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).