2006 Code of Virginia § 18.2-371.2 - Prohibiting purchase or possession of tobacco products by minors or sale of tobacco products to min...

18.2-371.2. Prohibiting purchase or possession of tobacco products byminors or sale of tobacco products to minors.

A. No person shall sell to, distribute to, purchase for or knowingly permitthe purchase by any person less than 18 years of age, knowing or havingreason to believe that such person is less than 18 years of age, any tobaccoproduct, including but not limited to cigarettes, cigars, bidis, andwrappings.

Tobacco products may be sold from a vending machine only if the machine is(i) posted with a notice, in a conspicuous manner and place, indicating thatthe purchase or possession of tobacco products by minors is unlawful and (ii)located in a place which is not open to the general public and is notgenerally accessible to minors. An establishment which prohibits the presenceof minors unless accompanied by an adult is not open to the general public.

B. No person less than 18 years of age shall attempt to purchase, purchase orpossess any tobacco product, including but not limited to cigarettes, cigars,bidis, and wrappings. The provisions of this subsection shall not beapplicable to the possession of tobacco products, including wrappings, by aperson less than 18 years of age making a delivery of tobacco products,including wrappings, in pursuance of his employment. This subsection shallnot apply to purchase, attempt to purchase or possession by a law-enforcementofficer or his agent when the same is necessary in the performance of hisduties.

C. No person shall sell a tobacco product, including but not limited tocigarettes, cigars, bidis, and wrappings, to any individual who does notdemonstrate, by producing a driver's license or similar photo identificationissued by a government agency, that the individual is at least 18 years ofage. Such identification is not required from an individual whom the personhas reason to believe is at least 18 years of age or who the person knows isat least 18 years of age. Proof that the person demanded, was shown, andreasonably relied upon a photo identification stating that the individual wasat least 18 years of age shall be a defense to any action brought under thissubsection. In determining whether a person had reason to believe anindividual is at least 18 years of age, the trier of fact may consider, butis not limited to, proof of the general appearance, facial characteristics,behavior and manner of the individual.

This subsection shall not apply to mail order sales.

D. A violation of subsection A or C by an individual or by a separate retailestablishment that involves a tobacco product other than a bidi shall bepunishable by a civil penalty not to exceed $100 for a first violation, acivil penalty not to exceed $200 for a second violation, and a civil penaltynot to exceed $500 for a third or subsequent violation.

A violation of subsection A or C by an individual or by a separate retailestablishment that involves the sale, distribution or purchase of a bidishall be punishable by a civil penalty in the amount of $500 for a firstviolation, a civil penalty in the amount of $1,000 for a second violation,and a civil penalty in the amount of $2,500 for a third or subsequentviolation. Where a defendant retail establishment offers proof that it hastrained its employees concerning the requirements of this section, the courtshall suspend all of the penalties imposed hereunder. However, where thecourt finds that a retail establishment has failed to so train its employees,the court may impose a civil penalty not to exceed $1,000 in lieu of anypenalties imposed hereunder for a violation of subsection A or C involving atobacco product other than a bidi.

A violation of subsection B shall be punishable by a civil penalty not toexceed $100 for a first violation and a civil penalty not to exceed $250 fora second or subsequent violation. A court may, as an alternative to the civilpenalty, and upon motion of the defendant, prescribe the performance of up to20 hours of community service for a first violation of subsection B and up to40 hours of community service for a second or subsequent violation. If thedefendant fails or refuses to complete the community service as prescribed,the court may impose the civil penalty. Upon a violation of subsection B, thejudge may enter an order pursuant to subdivision A 9 of 16.1-278.8.

Any attorney for the Commonwealth of the county or city in which an allegedviolation occurred may bring an action to recover the civil penalty, whichshall be paid into the state treasury. Any law-enforcement officer may issuea summons for a violation of subsection A, B, or C.

E. 1. Cigarettes shall be sold only in sealed packages provided by themanufacturer, with the required health warning. The proprietor of everyretail establishment which offers for sale any tobacco product, including butnot limited to cigarettes, cigars, and bidis, shall post in a conspicuousmanner and place a sign or signs indicating that the sale of tobaccoproducts, including wrappings, to any person under 18 years of age isprohibited by law. Any attorney for the county, city or town in which analleged violation of this subsection occurred may enforce this subsection bycivil action to recover a civil penalty not to exceed $50. The civil penaltyshall be paid into the local treasury. No filing fee or other fee or costshall be charged to the county, city or town which instituted the action.

2. For the purpose of compliance with regulations of the Substance Abuse andMental Health Services Administration published at 61 Federal Register 1492,the Department of Agriculture and Consumer Services may promulgateregulations which allow the Department to undertake the activities necessaryto comply with such regulations.

3. Any attorney for the county, city or town in which an alleged violation ofthis subsection occurred may enforce this subsection by civil action torecover a civil penalty not to exceed $100. The civil penalty shall be paidinto the local treasury. No filing fee or other fee or cost shall be chargedto the county, city or town which instituted the action.

F. Nothing in this section shall be construed to create a private cause ofaction.

G. Agents of the Virginia Alcoholic Beverage Control Board designatedpursuant to 4.1-105 may issue a summons for any violation of this section.

H. As used in this section:

"Bidi" means a product containing tobacco that is wrapped in temburni leaf(diospyros melanoxylon) or tendu leaf (diospyros exculpra), or any otherproduct that is offered to, or purchased by, consumers as a bidi or beedie;and

"Wrappings" includes papers made or sold for covering or rolling tobacco orother materials for smoking in a manner similar to a cigarette or cigar.

(1986, c. 406; 1991, c. 558; 1993, c. 631; 1994, c. 305; 1995, c. 675; 1996,cc. 509, 517; 1997, cc. 812, 882; 1998, c. 363; 1999, c. 1020; 2000, c. 883;2003, cc. 114, 615.)

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