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HOUSE AMENDMENTS AMENDED RETURNED TO HOUSE
January 25, 2006
S. 384
Introduced by Senators Lourie, Thomas, Reese, Bryant, Knotts, Sheheen, Hutto, McGill, Jackson, Ford, Scott, Malloy, Land, Gregory, Drummond, Pinckney, Cromer, Short, Matthews, Campsen, Anderson and Hawkins
S. Printed 1/25/06--S.
Read the first time February 1, 2005.
TO AMEND SECTION 16-17-500, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO SUPPLYING MINORS WITH TOBACCO OR CIGARETTES, SO AS TO PROVIDE THAT THIS PROVISION APPLIES TO THE SALE, FURNISHING, GIVING, DISTRIBUTION, AND PROVISION TO A MINOR OF CIGARETTES, TOBACCO, CIGARETTE PAPER, OR A TOBACCO PRODUCT; TO PROVIDE THAT CERTAIN INDIVIDUALS LESS THAN EIGHTEEN YEARS OF AGE MAY NOT PURCHASE, ACCEPT RECEIPT OF, POSSESS, ATTEMPT TO PURCHASE, ATTEMPT TO ACCEPT RECEIPT OF, OR ATTEMPT TO POSSESS A TOBACCO PRODUCT OR TO OFFER FRAUDULENT PROOF OF AGE FOR THE PURPOSE OF PURCHASING OR POSSESSING A TOBACCO PRODUCT; TO REVISE THE DISBURSEMENT OF FINES COLLECTED, SO AS TO DISTRIBUTE ONE-HALF OF THESE FINES TO THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL FOR ITS YOUTH SMOKING PREVENTION PLAN; TO AUTHORIZE COMMUNITY SERVICE IN LIEU OF FINING A MINOR; AND TO REVISE THE PENALTIES FOR VIOLATIONS OF THIS SECTION.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Youth Access to Tobacco Prevention Act of 2006."
SECTION 2. Section 16-17-500 of the 1976 Code is amended to read:
"Section 16-17-500. (A) It shall be is unlawful for any person an individual to sell, furnish, give, distribute, purchase for, or provide any a tobacco product to a minor under the age of eighteen years with cigarettes, tobacco, cigarette paper, or any substitute therefor. 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 to sell a tobacco product to an individual who does not present upon demand proper proof of age. Failure to demand identification to verify an individual's age is not a defense to an action initiated pursuant to this subsection. 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 subsection.
(C) It is unlawful to sell a tobacco product through a vending machine unless the vending machine is located in an establishment:
(1) which is open only to individuals 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.
(D)(1) An individual who knowingly violates a provision of subsections (A), (B), or (C) in person, by agent, or in any other way is guilty of a misdemeanor and, upon conviction, must be:
(a) for a first offense, fined not less than one hundred dollars nor more than two hundred dollars;
(b) for a second offense, which occurs within three years of the first offense, fined not less than two hundred dollars nor more than three hundred dollars;
(c) for a third or subsequent offense, which occurs within three years of the first offense, fined not less than three hundred dollars nor more than four hundred dollars.
(2) In lieu of the fine, the court may require an individual to successfully complete a Department of Alcohol and Other Drug Abuse Services approved merchant tobacco enforcement education program.
(E)(1) A minor under the age of eighteen years must not purchase, attempt to purchase, possess, or attempt to possess a tobacco product, or present or offer proof of age that is false or fraudulent for the purpose of purchasing or possessing a tobacco product.
(2) A minor who knowingly violates a provision of subsection (E)(1) in person, by agent, or in any other way commits a non-criminal offense and is subject to a civil fine of twenty-five dollars. The civil fine is subject to all applicable court costs, assessments, and surcharges.
(3) In lieu of the civil fine, the court may require a minor to successfully complete a Department of Health and Environmental Control approved smoking cessation or tobacco prevention program, or to perform not more than five hours of community service for a charitable institution.
(4) If a minor fails to pay the civil fine, successfully complete a smoking cessation or tobacco prevention program, or perform the required hours of community service as ordered by the court, the court may restrict the minor's driving privileges to driving only to and from school, work, and church, or as the court considers appropriate for a period of ninety days beginning from the date provided by the court. If the minor does not have a driver's license or permit, the court may delay the issuance of the minor's driver's license or permit for a period of ninety days beginning from the date the minor applies for a driver's license or permit. Upon restricting or delaying the issuance of the minor's drivers license or permit, the court must complete and remit to the Department of Motor Vehicles any required forms or documentation. The minor is not required to submit his driver' s license or permit to the court or the Department of Motor Vehicles. The Department of Motor Vehicles must clearly indicate on the minor's driving record that the restriction or delayed issuance of the minor's driver's license or permit is not a traffic violation or a driver's license suspension. The Department of Motor Vehicles must notify the minor's parent, guardian, or custodian of the restriction or delayed issuance of the minor's driver's license or permit. At the completion of the ninety-day period, the Department of Motor Vehicles must remove the restriction or allow for the issuance of the minor's license or permit. No record may be maintained by the Department of Motor Vehicles of the restriction or delayed issuance of the minor's driver's license or permit after the ninety-day period. The restriction or delayed issuance of the minor's drivers license or permit must not be considered by any insurance company for automobile insurance purposes or result in any automobile insurance penalty, including any penalty under the Merit Rating Plan promulgated by the Department of Insurance.
(5) A violation of this subsection is not a criminal or delinquent offense and no criminal or delinquent record may be maintained. A minor may not be detained, taken into custody, arrested, placed in jail or in any other secure facility, committed to the custody of the Department of Juvenile Justice, or found to be in contempt of court for a violation of this subsection or for the failure to pay a fine, successfully complete a smoking cessation or tobacco prevention program, or perform community service.
(6) A violation of this subsection is not grounds for denying, suspending, or revoking an individual's participation in a state college or university financial assistance program including, but not limited to, a Life Scholarship, a Palmetto Fellows Scholarship, or a need-based grant.
(7) The uniform traffic ticket, established pursuant to Section 56-7-10, may be used by law enforcement officers for a violation of this subsection. A law enforcement officer issuing a uniform traffic ticket pursuant to this subsection must immediately seize the tobacco product. The law enforcement officer also must notify a minor's parent, guardian, or custodian of the minor's offense, if reasonable, within ten days of the issuance of the uniform traffic ticket.
(F) This section does not apply to the possession of a tobacco product by a minor working within the course and scope of his duties as an employee or participating within the course and scope of an authorized inspection or compliance check.
(G) Jurisdiction to hear a violation of this section is vested exclusively in the municipal court and the magistrate's court. A hearing pursuant to subsection (E) must be placed on the court' s appropriate docket for traffic violations, and not on the court's docket for civil matters.
(H) A retail establishment that distributes tobacco products must train all retail sales employees regarding the unlawful distribution of tobacco products to minors.
(I) Notwithstanding any other provision of law, a violation of this section does not violate the terms and conditions of an establishment's beer and wine permit and is not grounds for revocation or suspension of a beer and wine permit."
SECTION 3. Section 16-17-501(2) of the 1976 Code is amended to read:
"(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."
SECTION 4. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act 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 act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 5. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act 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 act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 6. This act takes effect six months after the date of approval by the Governor.
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