to confirm that information; and

(iv)    amounts of and dates of a withdrawal or transfer of funds the nonparticipating manufacturer made at any time from the qualified escrow fund or from another qualified escrow fund into which it made qualified escrow fund payments pursuant to Section 11-47-30(b) and its regulations.

(4)(a)    A tobacco product manufacturer may not include a brand family in its certification unless:

(i)        in the case of a participating manufacturer, it affirms that the brand family is to be considered its cigarettes for purposes of calculating its payments under the Master Settlement Agreement for the relevant year, in the volume and shares determined pursuant to the Master Settlement Agreement; and

(ii)    in the case of a nonparticipating manufacturer, it affirms that the brand family is considered its cigarettes for purposes of Chapter 47 of this title.

(b)    This item 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 Chapter 47 of this title.

(5)    The tobacco product manufacturers shall maintain all invoices and documentation of sales and other information relied upon for the certification for a period of five years, unless otherwise required by law to maintain them for a greater period of time.

(B)    The Attorney General shall develop and make available for public inspection or publish on the office web site a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of subsection (A) and all brand families that are listed in the certifications except:

(1)    The Attorney General shall not include or retain in the directory the name or brand families of a nonparticipating manufacturer that fails to provide the required certification or whose certification the Attorney General determines is not in compliance with items (2) and (3) of subsection (A), unless the Attorney General determines that the violation is cured to his satisfaction.

(2)    Neither a tobacco product manufacturer nor brand family may be included or retained in the directory if the Attorney General concludes in the case of a nonparticipating manufacturer that:

(a)    all qualified escrow fund payments required pursuant to Section 11-47-30(b) for any period for a brand family, whether or not listed by the nonparticipating manufacturer, have not been paid fully into a qualified escrow fund governed by a qualified escrow fund agreement approved by the Attorney General; or

(b)    all outstanding final judgments, including interest on them, for violations of Section 11-47-30(b) have not been fully satisfied for the brand family and the manufacturer.

(3)    The Attorney General shall update the directory as necessary to correct mistakes, to add or remove a tobacco product manufacturer or brand families, and to keep the directory in conformity with the requirements of this chapter.

(4)    A cigarette distributor shall provide and update as necessary an electronic mail address to the Attorney General for the purpose of receiving notifications required by this chapter.

(5)    Notwithstanding the provisions of items (1) and (2) of this subsection, in the case of a nonparticipating manufacturer who has established a qualified escrow fund account that has been approved by the Attorney General, the manufacturer or its brand families must not be removed from the directory unless the manufacturer has been given at least fourteen days notice of the intended action. For the purposes of this section, notice is considered sufficient if it is sent either electronically to an electronic-mail address or by first class to a postal mailing address provided by the manufacturer in its most recent certification filed pursuant to this section. The notified nonparticipating manufacturer has fourteen days from the receipt of the notice to comply. At the time that the Attorney General sends notice of its intent to remove the manufacturer from the directory, the Attorney General shall post the notice directly.

(C)(1)    It is unlawful for any person to:

(a)    affix a stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory if such a stamp is required by law; or

(b)    sell, offer, acquire, hold, own, possess, transport, import or cause to be imported, for sale in this State cigarettes of a tobacco product manufacturer or brand family not included in the directory, or to import such cigarettes for personal consumption.

(2)    A person who violates the provisions of item (1) of this subsection engages in an unfair and deceptive trade practice in violation of Chapter 5, Title 39.

(3)    A person who, with knowledge of the prohibitions provided in item (1) of this section violates the provisions of item (1) of this section, is guilty of a misdemeanor and, upon conviction, must be punished by a fine not to exceed one thousand dollars or imprisoned for not more than one year, or both. Each day a violation occurs constitutes a separate offense.

Section 11-48-40.    (A)    A nonresident or foreign nonparticipating manufacturer that has not registered to do business in the State as a foreign corporation or business entity, as a condition precedent to having its brand families listed or retained in the directory, shall appoint and continually engage without interruption the services of an agent in this State to act as agent for the service of process on whom all process and action or proceeding against it concerning or arising out of the enforcement of Chapter 47 of this title, may be served in a manner authorized by law. That service is legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, phone number, and proof of the appointment and availability of the agent to, and to the satisfaction of, the Attorney General.

(B)    The nonparticipating manufacturer shall provide notice to the Attorney General thirty calendar days before termination of the authority of an agent and proof to the satisfaction of the Attorney General of the appointment of a new agent no fewer than five calendar days before the termination of an existing agent appointment. If an agent terminates an agency appointment, the nonparticipating manufacturer shall notify the Attorney General of the termination within five calendar days and shall include proof to the satisfaction of the Attorney General of the appointment of a new agent.

(C)    A nonparticipating manufacturer whose cigarettes are sold in this State without appointing or designating an agent as required by this section is deemed to have appointed the Secretary of State as the agent and may be proceeded against in courts of this State by service of process upon the Secretary of State; except that, appointment of the Secretary of State as the agent does not satisfy the condition precedent to having its brand families listed or retained in the directory.

Section 11-48-50.    (A)    No later than twenty days after the end of each calendar quarter, and more frequently if so directed by the Attorney General, a cigarette distributor shall submit information the Attorney General requires to facilitate compliance with this chapter including, but not limited to, a list by brand family of the total number of cigarettes or in the case of roll-your-own, the equivalent stick count for which the cigarette distributor affixed stamps during the previous calendar quarter or otherwise paid the tax due for the cigarettes. The cigarette distributor shall maintain, and make available to the Attorney General, all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and other information relied upon in reporting to the Attorney General for a period of five years. The distributors also shall provide this information and documentation to the Department of Revenue and any other documentation requested by the Department of Revenue. The Department of Revenue shall process this information as needed by that agency and as needed by the Attorney General for the purposes of this chapter and the Tobacco Escrow Fund Act.

(B)    The Attorney General may share the information received pursuant to this chapter with other federal, State, or local agencies only for purposes of enforcement of this chapter, Chapter 47 of this title, or corresponding laws of other states. The Attorney General is further authorized to disclose to a cigarette manufacturer any information that has been provided by a tobacco product distributor as required by this act regarding the purchases from that manufacturer.

(C)    The Attorney General may require at any time from the nonparticipating manufacturer, proof from the financial institution in which the manufacturer has established a qualified escrow fund for the purpose of compliance with Chapter 47 of this title of the amount of money in the qualified escrow fund exclusive of interest, the dates of deposits, and the amounts and dates of all withdrawals from the qualified escrow fund.

(D)    In addition to the information required to be submitted pursuant to Section 11-48-30, the Attorney General may require a cigarette distributor or tobacco product manufacturer to submit additional information including, but not limited to, samples of the packaging or labeling of each brand family, as is necessary to enable the Attorney General to determine if a tobacco product manufacturer is in compliance with this chapter.

(E)    To promote compliance with the provisions of this chapter, the Attorney General may promulgate regulations requiring a tobacco product manufacturer subject to the requirements of item (2) of Section 11-48-30(A) to make the qualified escrow fund deposits required in quarterly installments during the year in which the sales covered by such deposits are made. The Attorney General may require production of information sufficient to enable the Attorney General to determine the adequacy of the amount of the installment deposit.

Section 11-48-60.    (A)    In addition to or instead of another civil or criminal remedy provided by law, upon a determination that a cigarette distributor has violated Section 11-48-30(C) or a regulation promulgated pursuant to it, the Attorney General may cause to be revoked or suspended the license of a cigarette distributor in the manner provided by Sections 12-60-1310 through 12-60-1350. Each stamp affixed, should such a stamp be required by law, and each offer to sell cigarettes in violation of Section 11-48-30(C) constitutes a separate violation. The Attorney General also may impose a civil penalty for each violation in an amount not to exceed the greater of five times the retail value of the cigarettes or five thousand dollars upon a determination of violation of Section 11-48-30(C).

(B)    Cigarettes that have been sold, offered, or possessed for sale in this State or imported for personal consumption in this State in a civil or criminal violation of Section 11-48-30(C) are declared contraband, and may be seized pending adjudication of the violation. Upon a determination of violation, the cigarettes are forfeited and must be destroyed.

(C)    The Attorney General may seek an injunction to restrain a threatened or actual violation of Sections 11-48-30(C)(1), 11-48-50(A), or 11-48-50(D) by a cigarette distributor and to compel the cigarette distributor to comply with the sections. In an action brought pursuant to this section, the State may recover the costs of investigation, costs of the action, and reasonable attorney's fees.

Section 11-48-70.    A determination of the Attorney General to not list in, or to remove from, the directory a brand family or tobacco product manufacturer is subject to review in the manner provided pursuant to Article 3, Chapter 23 of Title 1.

Section 11-48-80.    (A)    A person must not be issued a license or granted a renewal of a license to act as a cigarette distributor unless the person has certified in writing, under penalty of perjury, that he intends to comply fully with this chapter.

(B)    For the year 2004, the first report of cigarette distributors required by Section 11-48-50(A) is due thirty days after the effective date of this chapter; the certifications by a tobacco product manufacturer described in Section 11-48-30(A) are due forty-five days after the effective date of this chapter; and the directory described in Section 11-48-30(B) must be published or made available within ninety days after the effective date of this chapter.

(C)    The Attorney General may promulgate regulations necessary to effect the purposes of this chapter.

(D)    In any action brought by the State to enforce this chapter, the Office of the Attorney General is entitled to recover the costs of investigation, expert witness fees, costs of the action, and reasonable attorney's fees for a successful investigation or action.

(E)    Unless otherwise expressly provided, the remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of this State.

(F)    If a court of competent jurisdiction finds that the provisions of this chapter and Chapter 47 conflict and cannot be harmonized, then the provisions of Chapter 47 must control. If any section, paragraph, item, or subitem, sentence, clause, or phrase of this chapter causes Chapter 47 of Title 11 to no longer constitute a Qualifying or Model Statute, as those terms are defined in the Master Settlement Agreement, then that portion of this chapter is invalid. If any section, paragraph, item, subitem, subsubitem, sentence, clause, or phrase of this chapter is held to be invalid, unlawful, or unconstitutional, that decision does not affect the validity of the remaining portions of this chapter or any part of it.

Section 11-48-90.    (A)    It is unlawful for a cigarette manufacturer, cigarette importer, cigarette distributor, or cigarette retailer to sell or possess counterfeit cigarettes. A person who violates this subsection is guilty of a felony and, upon conviction, must be punished as follows for a:

(1)    first violation with a total quantity of fewer than two cartons of cigarettes, by a fine of one thousand dollars or five times the retail value of the cigarettes involved, whichever is greater, or imprisonment not to exceed five years, or both;

(2)    subsequent violation with a total quantity of fewer than two cartons of cigarettes, by a fine of five thousand dollars or five times the retail value of the cigarettes involved, whichever is greater, or imprisonment not to exceed five years, or both the fine and imprisonment, and the revocation by the Department of Revenue of any license required pursuant to Article 5, Chapter 21 of Title 12 held by the cigarette manufacturer, cigarette importer, cigarette distributor, or cigarette retailer;

(3)    first violation with a total quantity of two cartons of cigarettes or more by a fine of two thousand dollars or five times the retail value of the cigarettes involved, whichever is greater, or imprisonment not to exceed five years, or both; or

(4)    subsequent violation with a quantity of two cartons of cigarettes or more by a fine of fifty thousand dollars or five times the retail value of the cigarettes involved, whichever is greater, or imprisonment not to exceed five years, or both the fine and imprisonment, and revocation by the Department of Revenue of any license required pursuant to Article 5, Chapter 21 of Title 12 held by the cigarette manufacturer, cigarette importer, cigarette distributor, or cigarette retailer license.

(B)(1)    For purposes of this section, counterfeit cigarettes includes cigarettes with false manufacturing labels or packages of cigarettes bearing counterfeit tax stamps.

(2)    Counterfeit cigarettes and related machinery encountered by a law enforcement agency in connection with a charged violation of this section are declared contraband and must be seized by the law enforcement agency and held by it pending adjudication of the charges. Upon conviction, the counterfeit cigarettes and related machinery are forfeited and must be destroyed.

Section 11-48-100.    It is unlawful for any person knowingly to violate any provision of this chapter and any regulations promulgated pursuant to this chapter. Where no specific criminal penalty is provided in this chapter, such a violation is a misdemeanor and, upon conviction, the person must be fined not more than one thousand dollars or imprisoned for not more than one year, or both.

Section 11-48-110.    This Chapter 48 is intended as an aid to the enforcement of, and not as an amendment or modification to, Chapter 47 of this title. The General Assembly hereby finds and declares that any agreement of the State to enforce Chapter 47 of this title pursuant to the Master Settlement Agreement shall not be modified, varied, amended, supplemented, increased, or extended by the enactment and enforcement of this Chapter 48. Without limiting the generality of the foregoing, the interpretation and the method or degree of enforcement of this Chapter 48 shall not be allowed to serve as evidence that the provisions of Chapter 47 of this title are not being diligently enforced as contemplated by the Master Settlement Agreement."

B.     Section 11-47-30(b)(2)(B) of the 1976 Code, as added by Act 47 of 1999, is amended to read:

"(B)    to the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow on account of units sold in this State in a particular year was greater than the state's allocable share of the total payments that such 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) the Master Settlement Agreement payments, as determined pursuant to Section IX(i) of that agreement including after final determination of all adjustments that such manufacturer would have been required to make on account of such units sold had it been a participating manufacturer, the excess shall must be released from escrow and revert back to such tobacco product manufacturer; or"

C.        If any part of the amendment to Section 11-47-30(b)(2)(B) of the 1976 Code made by this section is held by a court of competent jurisdiction to be unconstitutional, then Section 11-47-30(b)(2) of the 1976 Code is deemed to have been amended by deleting subsubitem (B) in its entirety. If thereafter a court of competent jurisdiction holds that Section 11-47-30(b)(2) as then in effect is unconstitutional, then Section 11-47-30(b)(2)(B) of the 1976 Code is deemed to have been amended to the form in which that subsubitem existed before its amendment by this section. Neither a holding of unconstitutionality nor the deleting of Section 11-47-30(b)(2)(B) as contemplated by this section affects, impairs, or invalidates any other part of Section 11-47-30 on the application of that section to any person or circumstance and the remaining parts of Section 11-47-30 continue in effect.

SECTION    11.    Unless otherwise provided herein, this act takes effect upon approval by the Governor.

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