2010 Pennsylvania Code
Title 18 - CRIMES AND OFFENSES
Chapter 63 - Minors
6305 - Sale of tobacco.

     § 6305.  Sale of tobacco.
        (a)  Offense defined.--Except as set forth in subsection (f),
     a person is guilty of a summary offense if the person:
            (1)  sells a tobacco product to any minor;
            (2)  furnishes, by purchase, gift or other means, a
        tobacco product to a minor;
            (4)  locates or places a tobacco vending machine
        containing a tobacco product in a location accessible to
        minors;
            (5)  displays or offers a cigarette for sale out of a
        pack of cigarettes; or
            (6)  displays or offers for sale tobacco products in any
        manner which enables an individual other than the retailer or
        an employee of the retailer to physically handle tobacco
        products prior to purchase unless the tobacco products are
        located within the line of sight or under the control of a
        cashier or other employee during business hours, except that
        this paragraph shall not apply to retail stores which derive
        75% or more of sales revenues from tobacco products.
        (a.1)  Purchase.--A minor is guilty of a summary offense if
     the minor:
            (1)  purchases or attempts to purchase a tobacco product;
        or
            (2)  knowingly falsely represents himself to be at least
        18 years of age to a person for the purpose of purchasing or
        receiving a tobacco product.
        (b)  Penalty.--
            (1)  Except as set forth in paragraph (2), a person that
        violates subsection (a) shall be sentenced as follows:
                (i)  for a first offense, to pay a fine of not less
            than $100 nor more than $250;
                (ii)  for a second offense, to pay a fine of not less
            than $250 nor more than $500; or
                (iii)  for a third or subsequent offense, to pay a
            fine of not less than $500 nor more than $1,000.
            (2)  A retailer that violates subsection (a) shall be
        sentenced as follows:
                (i)  for a first offense, to pay a fine of not less
            than $100 nor more than $500;
                (ii)  for a second offense, to pay a fine of not less
            than $500 nor more than $1,000;
                (iii)  for a third offense, to pay a fine of not less
            than $1,000 nor more than $3,000; or
                (iv)  for a fourth or subsequent offense, to pay a
            fine of not less than $3,000 nor more than $5,000.
            (3)  A minor who violates subsection (a.1) shall be
        sentenced to any or all of the following:
                (i)  not more than 75 hours of community service;
                (ii)  complete a tobacco use prevention and cessation
            program approved by the Department of Health;
                (iii)  a fine not to exceed $200; or
                (iv)  a 30-day suspension of motor vehicle operating
            privileges.
        (c)  Notification.--
            (1)  Upon issuing or filing a citation charging a
        violation of subsection (a.1), the affiant shall notify the
        parent or guardian of the minor charged.
            (2)  Upon imposing a sentence under subsection (b)(1) or
        (2), a court shall notify the department of the violation
        committed by the person if the person is a retailer or an
        employee of a retailer and the person committed the violation
        in the course of the person's employment.
        (d)  Nature of offense.--
            (1)  An offense under subsection (a.1) shall not be a
        criminal offense of record, shall not be reportable as a
        criminal act and shall not be placed on the criminal record
        of the offender. The failure of a minor to comply with a
        sentence under subsection (b)(3) shall not constitute a
        delinquent act under 42 Pa.C.S. Ch. 63 (relating to juvenile
        matters).
            (2)  A record of participation in an adjudication
        alternative program under subsection (e) shall be maintained
        for purposes of determining subsequent eligibility for such a
        program.
            (3)  Except as provided in subsection (f)(1), a retailer
        is liable for the acts of its agents as permitted by section
        307 (relating to liability of organizations and certain
        related persons).
        (e)  Preadjudication disposition.--If a person is charged
     with violating this section, the court may admit the offender to
     the adjudication alternative program as authorized in 42 Pa.C.S.
     § 1520 (relating to adjudication alternative program) or any
     other preadjudication disposition if the offender has not
     previously received a preadjudication disposition for violating
     this section. Accelerated rehabilitative disposition or any
     other preadjudication alternative for a violation of subsection
     (a) shall be considered an offense for the purposes of imposing
     criminal penalties under subsection (b)(1) and (2).
        (f)  Exceptions.--
            (1)  The following affirmative defense is available:
                (i)  It is an affirmative defense for a retailer to
            an offense under subsection (a)(1) and (2) that, prior to
            the date of the alleged violation, the retailer has
            complied with all of the following:
                    (A)  adopted and implemented a written policy
                against selling tobacco products to minors which
                includes:
                        (I)  a requirement that an employee ask an
                    individual who appears to be 25 years of age or
                    younger for a valid photoidentification as proof
                    of age prior to making a sale of tobacco
                    products;
                        (II)  a list of all types of acceptable
                    photoidentification;
                        (III)  a list of factors to be examined in
                    the photoidentification, including photo
                    likeness, birth date, expiration date, bumps,
                    tears or other damage and signature;
                        (IV)  a requirement that, if the
                    photoidentification is missing any of the items
                    listed in subclause (III), it is not valid and
                    cannot be accepted as proof of age for the sale
                    of tobacco products. A second photoidentification
                    may be required to make the sale of tobacco
                    products, with questions referred to the manager;
                    and
                        (V)  a disciplinary policy which includes
                    employee counseling and suspension for failure to
                    require valid photoidentification and dismissal
                    for repeat improper sales.
                    (B)  informed all employees selling tobacco
                products through an established training program of
                the applicable Federal and State laws regarding the
                sale of tobacco products to minors;
                    (C)  documented employee training indicating that
                all employees selling tobacco products have been
                informed of and understand the written policy
                referred to in clause (A);
                    (D)  trained all employees selling tobacco
                products to verify that the purchaser is at least 18
                years of age before selling tobacco products;
                    (E)  conspicuously posted a notice that selling
                tobacco products to a minor is illegal, that the
                purchase of tobacco products by a minor is illegal
                and that a violator is subject to penalties; and
                    (F)  established and implemented disciplinary
                sanctions for noncompliance with the policy under
                clause (A).
                (ii)  An affirmative defense under this paragraph
            must be proved by a preponderance of the evidence.
                (iii)  An affirmative defense under this paragraph
            may be used by a retailer no more than three times at
            each retail location during any 24-month period.
            (2)  No more than one violation of subsection (a) per
        person arises out of separate incidents which take place in a
        24-hour period.
            (3)  It is not a violation of subsection (a.1)(1) for a
        minor to purchase or attempt to purchase a tobacco product if
        all of the following apply:
                (i)  The minor is at least 14 years of age.
                (ii)  The minor is an employee, volunteer or an
            intern with:
                    (A)  a State or local law enforcement agency;
                    (B)  the Department of Health or a primary
                contractor pursuant to Chapter 7 of the act of June
                26, 2001 (P.L.755, No.77), known as the Tobacco
                Settlement Act;
                    (C)  a single county authority created pursuant
                to the act of April 14, 1972 (P.L.221, No.63), known
                as the Pennsylvania Drug and Alcohol Abuse Control
                Act;
                    (D)  a county or municipal health department; or
                    (E)  a retailer.
                (iii)  The minor is acting within the scope of
            assigned duties as part of an authorized investigation,
            compliance check under subsection (g) or retailer-
            organized self-compliance check.
                (iv)  A minor shall not use or consume a tobacco
            product.
        (g)  Compliance checks.--This subsection shall apply to
     compliance checks conducted by the Department of Health, a
     primary contractor pursuant to Chapter 7 of the Tobacco
     Settlement Act, a single county authority created pursuant to
     the Pennsylvania Drug and Alcohol Abuse Control Act or a county
     or municipal health department for the purpose of conducting
     retailer education, assessing compliance with Federal or State
     law and enforcing the provisions of this section. Compliance
     checks shall be conducted, at a minimum, in accordance with all
     of the following:
            (1)  Compliance checks shall only be conducted in
        consultation with the Department of Health and the law
        enforcement agency providing primary police services to the
        municipality where the compliance check is being conducted.
            (2)  A minor participating in a compliance check must be
        at least 14 years of age, complete a course of training
        approved by the Department of Health and furnish the
        Department of Health with a signed, written parental consent
        agreement allowing the minor to participate in the compliance
        check.
            (3)  A retailer that is found to be in compliance with
        this section during a compliance check shall be notified in
        writing of the compliance check and the determination of
        compliance.
            (4)  Compliance checks conducted under this subsection
        shall be in a manner consistent with this subsection and the
        regulations as promulgated by the Department of Health.
            (5)  The Department of Health, a primary contractor
        pursuant to Chapter 7 of the Tobacco Settlement Act, a single
        county authority created pursuant to the Pennsylvania Drug
        and Alcohol Abuse Control Act or a county or municipal health
        department shall conduct a compliance check under this
        subsection no more than once every 30 days at any one retail
        location. This paragraph shall not preclude the law
        enforcement agency providing primary police services to the
        municipality in which the retail store is located from
        otherwise enforcing this section.
            (6)  Individuals participating in compliance checks under
        this subsection shall not be deemed employees under the act
        of July 23, 1970 (P.L.563, No.195), known as the Public
        Employe Relations Act, nor shall participating individuals be
        considered policemen under the act of June 24, 1968 (P.L.237,
        No.111), referred to as the Policemen and Firemen Collective
        Bargaining Act.
        (h)  Administrative action.--
            (1)  Upon receiving notice, in accordance with subsection
        (c) or otherwise, of a third conviction of a retailer during
        any 24-month period, the department may, after an opportunity
        for a hearing, suspend the retailer's cigarette license for
        up to 30 days. The department, in a hearing held pursuant to
        this paragraph, has jurisdiction only to determine whether or
        not the retailer was convicted of a violation of subsection
        (a). The introduction of a certified copy of a conviction for
        a violation of subsection (a) shall be sufficient evidence
        for the suspension of the cigarette license.
            (2)  Upon receiving notice, in accordance with subsection
        (c) or otherwise, of a fourth conviction of a retailer during
        any 24-month period, the department may, after an opportunity
        for a hearing, revoke the retailer's cigarette license for up
        to 60 days. The department, in a hearing held under this
        paragraph, has jurisdiction only to determine whether or not
        the retailer was convicted of a violation of subsection (a).
        The introduction of a certified copy of a conviction for a
        violation of subsection (a) shall be sufficient evidence for
        the revocation of the cigarette license.
        (i)  Enforcement.--An employee of the Department of Health, a
     single county authority created pursuant to the Pennsylvania
     Drug and Alcohol Abuse Control Act, a county or municipal health
     department or a primary contractor pursuant to Chapter 7 of the
     Tobacco Settlement Act may institute a proceeding to enforce the
     provisions of this section in accordance with any means
     authorized by the Rules of Criminal Procedure. The enforcement
     authority granted pursuant to this subsection may not be
     delegated.
        (j)  Other penalties.--Notwithstanding any other law to the
     contrary, prosecution or conviction under this section shall not
     constitute a bar to any prosecution, penalty or administrative
     action under any other applicable statutory provision.
        (k)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Cigarette."  A roll for smoking made wholly or in part of
     tobacco, irrespective of size or shape and whether or not the
     tobacco is flavored, adulterated or mixed with any other
     ingredient, the wrapper or cover of which is made of paper or
     other substance or material except tobacco. The term does not
     include a cigar.
        "Cigarette license."  A license issued under section 203-A or
     213-A of the act of April 9, 1929 (P.L.343, No.176), known as
     The Fiscal Code.
        "Department."  The Department of Revenue of the Commonwealth.
        "Minor."  An individual under 18 years of age.
        "Pack of cigarettes."  As defined in section 1201 of the act
     of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of
     1971.
        "Pipe tobacco."  Any product containing tobacco made
     primarily for individual consumption that is intended to be
     smoked using tobacco paraphernalia.
        "Retailer."  A person licensed under section 203-A or 213-A
     of the act of April 9, 1929 (P.L.343, No.176), known as The
     Fiscal Code.
        "Smokeless tobacco."  Any product containing finely cut,
     ground, powdered, blended or leaf tobacco made primarily for
     individual consumption that is intended to be placed in the oral
     or nasal cavity and not intended to be smoked. The term
     includes, but is not limited to, chewing tobacco, dipping
     tobacco and snuff.
        "Tobacco product."  A cigarette, cigar, pipe tobacco or other
     smoking tobacco product or smokeless tobacco in any form,
     manufactured for the purpose of consumption by a purchaser, and
     any cigarette paper or product used for smoking tobacco.
        "Tobacco vending machine."  A mechanical or electrical device
     from which one or more tobacco products are dispensed for a
     consideration.
     (Feb. 14, 1990, P.L.54, No.7, eff. imd.; July 10, 2002, P.L.789,
     No.112, eff. 30 days)

        2002 Amendment.  Section 4 of Act 112 provided that Act 112
     shall apply to offenses committed on or after the effective date
     of Act 112.
        Cross References.  Section 6305 is referred to in section 301
     of Title 53 (Municipalities Generally).