[ Search ] [ Legislation ]
[ Home ] [ Back ] [ Bottom ]
91_SB0779
LRB9105934RCdv
1 AN ACT to prevent juvenile access to and use of tobacco
2 products, to provide a regulatory scheme for that purpose,
3 and to amend and repeal named Acts.
4 Be it enacted by the People of the State of Illinois,
5 represented in the General Assembly:
6 Section 1. Short Title. This Act may be cited as the
7 Juvenile Tobacco Access Prevention Act.
8 Section 5. Policy Statement. The General Assembly finds
9 and declares that the threat posed to the health of the
10 children of this State by use or ingestion of tobacco
11 products must be addressed on a comprehensive basis, and
12 that laws establishing minimum standards applicable
13 statewide are the best approach to the restriction of access
14 to tobacco products. The purpose of this Act is to create
15 and facilitate an intergovernmental approach, coordinated
16 and funded through an Enforcement Agency with statewide
17 responsibilities, and implemented with and through the
18 participation of local government. The General Assembly
19 recognizes the crucial and indispensable role to be
20 undertaken in the implementation and enforcement of this Act
21 by units of local government, and particularly by local law
22 enforcement, and that local officials bear primary
23 responsibilities in the enforcement of the criminal
24 penalties established in this Act.
25 Section 10. Definitions. In this Act:
26 "Distribute" means to give, deliver, sell, offer to give,
27 deliver, sell, or cause or hire any person to give, deliver,
28 or sell, or offer to give, deliver, or sell.
29 "Enforcement Agency" means the Illinois Liquor Control
30 Commission.
-2- LRB9105934RCdv
1 "Health warning" means any tobacco product label mandated
2 by federal law and intended to alert all users of such
3 tobacco product to the health risks associated with tobacco
4 use, including but not limited to warning labels imposed
5 under the Federal Cigarette Labeling and Advertising Act of
6 1965 and the Comprehensive Smokeless Tobacco Education Act
7 of 1986.
8 "Licensee" means any person obtaining a tobacco seller's
9 license under this Act.
10 "Person" means any natural person, company, corporation,
11 firm, partnership, organization, or other legal entity.
12 "Photographic identification" means any officially issued
13 card that includes a photograph of the person seeking to
14 purchase tobacco products and that is accepted as proof of
15 age under State law.
16 "Point of sale" means a store, stand, vending machine or
17 any other separate place of business or point of
18 distribution maintained by a seller from which tobacco
19 products are made available for sale or distribution to
20 consumers. Point of sale does not include separate cash
21 registers or service counters within a store or other place
22 of business.
23 "Seller" means any natural person, company, corporation,
24 firm, partnership, organization, or other legal entity, who
25 sells, dispenses, distributes, or issues tobacco products for
26 commercial purposes.
27 "Tobacco product" means any substance that contains
28 tobacco, including but not limited to cigarettes, cigars,
29 pipes, snuff, smoking tobacco, or smokeless tobacco.
30 Section 15. Prohibition of the sale or transfer of
31 tobacco products to persons under 18 years of age.
32 (a) No person shall sell, buy for, distribute samples
33 of, or otherwise distribute any tobacco product to any
-3- LRB9105934RCdv
1 person under 18 years of age.
2 (b) No person shall sell, buy for, distribute samples
3 of, or otherwise distribute any cigarette papers, or any
4 other instrument or paraphernalia that is designed for the
5 smoking or ingestion of any tobacco product, to any person
6 under 18 years of age.
7 (c) It shall be an affirmative defense that the seller
8 of a tobacco product, or other prohibited item, to a person
9 under 18 years of age in violation of this Section had
10 requested and examined a government-issued photographic
11 identification from such person establishing that person's
12 age to be at least 18 prior to selling that person a tobacco
13 product. The failure of the seller to request and examine
14 photographic identification from a person under 18 years of
15 age prior to the sale of a tobacco product, or other
16 prohibited item, to that person shall be construed against
17 the seller and form a conclusive basis for the seller's
18 violation of this Section.
19 (d) Violations and penalties. (1) Any person who
20 violates this Section is guilty of a petty offense and shall
21 be liable for a mandatory fine of $200 for the first
22 violation, a mandatory fine of $400 for a second violation
23 occurring after conviction for a first violation and a
24 mandatory fine of $600 for a third or subsequent violation
25 occurring after conviction for a second violation. In
26 addition, convictions of licensees or employees or agents of
27 licensees under this Section shall result in administrative
28 action against the licensee and license in accordance with
29 rules and regulations adopted by the Enforcement Agency
30 under Section 35 of this Act.
31 (e) The Enforcement Agency shall conduct random,
32 unannounced inspections of retail outlets to monitor
33 compliance with this Act, and may designate local
34 governmental and other appropriate agencies to assist it
-4- LRB9105934RCdv
1 with this function and otherwise in the enforcement of this
2 Act. It shall not be considered a violation of this Section
3 for the Enforcement Agency or a designee, or a local law
4 enforcement agency, to use persons under 18 years of age to
5 purchase or attempt to purchase tobacco products for the
6 purpose of monitoring compliance with this Section, if those
7 persons are supervised by duly authorized Enforcement Agency
8 or designee personnel, or by the personnel of a local law
9 enforcement agency, and the consent of a parent or guardian
10 is obtained. Nothing in this subsection shall be construed
11 to preclude local law enforcement agencies from conducting
12 independent inspections to monitor compliance with this Act.
13 (f) The Enforcement Agency shall prepare a report on
14 enforcement efforts undertaken pursuant to this Act. The
15 report shall include the number of unannounced inspections
16 conducted by the Agency, a summary of enforcement actions
17 taken under this Act, and an assessment of the progress made
18 in the previous fiscal year in reducing the availability of
19 tobacco products to persons under 18 years of age. The
20 Enforcement Agency shall transmit the report annually, on or
21 before January 1, to the Illinois General Assembly committees
22 having cognizance of matters relating to public health and
23 to children, to the Illinois Department of Public Health,
24 and to the State agency designated as being responsible for
25 reducing the rate at which tobacco products are being sold
26 to persons under 18 years of age.
27 Section 20. Juvenile purchase, possession, and
28 consumption of tobacco.
29 (a) No person under 18 years of age shall purchase,
30 possess, or use any tobacco product.
31 (b) Any person under 18 years of age who violates this
32 Section is guilty of a petty offense, and shall be punished
33 by a fine not to exceed $25 for a first offense, $50 for a
-5- LRB9105934RCdv
1 second offense and $100 for a third or subsequent offense.
2 Persons convicted under this Section may be required to
3 complete up to 100 hours of community service. Where such
4 programs are available, disposition may also include a
5 requirement for participation in an educational program
6 addressing the risks of tobacco consumption. It shall not
7 be considered a violation of this Section for persons under
8 18 years of age to purchase or possess tobacco products
9 while participating in a program for monitoring compliance
10 with this Section conducted by the Enforcement Agency or a
11 designee, or a local law enforcement agency, as long as
12 those persons are supervised by duly authorized Enforcement
13 Agency or designee personnel, or by the personnel of a local
14 law enforcement agency, and the consent of a parent or
15 guardian is obtained.
16 (c) Law enforcement agencies, acting in conjunction with
17 the State's Attorney of the county in which they function,
18 may establish and implement alternative programs for
19 enforcing this Section. Such programs, which shall be
20 voluntary, may include, but are not limited to the use of
21 peer courts or teen courts, and the prescription of
22 educational or community service activities.
23 Section 25. Juvenile misrepresentation of age.
24 (a) No person under 18 years of age shall falsely
25 represent his or her age through the presentation of a false
26 or altered form of identification or by any other means, for
27 the purpose of purchasing tobacco products.
28 (b) Any person under 18 years of age who violates this
29 Section is guilty of a Class A misdemeanor, and shall be
30 required to complete up to 100 hours of community service.
31 Where those programs are available, disposition may also
32 include a requirement for participation in an educational
33 program addressing the risks of tobacco consumption.
-6- LRB9105934RCdv
1 Section 30. Licensing of tobacco product retailers.
2 (a) No person shall sell tobacco products, offer tobacco
3 products for sale at retail, or keep tobacco products with
4 the intention of selling at retail without having first
5 obtained a tobacco seller's license from the Enforcement
6 Agency.
7 (b) A separate license must be obtained for each point
8 of sale maintained by the seller within the State of
9 Illinois.
10 (c) The tobacco seller's license shall be displayed
11 prominently at the point of sale for which it is issued.
12 (d) Any person selling, offering or keeping tobacco
13 products in violation of this Section is guilty of a
14 Business Offense, for which a mandatory $1000 fine shall be
15 imposed. A person convicted of a second or subsequent
16 violation is guilty of a Class 4 felony. No person
17 convicted under this Section shall be eligible to apply for
18 a license for a period of at least one year following the
19 date of conviction.
20 (e) The annual fee for the license required in this
21 Section shall be $100 per point of sale.
22 Section 35. Enforcement Agency rule making authority.
23 (a) The Enforcement Agency shall promulgate reasonable
24 rules and regulations consistent with this Act to provide
25 for the implementation and administration of this Act.
26 (b) The rules and regulations of the Enforcement Agency
27 shall establish procedures for administrative action against
28 a licensee when a violation or violations of Sections 15 and
29 50 of this Act occur at a point of sale operated under a
30 license, and for a method of administrative adjudication of
31 the violation or violations. Penalties imposed shall
32 include the following: (1) for a first violation committed
33 by a licensee or the employee or agent of a licensee, an
-7- LRB9105934RCdv
1 administrative penalty of $500; (2) for a second violation,
2 occurring after conviction for a first violation and within
3 a 12-month period, suspension of the license for up to 6
4 months; and (3) for a third violation occurring after
5 conviction for a second violation and within a 12-month
6 period, revocation of the license. In the event of a
7 revocation, the licensee shall be ineligible to reapply for
8 a license for a period of at least one year from the date of
9 revocation. For purposes of this Section, the terms
10 "violation" and "conviction" shall include determinations
11 made under the administrative adjudication procedures
12 required by this Section, in addition to determinations
13 resulting from criminal prosecutions under Sections 15 and
14 50.
15 (c) The rules and regulations promulgated by the
16 Enforcement Agency shall authorize the waiver of suspension
17 or revocation otherwise mandated by this Act, at the
18 discretion of the Enforcement Agency, upon a showing of due
19 diligence. A due diligence waiver shall be granted only
20 when it is clearly established that the licensee's conduct
21 in no way contributed to the violation, and that the
22 licensee took all reasonable steps to ensure that the
23 licensee's employees were fully aware of the provisions of
24 this Act and of the licensee's commitment to strict
25 compliance. In determining whether to waive suspension or
26 revocation, based upon a licensee's due diligence, the
27 Enforcement Agency may consider the following:
28 (1) Whether the licensee required each employee, as part
29 of the application for employment process, to read this Act
30 or a summary of it and sign a covenant that the employee
31 understands and will comply with the Act;
32 (2) Whether the licensee provided verbal instructions to
33 each employee and required the employee to sign a covenant
34 that verbal instructions have been received and understood;
-8- LRB9105934RCdv
1 and
2 (3) Whether the licensee provided each employee with a
3 written list of the types of identification, as established
4 in the rules of the Enforcement Agency, that are acceptable
5 to establish legal age;
6 (4) Whether the licensee conspicuously posted and
7 reasonably maintained appropriate signs in areas frequented
8 by employees, such as near time cards or in lunchrooms,
9 reminding them of this Act and the sanctions provided under
10 it;
11 (5) Whether the licensee conspicuously posted and
12 reasonably maintained appropriate signs on or near cash
13 registers or comparable areas reminding employees to check
14 identification before selling tobacco products if in any
15 doubt as to the customer's age; and
16 (6) Whether the licensee conspicuously posted and
17 reasonably maintained point of sale warning signs required
18 under Section 40 of this Act, as well as appropriate signs
19 notifying customers that photographic identification is
20 required to purchase tobacco products.
21 Section 40. Mandated point of sale warning signs.
22 (a) Each seller shall place, and maintain in legible
23 condition, at each point of sale of tobacco products to
24 consumers, including the front of each vending machine, and
25 each restricted cigarette vending machine, a sign stating
26 (1) that the distribution, through sale, gift or other means
27 of delivery, of tobacco products to any person under 18
28 years of age is prohibited by Section 15 of this Act, (2)
29 the purchase, possession or consumption of tobacco products
30 by a person under 18 years of age is prohibited by Section
31 20 of this Act, (3) the misrepresentation of age by a person
32 under 18 years of age to purchase tobacco products is
33 prohibited by Section 5 of this Act and (4) the penalties
-9- LRB9105934RCdv
1 and fines for violating Sections 15, 20 and 25 of this Act.
2 (b) Any person who fails to place and maintain the sign
3 required by this Section is guilty of a Business Offense and
4 shall be fined not more than $500.
5 Section 45. Restrictions on vending machines. Tobacco
6 products may be sold through vending machines only in the
7 following locations: (1) Factories, businesses, offices,
8 private clubs, and other places not open to the general
9 public; (2) Places to which persons under 18 years of age
10 are not permitted access; (3) Places where alcoholic
11 beverages are sold and consumed on the premises; and (4)
12 Places where the vending machine can only be operated by the
13 owner or an employee over age 18 either directly or through
14 a remote control device if the device is inaccessible to all
15 customers.
16 Section 50. Prohibition on the distribution of tobacco
17 products other than in sealed packages.
18 (a) No person shall distribute tobacco products for
19 commercial purposes other than in a sealed package provided
20 by the manufacturer with the required health warning, or
21 distribute cigarettes, even if sealed and including the
22 required health warning, in packages of less than 20. This
23 subsection does not apply to cigars.
24 (b) Violations and penalties. Any person who violates
25 this Section is guilty of a petty offense and shall be
26 liable for a mandatory fine of $500 for the first violation,
27 and a mandatory fine of $1,000 for a second or subsequent
28 violation. In addition, convictions of licensees or
29 employees or agents or licensees under this Section shall
30 result in administrative action against the licensee and
31 license in accordance with rules and regulations adopted by
32 the Enforcement Agency under Section 35 of this Act.
-10- LRB9105934RCdv
1 Section 55. Transfers of tobacco products from
2 distributors or wholesalers to retailers.
3 (a) No distributor or wholesaler of tobacco products
4 shall sell, distribute, deliver, or in any other manner
5 transfer any tobacco products for sale at retail, to any
6 person not possessing a valid tobacco seller's license,
7 pertaining to the point of sale for which the tobacco
8 products are intended.
9 (b) Any distributor or wholesaler who violates this
10 Section is guilty of a Business Offense, for which a fine of
11 up to $5,000 may be imposed, for a first offense. For a
12 second offense, the distributor or wholesaler is guilty of a
13 Class 4 felony, and shall become ineligible to hold a
14 tobacco distributor's license.
15 Section 60. Tobacco Regulation Fund. All fees collected
16 for licenses and all fines or penalties imposed for
17 violation of this Act shall be deposited in the Tobacco
18 Regulation Fund in the State Treasury which is created, and
19 shall be appropriated therefrom to the Enforcement Agency
20 for the administration and enforcement of this Act. 50% of
21 the monies in the Fund shall be allocated by the Enforcement
22 Agency to local law enforcement agencies to enhance their
23 ability to enforce this Act.
24 Section 65. Severability. If any Section or provision
25 of this Act is held invalid, such invalidity shall not
26 affect other Sections or provisions of this Act, which can
27 be given force and effect without the invalidated Section or
28 provision.
29 Section 70. Local Regulation Preemption.
30 (a) Any city, village or incorporated town may enact an
31 ordinance providing for licensing of sellers of tobacco
-11- LRB9105934RCdv
1 products operating within its corporate limits and
2 establishing procedures for administrative enforcement. Any
3 city, village or incorporated town may enact an ordinance
4 providing for the enforcement of the penalty provisions of
5 this Act as ordinance violations. The provisions of any
6 ordinance enacted by a city, village or incorporated town
7 shall be at least as stringent as the requirements of this
8 Act. Upon certification by the Enforcement Agency that a
9 local licensing ordinance is at least as stringent as this
10 Act, a license issued under it shall satisfy the licensing
11 requirement of Section 30 of this Act. All license fees or
12 penalties collected under a local licensing or enforcement
13 ordinance shall be used exclusively for purposes of
14 enforcing the ordinance authorized under this Section, or for
15 enforcing this Act.
16 (b) If at any time subsequent to certification of a
17 local ordinance, the Enforcement Agency determines that the
18 ordinance is not being enforced by the enacting authority,
19 it may withdraw certification. In the event of withdrawal
20 of certification, the licensing requirements of this Act
21 shall be reimposed upon the expiration of the current local
22 license, but, in any event, no later than one year from the
23 date of withdrawal.
24 (c) Any city, village or incorporated town may enact an
25 ordinance providing for the establishment of minimum age
26 requirements for persons engaged in selling tobacco products,
27 regulation of placement of tobacco products, regulation of
28 placement and usage of vending machines, establishment and
29 implementation of community-based prevention and education
30 programs, and the specification of enforcement procedures,
31 such as sting operations, and other forms of law enforcement
32 pertaining to the enforcement of this Act or an ordinance
33 adopted under subsection (a).
34 (d) The provisions of this Act establish minimum
-12- LRB9105934RCdv
1 standards applicable to all cities, villages and
2 incorporated towns electing to license or regulate the sale
3 of tobacco products, including home rule units.
4 Section 905. The State Finance Act is amended by adding
5 Section 5.490 as follows:
6 (30 ILCS 105/5.490 new)
7 Sec. 5.490. The Tobacco Regulation Fund.
8 Section 910. The Cigarette Tax Act is amended by
9 changing Section 4 as follows:
10 (35 ILCS 130/4) (from Ch. 120, par. 453.4)
11 Sec. 4. No person may engage in business as a distributor
12 of cigarettes in this State within the meaning of the first 2
13 definitions of distributor in Section 1 of this Act without
14 first having obtained a license therefor from the Department.
15 Application for license shall be made to the Department in
16 form as furnished and prescribed by the Department. Each
17 applicant for a license under this Section shall furnish to
18 the Department on the form signed and verified by the
19 applicant the following information:
20 (a) The name and address of the applicant;
21 (b) The address of the location at which the applicant
22 proposes to engage in business as a distributor of cigarettes
23 in this State;
24 (c) Such other additional information as the Department
25 may lawfully require by its rules and regulations.
26 The annual license fee payable to the Department for each
27 distributor's license shall be $1,000 $250. The purpose of
28 such annual license fee is to defray the cost, to the
29 Department, of coding, serializing or coding and serializing
30 cigarette tax stamps, and to assist the Enforcement Agency
-13- LRB9105934RCdv
1 defined in Section 5 of the Juvenile Tobacco Access
2 Prevention Act with costs associated with the enforcement of
3 that Act. Each applicant for license shall pay such fee to
4 the Department at the time of submitting his application for
5 license to the Department. The fee shall be divided equally
6 between the Department and the Enforcement Agency defined in
7 Section 5 of the Juvenile Tobacco Access Prevention Act. The
8 portion allocable to the Enforcement Agency shall be
9 transferred by the Department to the State Treasurer for
10 deposit in the Tobacco Regulation Fund.
11 Every applicant who is required to procure a
12 distributor's license shall file with his application a joint
13 and several bond. Such bond shall be executed to the
14 Department of Revenue, with good and sufficient surety or
15 sureties residing or licensed to do business within the State
16 of Illinois, in the amount of $2,500, conditioned upon the
17 true and faithful compliance by the licensee with all of the
18 provisions of this Act. Such bond, or a reissue thereof, or a
19 substitute therefor, shall be kept in effect during the
20 entire period covered by the license. A separate application
21 for license shall be made, a separate annual license fee
22 paid, and a separate bond filed, for each place of business
23 at which a person who is required to procure a distributor's
24 license under this Section proposes to engage in business as
25 a distributor in Illinois under this Act.
26 The following are ineligible to receive a distributor's
27 license under this Act:
28 (1) a person who is not of good character and reputation
29 in the community in which he resides;
30 (2) a person who has been convicted of a felony under
31 any Federal or State law, if the Department, after
32 investigation and a hearing, if requested by the applicant,
33 determines that such person has not been sufficiently
34 rehabilitated to warrant the public trust;
-14- LRB9105934RCdv
1 (3) a corporation, if any officer, manager or director
2 thereof, or any stockholder or stockholders owning in the
3 aggregate more than 5% of the stock of such corporation,
4 would not be eligible to receive a license under this Act for
5 any reason;.
6 (4) a person previously licensed as a distributor or
7 wholesaler who has been convicted of a second offense under
8 Section 55 of the Juvenile Tobacco Access Prevention Act.
9 The Department, upon receipt of an application, license
10 fee and bond in proper form, from a person who is eligible to
11 receive a distributor's license under this Act, shall issue
12 to such applicant a license in form as prescribed by the
13 Department, which license shall permit the applicant to which
14 it is issued to engage in business as a distributor at the
15 place shown in his application. All licenses issued by the
16 Department under this Act shall be valid for not to exceed
17 one year after issuance unless sooner revoked, canceled or
18 suspended as provided in this Act. No license issued under
19 this Act is transferable or assignable. Such license shall be
20 conspicuously displayed in the place of business conducted by
21 the licensee in Illinois under such license.
22 (Source: P.A. 78-255.)
23 (720 ILCS 675/Act rep.)
24 Section 990. The Sale of Tobacco to Minors Act is
25 repealed.
26 (720 ILCS 680/Act rep.)
27 Section 995. The Smokeless Tobacco Limitation Act is
28 repealed.
29 Section 1005. The Tobacco Accessories and Smoking Herbs
30 Control Act is amended by changing Sections 2 and 4 as
31 follows:
-15- LRB9105934RCdv
1 (720 ILCS 685/2) (from Ch. 23, par. 2358-2)
2 Sec. 2. Purpose. The sale and possession of marijuana,
3 hashish, cocaine, opium and their derivatives, is not only
4 prohibited by Illinois Law, but the use of these substances
5 has been deemed injurious to the health of the user.
6 It has further been determined by the Surgeon General of
7 the United States that the use of tobacco is hazardous to
8 human health.
9 The ready availability of smoking herbs to minors could
10 lead to the use of tobacco and illegal drugs.
11 It is in the best interests of the citizens of the State
12 of Illinois to seek to prohibit the spread of illegal drugs,
13 tobacco or smoking materials to minors. The prohibition of
14 the sale of tobacco and snuff accessories and smoking herbs
15 to minors would help to curb the usage of illegal drugs and
16 tobacco products, among our youth.
17 (Source: P.A. 82-487.)
18 (720 ILCS 685/4) (from Ch. 23, par. 2358-4)
19 Sec. 4. Offenses.
20 (a) (Blank). Sale to minors. No person shall knowingly
21 sell, barter, exchange, deliver or give away or cause or
22 permit or procure to be sold, bartered, exchanged, delivered,
23 or given away tobacco accessories or smoking herbs to any
24 person under 18 years of age.
25 (b) Sale of cigarette paper. No person shall knowingly
26 offer, sell, barter, exchange, deliver or give away cigarette
27 paper or cause, permit, or procure cigarette paper to be
28 sold, offered, bartered, exchanged, delivered, or given away
29 except from premises or an establishment where other tobacco
30 products are sold. For purposes of this Section, "tobacco
31 products" means cigarettes, cigars, smokeless tobacco, or
32 tobacco in any of its forms.
33 (c) Sale of cigarette paper from vending machines. No
-16- LRB9105934RCdv
1 person shall knowingly offer, sell, barter, exchange, deliver
2 or give away cigarette paper or cause, permit, or procure
3 cigarette paper to be sold, offered, bartered, exchanged,
4 delivered, or given away by use of a vending or coin-operated
5 machine or device. For purposes of this Section, "cigarette
6 paper" shall not include any paper that is incorporated into
7 a product to which a tax stamp must be affixed under the
8 Cigarette Tax Act or the Cigarette Use Tax Act.
9 (d) (Blank). Use of identification cards. No person in
10 the furtherance or facilitation of obtaining smoking
11 accessories and smoking herbs shall display or use a false or
12 forged identification card or transfer, alter, or deface an
13 identification card.
14 (e) (Blank). Warning to minors. Any person, firm,
15 partnership, company or corporation operating a place of
16 business where tobacco accessories and smoking herbs are sold
17 or offered for sale shall post in a conspicuous place upon
18 the premises a sign upon which there shall be imprinted the
19 following statement, "SALE OF TOBACCO ACCESSORIES AND SMOKING
20 HERBS TO PERSONS UNDER EIGHTEEN YEARS OF AGE OR THE
21 MISREPRESENTATION OF AGE TO PROCURE SUCH A SALE IS PROHIBITED
22 BY LAW". The sign shall be printed on a white card in red
23 letters at least one-half inch in height.
24 (Source: P.A. 87-153.)