HB0235 100TH GENERAL ASSEMBLY

LRB100 04161 HLH 14167 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB0235

Introduced , by Rep. La Shawn K. Ford

SYNOPSIS AS INTRODUCED:

35 ILCS 130/24	from Ch. 120, par. 453.24
35 ILCS 135/30	from Ch. 120, par. 453.60
720 ILCS 675/2	from Ch. 23, par. 2358

Amends the Prevention of Tobacco Use by Minors and Sale and Distribution of Tobacco Products Act. Provides that a violation of the Act involving the sale or distribution of single or loose cigarettes that are not contained within a sealed container, pack, or package to persons who are 18 years of age or older is a petty offense punishable by a fine of not more than $50, which may be satisfied without a court appearance by a written plea of guilty and payment of all applicable fines, penalties, and costs. Amends the Cigarette Tax Act and the Cigarette Use Tax Act to provide that those violations shall be subject only to the penalties provided in the Prevention of Tobacco Use by Minors and Sale and Distribution of Tobacco Products Act.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Cigarette Tax Act is amended by changing Section 24 as follows:

(35 ILCS 130/24) (from Ch. 120, par. 453.24)

Sec. 24. Punishment for sale or possession of packages of contraband cigarettes.

(a) Possession or sale of 100 or less packages of contraband cigarettes. With the exception of licensed distributors, licensed secondary distributors, or licensed transporters, as defined in Section 9c of this Act, any person who has in his or her possession or sells 100 or less original packages of contraband cigarettes is guilty of a Class A misdemeanor and a Class 4 felony for each subsequent offense occurring within 12 months of a prior offense.

(b) Possession or sale of more than 100 but less than 251 packages of contraband cigarettes. With the exception of licensed distributors, licensed secondary distributors, or licensed transporters, as defined in Section 9c of this Act, any person who has in his or her possession or sells more than 100 but less than 251 original packages of contraband cigarettes is guilty of a Class A misdemeanor for a first offense and a Class 4 felony for each subsequent offense.

(c) Possession or sale of more than 250 but less than 1,001 packages of contraband cigarettes. With the exception of licensed distributors, licensed secondary distributors, or licensed transporters, as defined in Section 9c of this Act, any person who has in his or her possession or sells more than 250 but less than 1,001 original packages of contraband cigarettes is guilty of a Class 4 felony.

(d) Possession or sale of more than 1,000 packages of contraband cigarettes. With the exception of licensed distributors, licensed secondary distributors, or licensed transporters, as defined in Section 9c of this Act, any person who has in his or her possession or sells more than 1,000 original packages of contraband cigarettes is guilty of a Class 3 felony.

(e) Any person licensed as a distributor, secondary distributor, or transporter, as defined in Section 9c of this Act, who has in his or her possession or sells 100 or less original packages of contraband cigarettes is guilty of a Class A misdemeanor and a Class 4 felony for each subsequent offense occurring within 12 months of a prior offense.

(f) Any person licensed as a distributor, secondary distributor, or transporter, as defined in Section 9c of this Act, who has in his or her possession or sells more than 100 original packages of contraband cigarettes is guilty of a Class 4 felony.

(g) Notwithstanding subsections (e) through (f), licensed distributors and transporters, as defined in Section 9c of this Act, may possess unstamped packages of cigarettes. Notwithstanding subsections (e) through (f), licensed distributors may possess cigarettes that bear a tax stamp of another state or taxing jurisdiction. Notwithstanding subsections (e) through (f), a licensed distributor or licensed secondary distributor may possess contraband cigarettes returned to the distributor or licensed secondary distributor by a retailer if the distributor or licensed secondary distributor immediately conducts an inventory of the cigarettes being returned, the distributor or licensed secondary distributor and the retailer returning the contraband cigarettes sign the inventory, the distributor or licensed secondary distributor provides a copy of the signed inventory to the retailer, and the distributor retains the inventory in its books and records and promptly notifies the Department of Revenue.

(h) Notwithstanding subsections (a) through (d) of this Section, a retailer unknowingly possessing contraband cigarettes obtained from a licensed distributor or licensed secondary distributor or knowingly possessing contraband cigarettes obtained from a licensed distributor is not subject to penalties under this Section if the retailer, within 48 hours after discovering that the cigarettes are contraband cigarettes, excluding Saturdays, Sundays, and holidays: (i) notifies the Department and the licensed distributor or licensed secondary distributor from whom the cigarettes were obtained, orally and in writing, that he or she possesses contraband cigarettes obtained from a licensed distributor or licensed secondary distributor; (ii) places the contraband cigarettes in one or more containers and seals those containers; and (iii) places on the containers the following or similar language: "Contraband Cigarettes. Not For Sale." All contraband cigarettes in the possession of a retailer remain subject to forfeiture under the provisions of this Act.

Any retailer who knowingly possesses packages of cigarettes with a counterfeit stamp with intent to sell is guilty of a Class 2 felony. Any retailer who knowingly possesses unstamped packages of cigarettes with intent to sell is guilty of a Class 4 felony. A retailer shall not be liable for unknowingly possessing, selling, or distributing to consumers cigarettes that contain an old stamp if the correct tax was collected at the point of sale and the cigarettes were obtained from a distributor licensed under this Act.

(i) Notwithstanding any other provision of law, violations of subsection (d) of Section 1 of the Prevention of Tobacco Use by Minors and Sale and Distribution of Tobacco Products Act, other than violations involving the sale or distribution of a tobacco product to a minor under the age of 18, shall be subject only to the penalties provided in subsection (g-5) of Section 2 of that Act.

(Source: P.A. 98-1055, eff. 1-1-16.)

Section 10. The Cigarette Use Tax Act is amended by changing Section 30 as follows:

(35 ILCS 135/30) (from Ch. 120, par. 453.60)

Sec. 30. Punishment for sale or possession of unstamped packages of cigarettes, other than by a licensed distributor or transporter.

(a) Possession or sale of more than 9 but less than 101 unstamped packages of cigarettes. With the exception of licensed distributors, licensed secondary distributors, or licensed transporters, as defined in Section 9c of the Cigarette Tax Act, any person who has in his or her possession or sells more than 9 but less than 101 original packages of contraband cigarettes is guilty of a Class A misdemeanor and a Class 4 felony for each subsequent offense occurring within 12 months of a prior offense.

(b) Possession or sale of more than 100 but less than 251 unstamped packages of cigarettes. With the exception of licensed distributors, licensed secondary distributors, or licensed transporters, as defined in Section 9c of the Cigarette Tax Act, any person who has in his or her possession or sells more than 100 but less than 251 original packages of contraband cigarettes is guilty of a Class A misdemeanor for the first offense and a Class 4 felony for each subsequent offense.

(c) Possession or sale of more than 250 but less than 1,001 unstamped packages of cigarettes. With the exception of licensed distributors, licensed secondary distributors, or licensed transporters, as defined in Section 9c of the Cigarette Tax Act, any person who has in his or her possession or sells more than 250 but less than 1,001 original packages of contraband cigarettes is guilty of a Class 4 felony.

(d) Possession or sale of more than 1,000 contraband packages of cigarettes. With the exception of licensed distributors, licensed secondary distributors, or licensed transporters, as defined in Section 9c of the Cigarette Tax Act, any person who has in his or her possession or sells, more than 1,000 original packages of contraband cigarettes is guilty of a Class 3 felony.

(e) Any person licensed as a distributor, secondary distributor, or transporter, as defined in Section 9c of the Cigarette Tax Act, who has in his or her possession or sells 100 or less original packages of contraband cigarettes is guilty of a Class A misdemeanor and a Class 4 felony for each subsequent offense occurring within 12 months of a prior offense.

(f) Any person licensed as a distributor, secondary distributor, or transporter, as defined in Section 9c of the Cigarette Tax Act, who has in his or her possession or sells more than 100 original packages of contraband cigarettes is guilty of a Class 4 felony.

(g) Notwithstanding subsections (e) through (f), licensed distributors and transporters, as defined in Section 9c of the Cigarette Tax Act, may possess unstamped packages of cigarettes. Notwithstanding subsections (e) through (f), licensed distributors may possess cigarettes that bear a tax stamp of another state or taxing jurisdiction. Notwithstanding subsections (e) through (f), a licensed distributor or licensed secondary distributor may possess contraband cigarettes returned to the distributor or licensed secondary distributor by a retailer if the distributor or licensed secondary distributor immediately conducts an inventory of the cigarettes being returned, the distributor or licensed secondary distributor and the retailer returning the contraband cigarettes sign the inventory, the distributor or licensed secondary distributor provides a copy of the signed inventory to the retailer, and the distributor or licensed secondary distributor retains the inventory in its books and records and promptly notifies the Department of Revenue.

(h) Notwithstanding subsections (a) through (d) of this Section, a retailer unknowingly possessing contraband cigarettes obtained from a licensed distributor or licensed secondary distributor or knowingly possessing contraband cigarettes obtained from a licensed distributor or licensed secondary distributor is not subject to penalties under this Section if the retailer, within 48 hours after discovering that the cigarettes are contraband cigarettes, excluding Saturdays, Sundays, and holidays: (i) notifies the Department and the licensed distributor or licensed secondary distributor from whom the cigarettes were obtained, orally and in writing, that he or she possesses contraband cigarettes obtained from a licensed distributor or licensed secondary distributor; (ii) places the contraband cigarettes in one or more containers and seals those containers; and (iii) places on the containers the following or similar language: "Contraband Cigarettes. Not For Sale." All contraband cigarettes in the possession of a retailer remain subject to forfeiture under the provisions of this Act.

Any retailer who knowingly possesses packages of cigarettes with a counterfeit stamp with intent to sell is guilty of a Class 2 felony. Any retailer who knowingly possesses unstamped packages of cigarettes with intent to sell is guilty of a Class 4 felony. A retailer shall not be liable for unknowingly possessing, selling, or distributing to consumers cigarettes that contain an old stamp if the correct tax was collected at the point of sale and the cigarettes were obtained from a distributor licensed under this Act.

(i) Notwithstanding any other provision of law, violations of subsection (d) of Section 1 of the Prevention of Tobacco Use by Minors and Sale and Distribution of Tobacco Products Act, other than violations involving the sale or distribution of a tobacco product to a minor under the age of 18, shall be subject only to the penalties provided in subsection (g-5) of Section 2 of that Act.

(Source: P.A. 98-1055, eff. 1-1-16.)

Section 15. The Prevention of Tobacco Use by Minors and Sale and Distribution of Tobacco Products Act is amended by changing Section 2 as follows:

(720 ILCS 675/2) (from Ch. 23, par. 2358)

Sec. 2. Penalties.

(a) Any person who violates subsection (a) or (a-5) of Section 1 or subsection (b) or (c) of Section 1.5 of this Act is guilty of a petty offense. For the first offense in a 24-month period, the person shall be fined $200 if his or her employer has a training program that facilitates compliance with minimum-age tobacco laws. For the second offense in a 24-month period, the person shall be fined $400 if his or her employer has a training program that facilitates compliance with minimum-age tobacco laws. For the third offense in a 24-month period, the person shall be fined $600 if his or her employer has a training program that facilitates compliance with minimum-age tobacco laws. For the fourth or subsequent offense in a 24-month period, the person shall be fined $800 if his or her employer has a training program that facilitates compliance with minimum-age tobacco laws. For the purposes of this subsection, the 24-month period shall begin with the person's first violation of the Act. The penalties in this subsection are in addition to any other penalties prescribed under the Cigarette Tax Act and the Tobacco Products Tax Act of 1995.

(a-5) Any retailer who violates subsection (a) or (a-5) of Section 1 or subsection (b) or (c) of Section 1.5 of this Act is guilty of a petty offense. For the first offense, the retailer shall be fined $200 if it does not have a training program that facilitates compliance with minimum-age tobacco laws. For the second offense, the retailer shall be fined $400 if it does not have a training program that facilitates compliance with minimum-age tobacco laws. For the third offense, the retailer shall be fined $600 if it does not have a training program that facilitates compliance with minimum-age tobacco laws. For the fourth or subsequent offense in a 24-month period, the retailer shall be fined $800 if it does not have a training program that facilitates compliance with minimum-age tobacco laws. For the purposes of this subsection, the 24-month period shall begin with the person's first violation of the Act. The penalties in this subsection are in addition to any other penalties prescribed under the Cigarette Tax Act and the Tobacco Products Tax Act of 1995.

(a-6) For the purpose of this Act, a training program that facilitates compliance with minimum-age tobacco laws must include at least the following elements: (i) it must explain that only individuals displaying valid identification demonstrating that they are 18 years of age or older shall be eligible to purchase cigarettes or tobacco products and (ii) it must explain where a clerk can check identification for a date of birth. The training may be conducted electronically. Each retailer that has a training program shall require each employee who completes the training program to sign a form attesting that the employee has received and completed tobacco training. The form shall be kept in the employee's file and may be used to provide proof of training.

(b) If a minor violates subsection (a-7) of Section 1 or subsection (d) of Section 1.5, he or she is guilty of a petty offense and the court may impose a sentence of 25 hours of community service and a fine of $50 for a first violation. If a minor violates subsection (a-6) of Section 1, he or she is guilty of a Class A misdemeanor.

(c) A second violation by a minor of subsection (a-7) of Section 1 or subsection (d) of Section 1.5 that occurs within 12 months after the first violation is punishable by a fine of $75 and 50 hours of community service.

(d) A third or subsequent violation by a minor of subsection (a-7) of Section 1 or subsection (d) of Section 1.5 that occurs within 12 months after the first violation is punishable by a $200 fine and 50 hours of community service.

(e) Any second or subsequent violation not within the 12-month time period after the first violation is punishable as provided for a first violation.

(f) If a minor is convicted of or placed on supervision for a violation of subsection (a-6) or (a-7) of Section 1 or subsection (d) of Section 1.5, the court may, in its discretion, and upon recommendation by the State's Attorney, order that minor and his or her parents or legal guardian to attend a smoker's education or youth diversion program if that program is available in the jurisdiction where the offender resides. Attendance at a smoker's education or youth diversion program shall be time-credited against any community service time imposed for any first violation of subsection (a-7) of Section 1. In addition to any other penalty that the court may impose for a violation of subsection (a-7) of Section 1 or subsection (d) of Section 1.5, the court, upon request by the State's Attorney, may in its discretion require the offender to remit a fee for his or her attendance at a smoker's education or youth diversion program.

(g) For purposes of this Section, "smoker's education program" or "youth diversion program" includes, but is not limited to, a seminar designed to educate a person on the physical and psychological effects of smoking tobacco products and alternative nicotine products and the health consequences of smoking tobacco products and alternative nicotine products that can be conducted with a locality's youth diversion program.

(g-5) A violation of subsection (d) of Section 1 of this Act, other than a violation involving the sale or distribution of a tobacco product to a minor under the age of 18, is a petty offense punishable by a fine of not more than $50 for each violation. Such a violation may be satisfied without a court appearance by a written plea of guilty and payment of all applicable fines, penalties, and costs.

(h) All moneys collected as fines for violations of subsection (a), (a-5), (a-6), or (a-7) of Section 1 and subsection (b), (c), or (d) of Section 1.5 shall be distributed in the following manner:

(1) one-half of each fine shall be distributed to the unit of local government or other entity that successfully prosecuted the offender; and

(2) one-half shall be remitted to the State to be used for enforcing this Act.

Any violation of subsection (a) or (a-5) of Section 1 or subsection (b) or (c) of Section 1.5 shall be reported to the Department of Revenue within 7 business days.

(Source: P.A. 98-350, eff. 1-1-14; 98-1055, eff. 1-1-16; 99-192, eff. 1-1-16; 99-496, eff. 6-1-16; revised 9-14-16.)