BY REPRESENTATIVES Faatz, Anderson, Hefley, Leyba, Paschall, Schauer, Sullivant, Udall, and S. Williams;
also SENATORS Lacy, Dennis, Reeves, Rupert, and Wedding.
CONCERNING THE ENFORCEMENT OF LAWS RELATING TO THE
PURCHASE OF TOBACCO BY MINORS, AND MAKING AN APPROPRIATION THEREFOR.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. Article 35 of title 24, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PART to read:
PART 5
REGULATION OF TOBACCO SALES TO MINORS
2435501. Legislative declaration.
(1) THE GENERAL ASSEMBLY FINDS THAT:
(a) THE USE OF TOBACCO CREATES DANGEROUS
RISKS TO THE HEALTH OF THE PEOPLE OF THE STATE OF COLORADO;
(b) STUDIES HAVE SHOWN THAT MOST PEOPLE
WHO USE TOBACCO STARTED USING IT WHEN THEY WERE MINORS; AND
(c) THE COSTS OF HEALTH CARE FOR PERSONS
SUFFERING FROM DISEASES CAUSED BY THE USE OF TOBACCO ARE BORNE
BY ALL OF THE PEOPLE OF THE STATE OF COLORADO.
(2) THE GENERAL ASSEMBLY ALSO RECOGNIZES
THAT:
(a) FEDERAL REGULATIONS NOW REQUIRE STATES
THROUGH DESIGNATED STATE AGENCIES TO DEVELOP PROGRAMS TO REDUCE
THE USE OF TOBACCO BY MINORS AS DEMONSTRATED BY RANDOM INSPECTION
OF BUSINESSES THAT SELL TOBACCO AT RETAIL;
(b) AS OF JANUARY 1, 1998, THERE IS NO
STATE AGENCY SPECIFICALLY ASSIGNED THE RESPONSIBILITY OF ENFORCING
THE STATUTES OF THE STATE OF COLORADO PROHIBITING THE SALE OF
TOBACCO TO MINORS OR COORDINATING THE INSPECTION OF BUSINESSES
THAT SELL TOBACCO;
(c) THE LIQUOR ENFORCEMENT DIVISION OF
THE DEPARTMENT OF REVENUE HAS EXPERIENCE IN ENFORCING LAWS RELATING
TO THE SALE OF LIQUOR TO MINORS; AND
(d) THE LIQUOR ENFORCEMENT DIVISION WOULD
BE THE MOST COSTEFFECTIVE STATE AGENCY TO ENFORCE STATE
LAWS RELATING TO THE SALE OF TOBACCO TO MINORS.
2435502. Definitions.
AS USED IN THIS PART 5, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(1) "DEPARTMENT" MEANS THE DEPARTMENT
OF REVENUE.
(2) "DIVISION" MEANS THE DIVISION
OF LIQUOR ENFORCEMENT WITHIN THE DEPARTMENT.
(3) "HEARING OFFICER" MEANS
A PERSON DESIGNATED BY THE EXECUTIVE DIRECTOR OF THE DEPARTMENT
TO CONDUCT HEARINGS HELD PURSUANT TO SECTION 2435505.
(4) "MINOR" MEANS A PERSON UNDER
EIGHTEEN YEARS OF AGE.
(5) "RETAILER" MEANS A BUSINESS
OF ANY KIND AT A SPECIFIC LOCATION THAT SELLS CIGARETTES OR TOBACCO
PRODUCTS TO A USER OR CONSUMER.
(6) "TOBACCO PRODUCTS" HAS THE SAME MEANING AS PROVIDED IN SECTION 3928.5101 (5), C.R.S.
2435503. Sale of cigarettes
or tobacco products to minors or in vending machines prohibited
warning sign. (1) NO
RETAILER SHALL SELL OR PERMIT THE SALE OF CIGARETTES OR TOBACCO
PRODUCTS TO A MINOR; EXCEPT THAT IT SHALL NOT BE A VIOLATION IF
THE RETAILER ESTABLISHES THAT THE PERSON SELLING THE CIGARETTE
OR TOBACCO PRODUCT WAS PRESENTED WITH AND REASONABLY RELIED UPON
A PHOTOGRAPHIC IDENTIFICATION THAT IDENTIFIED THE PERSON PURCHASING
THE CIGARETTE OR TOBACCO PRODUCT AS BEING EIGHTEEN YEARS OF AGE
OR OLDER.
(2) NO RETAILER SHALL SELL OR OFFER TO
SELL ANY CIGARETTES OR TOBACCO PRODUCTS BY USE OF A VENDING MACHINE
OR OTHER COINOPERATED MACHINE; EXCEPT THAT CIGARETTES MAY
BE SOLD AT RETAIL THROUGH VENDING MACHINES ONLY IN:
(a) FACTORIES, BUSINESSES, OFFICES, OR
OTHER PLACES NOT OPEN TO THE GENERAL PUBLIC;
(b) PLACES TO WHICH MINORS ARE NOT PERMITTED
ACCESS; OR
(c) ESTABLISHMENTS WHERE THE VENDING MACHINE
DISPENSES CIGARETTES THROUGH THE OPERATION OF A DEVICE THAT ENABLES
AN ADULT EMPLOYEE OF THE ESTABLISHMENT TO PREVENT THE DISPENSING
OF CIGARETTES TO MINORS.
(3) ANY PERSON WHO SELLS OR OFFERS TO SELL ANY CIGARETTES OR TOBACCO PRODUCTS SHALL DISPLAY A WARNING SIGN, AS SPECIFIED IN THIS SUBSECTION (3). THE WARNING SIGN SHALL BE DISPLAYED IN A PROMINENT PLACE IN THE BUILDING AND ON ANY VENDING OR COINOPERATED MACHINE AT ALL TIMES, SHALL HAVE A MINIMUM HEIGHT OF THREE INCHES AND A WIDTH OF SIX INCHES, AND SHALL READ AS FOLLOWS:
WARNING
IT IS ILLEGAL FOR ANY PERSON
UNDER EIGHTEEN YEARS OF AGE
TO PURCHASE OR ATTEMPT TO PURCHASE
CIGARETTES OR TOBACCO PRODUCTS
AND, UPON CONVICTION, A $100.00
FINE MAY BE IMPOSED.
2435504. Enforcement authority
designation of agency coordination sharing
of information. (1) THE DIVISION
SHALL HAVE THE POWER TO ENFORCE ALL STATE STATUTES RELATING TO
THE PROHIBITION OF THE SALE OF CIGARETTES AND TOBACCO PRODUCTS
TO MINORS. THE DIVISION IS DESIGNATED AS THE LEAD STATE AGENCY
FOR THE ENFORCEMENT OF STATE STATUTES IN COMPLIANCE WITH FEDERAL
LAWS RELATING TO THE PROHIBITION OF THE SALE OF CIGARETTES AND
TOBACCO PRODUCTS TO MINORS.
(2) THE DIVISION SHALL COORDINATE THE
ENFORCEMENT OF STATE LAWS RELATING TO THE PROHIBITION OF THE SALE
OF CIGARETTES AND TOBACCO PRODUCTS TO MINORS BY MULTIPLE STATE
AGENCIES TO AVOID DUPLICATIVE INSPECTIONS OF THE SAME RETAILER
BY MULTIPLE STATE AGENCIES.
(3) THE DIVISION SHALL WORK WITH THE DEPARTMENT
OF HUMAN SERVICES AND THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
TO ENSURE COMPLIANCE WITH FEDERAL REGULATIONS FOR CONTINUED RECEIPT
OF ALL FEDERAL FUNDS CONTINGENT UPON COMPLIANCE WITH LAWS RELATED
TO THE PROHIBITION OF THE SALE OF CIGARETTES AND TOBACCO PRODUCTS
TO MINORS.
(4) IN ORDER TO ENFORCE LAWS RELATING
TO THE PROHIBITION OF THE SALE OF CIGARETTES AND TOBACCO PRODUCTS
TO PERSONS UNDER EIGHTEEN YEARS OF AGE, THE DEPARTMENT OF REVENUE
IS AUTHORIZED TO SHARE INFORMATION ON THE IDENTIFICATION AND ADDRESS
OF RETAILERS THAT SELL CIGARETTES AND TOBACCO PRODUCTS WITH ANY
STATE AGENCY RESPONSIBLE FOR THE ENFORCEMENT OF LAWS RELATING
TO THE PROHIBITION OF THE SALE OF CIGARETTES AND TOBACCO PRODUCTS
TO MINORS.
2435505. Hearings.
(1) SUBJECT TO THE LIMITATIONS CONTAINED IN SECTION
2435506, THE DIVISION, ON ITS OWN MOTION OR ON A COMPLAINT
FROM ANOTHER GOVERNMENTAL AGENCY RESPONSIBLE FOR THE ENFORCEMENT
OF LAWS RELATING TO THE PROHIBITION OF THE SALE OF CIGARETTES
AND TOBACCO PRODUCTS TO MINORS, SHALL HAVE THE POWER TO PENALIZE
RETAILERS FOR VIOLATIONS OF SECTION 2435503.
(2) (a) A RETAILER ACCUSED OF VIOLATING
SECTION 2435503 SHALL BE ENTITLED TO WRITTEN NOTICE
OF THE TIME AND PLACE OF THE HEARING PERSONALLY DELIVERED TO THE
RETAILER AT THE ACTUAL RETAIL LOCATION OR MAILED TO THE RETAILER
AT THE LAST KNOWN ADDRESS AS SHOWN BY THE RECORDS OF THE DEPARTMENT.
THE RETAILER IS ALSO ENTITLED TO BE REPRESENTED BY COUNSEL, TO
PRESENT EVIDENCE, AND TO CROSSEXAMINE WITNESSES.
(b) A RETAILER THAT DOES NOT CLAIM AN
AFFIRMATIVE DEFENSE PURSUANT TO SECTION 2435506 (2)
MAY WAIVE THEIR RIGHT TO A HEARING AND PAY THE APPROPRIATE FINE.
(3) A HEARING PURSUANT TO THIS SECTION
SHALL BE CONDUCTED AT A LOCATION DESIGNATED BY THE DIVISION BEFORE
A HEARING OFFICER. THE HEARING OFFICER SHALL HAVE THE POWER TO
ADMINISTER OATHS AND ISSUE SUBPOENAS TO REQUIRE THE PRESENCE OF
PERSONS AND THE PRODUCTION OF DOCUMENTS RELATING TO ANY ALLEGED
VIOLATION OF SECTION 2435503.
(4) IF THE HEARING OFFICER FINDS, BY A
PREPONDERANCE OF THE EVIDENCE, THAT THE RETAILER VIOLATED SECTION
2435503, THE HEARING OFFICER MAY ISSUE A WRITTEN ORDER
OR LEVY A FINE AGAINST THE RETAILER, SUBJECT TO THE PROVISIONS
OF SECTION 2435506.
(5) THE FINDINGS OF THE HEARING OFFICER
SHALL BE A FINAL AGENCY ORDER. ANY APPEAL OF THE DECISION OF
THE HEARING OFFICER SHALL BE FILED WITH THE COLORADO COURT OF
APPEALS PURSUANT TO SECTION 244106 (11).
(6) ANY UNPAID FINE LEVIED PURSUANT TO
THIS SECTION TOGETHER WITH REASONABLE ATTORNEY FEES MAY BE COLLECTED
IN A CIVIL ACTION FILED BY THE ATTORNEY GENERAL.
(7) ANY FINES COLLECTED FOR VIOLATIONS
OF SECTION 2435503 SHALL BE FORWARDED TO THE STATE
TREASURER WHO SHALL CREDIT THE SAME TO THE TOBACCO USE PREVENTION
FUND CREATED IN SECTION 2435507.
2435506. Limitation on
fines. (1) FOR A VIOLATION
OF SECTION 2435503 (1), THE PENALTY SHALL BE AS FOLLOWS:
(a) A WRITTEN WARNING FOR A FIRST VIOLATION
COMMITTED WITHIN A TWELVEMONTH PERIOD;
(b) A FINE OF TWO HUNDRED FIFTY DOLLARS
FOR A SECOND VIOLATION WITHIN A TWELVEMONTH PERIOD;
(c) A FINE OF FIVE HUNDRED DOLLARS FOR
A THIRD VIOLATION WITHIN A TWELVEMONTH PERIOD;
(d) A FINE OF ONE THOUSAND DOLLARS FOR A FOURTH VIOLATION WITHIN A TWELVEMONTH PERIOD; AND
(e) A FINE OF BETWEEN ONE THOUSAND DOLLARS
AND FIFTEEN THOUSAND DOLLARS FOR A FIFTH OR SUBSEQUENT VIOLATION
WITHIN A TWELVEMONTH PERIOD.
(2) NOTWITHSTANDING THE PROVISIONS OF
SUBSECTION (1) OF THIS SECTION, NO FINE FOR A VIOLATION OF SECTION
2435503 (1) SHALL BE IMPOSED UPON A RETAILER THAT
CAN ESTABLISH AN AFFIRMATIVE DEFENSE TO THE SATISFACTION OF THE
DIVISION OR THE HEARING OFFICER THAT, PRIOR TO THE DATE OF THE
VIOLATION, IT:
(a) HAD ADOPTED AND ENFORCED A WRITTEN
POLICY AGAINST SELLING CIGARETTES OR TOBACCO PRODUCTS TO PERSONS
UNDER THE AGE OF EIGHTEEN YEARS;
(b) HAD INFORMED ITS EMPLOYEES OF THE
APPLICABLE LAWS REGARDING THE SALE OF CIGARETTES AND TOBACCO PRODUCTS
TO PERSONS UNDER THE AGE OF EIGHTEEN YEARS;
(c) REQUIRED EMPLOYEES TO VERIFY THE AGE
OF CIGARETTE OR TOBACCO PRODUCT CUSTOMERS BY WAY OF PHOTOGRAPHIC
IDENTIFICATION; AND
(d) HAD ESTABLISHED AND IMPOSED DISCIPLINARY
SANCTIONS FOR NONCOMPLIANCE.
(3) THE AFFIRMATIVE DEFENSE ESTABLISHED
IN SUBSECTION (2) OF THIS SECTION MAY BE USED BY A RETAILER ONLY
TWICE AT EACH LOCATION WITHIN ANY TWELVEMONTH PERIOD.
(4) FOR A VIOLATION OF SECTION 2435503
(2) OR (3), THE PENALTY SHALL BE AS FOLLOWS:
(a) A WRITTEN WARNING FOR A FIRST VIOLATION
COMMITTED WITHIN A TWELVEMONTH PERIOD;
(b) A FINE OF FIFTY DOLLARS FOR A SECOND
VIOLATION WITHIN A TWELVEMONTH PERIOD;
(c) A FINE OF ONE HUNDRED DOLLARS FOR
A THIRD VIOLATION WITHIN A TWELVEMONTH PERIOD;
(d) A FINE OF TWO HUNDRED FIFTY DOLLARS FOR A FOURTH VIOLATION WITHIN A TWELVEMONTH PERIOD; AND
(e) A FINE OF BETWEEN TWO HUNDRED FIFTY
DOLLARS AND ONE THOUSAND DOLLARS FOR A FIFTH OR SUBSEQUENT VIOLATION
WITHIN A TWELVEMONTH PERIOD.
2435507. Tobacco use prevention
fund grants. (1) THERE
IS HEREBY CREATED IN THE STATE TREASURY THE TOBACCO USE PREVENTION
FUND, REFERRED TO IN THIS SECTION AS THE "FUND". MONEYS
IN THE FUND SHALL BE SUBJECT TO ANNUAL APPROPRIATION BY THE GENERAL
ASSEMBLY. ANY INTEREST DERIVED FROM THE DEPOSIT AND INVESTMENT
OF MONEYS IN THE FUND SHALL BE CREDITED TO THE FUND. ANY UNEXPENDED
OR UNENCUMBERED MONEYS REMAINING IN THE FUND AT THE END OF ANY
FISCAL YEAR SHALL REMAIN IN THE FUND AND SHALL NOT REVERT OR BE
TRANSFERRED TO THE GENERAL FUND OR ANY OTHER FUND OF THE STATE.
(2) SUBJECT TO ANNUAL APPROPRIATIONS BY
THE GENERAL ASSEMBLY, THE DEPARTMENT OF HUMAN SERVICES MAY MAKE
GRANTS FROM THE FUND TO PROGRAMS DESIGNED TO DEVELOP TRAINING
MATERIALS FOR RETAILERS RELATED TO THE PROHIBITION OF THE SALE
OF CIGARETTES AND TOBACCO PRODUCTS TO MINORS OR TO PROGRAMS DESIGNED
TO PREVENT THE USE OF CIGARETTES AND TOBACCO PRODUCTS BY MINORS.
2435508. Repeal.
THIS PART 5 IS REPEALED, EFFECTIVE JULY 1, 2001.
SECTION 2. 1813121
(2) and (4), Colorado Revised Statutes, are amended to read:
1813121. Furnishing cigarettes
or tobacco products to minors sale of cigarettes
or tobacco products in vending machines prohibited warning
sign. (2) (a) Any person
who is under eighteen years of age and who purchases OR ATTEMPTS
TO PURCHASE any cigarettes or tobacco products, as defined in
section 3928.5101 (5), C.R.S., commits a class 2 petty
offense, and, upon conviction thereof, shall be punished by a
fine of fifty
ONE HUNDRED dollars, or the court shall allow such person to perform
community service and be granted credit against the fine and court
costs at the rate of five dollars for each hour of work performed.
(b) IT SHALL NOT BE AN OFFENSE UNDER PARAGRAPH (a) OF THIS SUBSECTION (2) IF THE PERSON UNDER EIGHTEEN YEARS OF AGE WAS ACTING AT THE DIRECTION OF AN EMPLOYEE OF A GOVERNMENTAL AGENCY AUTHORIZED TO ENFORCE OR ENSURE COMPLIANCE WITH LAWS RELATING TO THE PROHIBITION OF THE SALE OF CIGARETTES AND TOBACCO PRODUCTS TO MINORS.
(4) (a) Any
person who sells or offers to sell any cigarettes or tobacco products,
as defined in section 3928.5101 (5), C.R.S., by use
of a vending machine or other coinoperated machine commits
a class 2 petty offense, and, upon conviction thereof, shall be
punished by a fine of two hundred dollars; except that cigarettes
may be sold at retail through vending machines only in:
(I) Factories, businesses, offices,
or other places not open to the general public;
(II) Places to which persons under
the age of eighteen years are not permitted access; or
(III) Establishments where the
vending machine dispenses cigarettes through the operation of
a device that enables an adult employee of the establishment to
prevent the dispensing of cigarettes to minors.
(b) Any person who sells or offers
to sell any cigarettes or tobacco products shall display a warning
sign, as specified in this paragraph (b). Any person who fails
to display said warning sign commits a class 2 petty offense,
and, upon conviction thereof, shall be punished by a fine of two
hundred dollars. Said warning sign shall be displayed in a prominent
place in the building and on such machine at all times and shall
have a minimum height of three inches and a width of six inches,
and shall read as follows:
WARNING
IT IS ILLEGAL FOR ANY
PERSON UNDER
EIGHTEEN YEARS OF AGE
TO PURCHASE
CIGARETTES AND TOBACCO
PRODUCTS
AND, UPON CONVICTION,
A $50.00
FINE MAY BE IMPOSED.
Any violation of the provisions of this paragraph
(b) shall not constitute a violation of any other provisions of
this section.
SECTION 3. 181901
(3) (l) (III), Colorado Revised Statutes, is amended to read:
181901. Definitions.
(3) (l) (III) "Peace officer, level
II," means an inspector of the state licensing authority
under the "Colorado Beer Code" or the liquor enforcement
division under section 1247904, C.R.S. OR PART 5 OF
ARTICLE 35 OF TITLE 24, C.R.S.; an authorized investigator of
the state lottery division pursuant to section 2435205
(3) or 2435206 (7), C.R.S.; any authorized investigator
and the director of the division of gaming and the executive director
of the department of revenue pursuant to section 1247.1204,
C.R.S.; any fire arson investigator appointed by the chief of
any fire department and approved by the sheriff or the chief of
police of the jurisdiction in which such fire arson investigator
performs duties; any officer, guard, or supervisory employee within
the department of corrections, except any investigator employed
by the department of corrections; a security guard employed by
the state of Colorado; a security officer as defined in section
247101, C.R.S.; a district wildlife manager, special
district wildlife manager, or parks and recreation officer defined
as a peace officer pursuant to section 331102, C.R.S.,
and acting under the authority of a peace officer pursuant to
sections 336101 and 3315101, C.R.S.; an
investigator for the division of racing events and the investigator's
supervisors, including the director of the division of racing
events pursuant to section 1260203, C.R.S., or a railroad
employee defined as a peace officer pursuant to section 4032104.5,
C.R.S., who shall have access to Colorado bureau of investigation
fugitive and stolen property records. "Peace officer, level
II," has the authority to enforce all the laws of the state
of Colorado while acting within the scope of his authority and
in the performance of his duties, and section 181106
(1.5) and section 183107 shall apply to "peace
officer, level II".
SECTION 4.
134102 (2), Colorado Revised Statutes, is amended
BY THE ADDITION OF A NEW PARAGRAPH to read:
134102. Jurisdiction.
(2) The court of appeals shall have initial jurisdiction
to:
(gg) REVIEW FINAL ACTIONS AND ORDERS APPROPRIATE
FOR JUDICIAL REVIEW OF THE DEPARTMENT OF REVENUE RELATING TO PENALTIES
FOR VIOLATIONS OF STATUTES RELATING TO THE SALE OF CIGARETTES
AND TOBACCO PRODUCTS TO MINORS PURSUANT TO SECTION 2435505
(5), C.R.S.
SECTION 5. Appropriations.
(1) In addition to any other appropriation, there is hereby appropriated,
out of any moneys in the general fund not otherwise appropriated,
to the department of revenue, liquor enforcement division, for
the fiscal year beginning July 1, 1998, the sum of one hundred
forty thousand eight hundred six dollars ($140,806) and 2.5 FTE,
or so much thereof as may be necessary, for the implementation
of this act. Said amount is exempt from the statutory limit on
state general fund appropriations pursuant to section 2475201.1
(1) (a) (III) (A), Colorado Revised Statutes.
(2) In addition to any other appropriation,
there is hereby appropriated to the department of law, for the
fiscal year beginning July 1, 1998, the sum of seven thousand
three hundred sixtysix dollars ($7,366) and 0.1 FTE, or
so much thereof as may be necessary, for the provision of legal
services to the department of revenue related to the implementation
of this act. Said sum shall be from cash funds exempt received
from the department of revenue out of the appropriation made in
subsection (1) of this section.
(3) In addition to any other appropriation,
there is hereby appropriated, out of any moneys in the tobacco
use prevention fund created in section 2435507, Colorado
Revised Statutes, not otherwise appropriated, to the department
of human services, alcohol and drug abuse division, for the fiscal
year beginning July 1, 1998, the sum of twentytwo thousand
dollars ($22,000), or so much thereof as may be necessary, for
the implementation of this act.
SECTION 6. Effective
date applicability. This act shall take
effect July 1, 1998, and shall apply to violations occurring on
or after said date.
SECTION 7. Safety
clause. The general assembly hereby finds, determines, and
declares that this act is necessary for the immediate preservation
of the public peace, health, and safety.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Patricia K. Dicks
CHIEF CLERK OF THE HOUSE ASSISTANT SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE
OF COLORADO