Assembly Bill No. 460–Committee on Judiciary

 

March 24, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes regarding manufacture, sale and use of tobacco products. (BDR 15‑1283)

 

FISCAL NOTE:  Effect on Local Government: Yes.

                           Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to tobacco; making various changes relating to the sale of tobacco products to and the purchase of those products by minors; making various changes regarding the sale, delivery and taxation of cigarettes; revising the duties, rights and licensing requirements of manufacturers, wholesale dealers and retail dealers of cigarettes; providing additional procedures for statutory enforcement; increasing certain criminal penalties and providing additional civil and criminal penalties; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. NRS 202.2485 is hereby amended to read as

1-2  follows:

1-3  202.2485  As used in NRS 202.2485 to 202.2497, inclusive:

1-4  1.  “Delivery sale” means any sale or distribution of a product

1-5  for which:

1-6  (a) The purchaser submits the order for the sale by means of a

1-7  telephonic or other method of voice transmission, the mail or any

1-8  other delivery service, or the Internet or any other online service;

1-9  or

1-10      (b) The product is delivered by mail or the use of another

1-11  delivery service, or by the seller or distributor or his agent.

2-1  2.  “Delivery service” means any person engaged in the

2-2  commercial delivery of letters, packages or other containers.

2-3  3.  “Distribute” includes furnishing, giving away or providing

2-4  products made from tobacco or samples thereof at no cost to

2-5  promote the product, whether or not in combination with a sale.

2-6  [2.] 4.  “Health authority” means the district health officer in a

2-7  district, or his designee, or, if none, the State Health Officer, or his

2-8  designee.

2-9  Sec. 2.  NRS 202.24935 is hereby amended to read as follows:

2-10      202.24935  1.  It is unlawful for a person to knowingly sell or

2-11  distribute cigarettes, cigarette paper, tobacco of any description or

2-12  products made from tobacco to a child under the age of 18 years

2-13  through [the use of the Internet.] a delivery sale.

2-14      2.  A person who violates the provisions of subsection 1 shall

2-15  be punished by a fine of not more than $500 and a civil penalty of

2-16  not more than $500. Any money recovered pursuant to this section

2-17  as a civil penalty must be deposited in the same manner as money is

2-18  deposited pursuant to subsection 6 of NRS 202.2493.

2-19      3.  Every person who sells or distributes cigarettes, cigarette

2-20  paper, tobacco of any description or products made from tobacco

2-21  through [the use of the Internet] a delivery sale shall adopt a policy

2-22  to prevent a child under the age of 18 years from obtaining

2-23  cigarettes, cigarette paper, tobacco of any description or products

2-24  made from tobacco from the person through [the use of the

2-25  Internet.] a delivery sale. The policy must include, without

2-26  limitation, a method for ensuring that the person who delivers such

2-27  items obtains the signature of a person who is over the age of 18

2-28  years when delivering the items, that the packaging or wrapping of

2-29  the items when they are shipped is clearly marked with the word

2-30  “cigarettes” or the words “tobacco products,” and that the person

2-31  complies with the provisions of 15 U.S.C. § 376. A person who fails

2-32  to adopt a policy pursuant to this subsection is guilty of a

2-33  misdemeanor and shall be punished by a fine of not more than $500.

2-34      Sec. 3.  Chapter 62 of NRS is hereby amended by adding

2-35  thereto the provisions set forth as sections 4 and 5 of this act.

2-36      Sec. 4.  A child under the age of 18 years shall not falsely

2-37  represent that he is 18 years of age or older to purchase or obtain

2-38  cigarettes, cigarette paper, tobacco of any description or products

2-39  made from tobacco.

2-40      Sec. 5.  1.  A merchant who has reason to believe that a

2-41  child has falsely represented his age in violation of section 4 of

2-42  this act on the premises of the merchant may take the child into

2-43  custody and detain him, on the premises, in a reasonable manner

2-44  and for a reasonable length of time, to inform a peace officer of

2-45  the circumstances of such detention. Except as otherwise provided

3-1  in subsection 2, such a taking into custody and detention by a

3-2  merchant does not render the merchant criminally or civilly liable

3-3  for false arrest, false imprisonment, slander or unlawful detention

3-4  unless the taking into custody and detention are unreasonable

3-5  under all the circumstances.

3-6  2.  A merchant is entitled to the immunity from liability

3-7  provided for in this section only if there is displayed in a

3-8  conspicuous place on his premises a notice in boldface type which

3-9  is clearly legible and in substantially the following form:

 

3-10  A merchant or his agent who has reason to believe that a

3-11  child under the age of 18 years has falsely represented that

3-12  he is 18 years of age or older to purchase or obtain

3-13  cigarettes, cigarette paper, tobacco of any description or

3-14  products made from tobacco may detain the child on the

3-15  premises of the merchant to notify a peace officer. Section 5

3-16  of this act.

 

3-17      3.  The notice set forth in subsection 2 must be prepared and

3-18  copies thereof supplied upon request by the Superintendent of the

3-19  State Printing Division of the Department of Administration.

3-20      Sec. 6.  NRS 62.040 is hereby amended to read as follows:

3-21      62.040  1.  Except if the child involved is subject to the

3-22  exclusive jurisdiction of an Indian tribe, and except as otherwise

3-23  provided in this chapter, the court has exclusive original jurisdiction

3-24  in proceedings:

3-25      (a) Concerning any child living or found within the county who

3-26  is in need of supervision because he:

3-27          (1) Is a child who is subject to compulsory school attendance

3-28  and is a habitual truant from school;

3-29          (2) Engages in an act described in section 4 of this act;

3-30          (3) Habitually disobeys the reasonable and lawful demands

3-31  of his parents, guardian or other custodian, and is unmanageable; or

3-32          [(3)] (4) Deserts, abandons or runs away from his home or

3-33  usual place of abode,

3-34  and is in need of care or rehabilitation. [The] A child who is in need

3-35  of supervision pursuant to this paragraph must not be considered a

3-36  delinquent.

3-37      (b) Concerning any child living or found within the county who

3-38  has committed a delinquent act. A child commits a delinquent act if

3-39  he violates a county or municipal ordinance or any rule or regulation

3-40  having the force of law, or he commits an act designated a crime

3-41  under the law of the State of Nevada.

3-42      (c) Concerning any child in need of commitment to an

3-43  institution for the mentally retarded.

4-1  2.  For the purposes of subsection 1, each of the following acts

4-2  shall be deemed not to be a delinquent act, and the court does not

4-3  have jurisdiction of a person who is charged with committing such

4-4  an act:

4-5  (a) Murder or attempted murder and any other related offense

4-6  arising out of the same facts as the murder or attempted murder,

4-7  regardless of the nature of the related offense.

4-8  (b) Sexual assault or attempted sexual assault involving the use

4-9  or threatened use of force or violence against the victim and any

4-10  other related offense arising out of the same facts as the sexual

4-11  assault or attempted sexual assault, regardless of the nature of the

4-12  related offense, if:

4-13          (1) The person was 16 years of age or older when the sexual

4-14  assault or attempted sexual assault was committed; and

4-15          (2) Before the sexual assault or attempted sexual assault was

4-16  committed, the person previously had been adjudicated delinquent

4-17  for an act that would have been a felony if committed by an adult.

4-18      (c) An offense or attempted offense involving the use or

4-19  threatened use of a firearm and any other related offense arising out

4-20  of the same facts as the offense or attempted offense involving the

4-21  use or threatened use of a firearm, regardless of the nature of the

4-22  related offense, if:

4-23          (1) The person was 16 years of age or older when the offense

4-24  or attempted offense involving the use or threatened use of a firearm

4-25  was committed; and

4-26          (2) Before the offense or attempted offense involving the use

4-27  or threatened use of a firearm was committed, the person previously

4-28  had been adjudicated delinquent for an act that would have been a

4-29  felony if committed by an adult.

4-30      (d) A felony resulting in death or substantial bodily harm to the

4-31  victim and any other related offense arising out of the same facts as

4-32  the felony, regardless of the nature of the related offense, if:

4-33          (1) The felony was committed on the property of a public or

4-34  private school when pupils or employees of the school were present

4-35  or may have been present, at an activity sponsored by a public or

4-36  private school or on a school bus while the bus was engaged in its

4-37  official duties; and

4-38          (2) The person intended to create a great risk of death or

4-39  substantial bodily harm to more than one person by means of a

4-40  weapon, device or course of action that would normally be

4-41  hazardous to the lives of more than one person.

4-42      (e) Any other offense if, before the offense was committed, the

4-43  person previously had been convicted of a criminal offense.

4-44      3.  If a child is charged with a minor traffic offense, the court

4-45  may transfer the case and record to a justice’s or municipal court if

5-1  the judge determines that it is in the best interest of the child. If a

5-2  case is so transferred:

5-3  (a) The restrictions set forth in subsection 7 of NRS 62.170 are

5-4  applicable in those proceedings; and

5-5  (b) The child must be accompanied at all proceedings by a

5-6  parent or legal guardian.

5-7  With the consent of the judge of the juvenile division, the case may

5-8  be transferred back to the juvenile court.

5-9  4.  As used in this section, “school bus” has the meaning

5-10  ascribed to it in NRS 483.160.

5-11      Sec. 7.  NRS 62.212 is hereby amended to read as follows:

5-12      62.212  1.  Except as otherwise provided in subsection [3,] 4,

5-13  if the court finds that a child is within the purview of paragraph (a)

5-14  of subsection 1 of NRS 62.040 and has not previously been the

5-15  subject of a complaint under NRS 62.128 before committing the acts

5-16  for which the petition was filed, the court shall:

5-17      (a) Admonish the child to obey the law and to refrain from

5-18  repeating the acts for which the petition was filed, and maintain a

5-19  record of the admonition; and

5-20      (b) Refer the child, without adjudication, to services available in

5-21  the community for counseling, behavioral modification and social

5-22  adjustment.

5-23      2.  Except as otherwise provided in subsection [3,] 4, a child

5-24  described in subsection 1 must not be adjudicated to be a child in

5-25  need of supervision unless a subsequent petition based upon

5-26  additional facts is filed with the court after admonition and referral

5-27  pursuant to [this subsection.

5-28      2.] that subsection.

5-29      3.  A child who is:

5-30      (a) Less than 12 years of age must not be committed to or

5-31  otherwise placed in the Nevada Youth Training Center or the

5-32  Caliente Youth Center.

5-33      (b) Not adjudicated to be delinquent must not be committed to

5-34  or otherwise placed in the Nevada Youth Training Center, the

5-35  Caliente Youth Center or any other facility that provides

5-36  correctional care.

5-37      [3.] 4.  The provisions of subsection 1 do not apply to a child

5-38  alleged to be in need of supervision because he is a habitual truant.

5-39      5.  In addition to the actions set forth in subsection 1, a court

5-40  may order a child who engages in an act described in section 4 of

5-41  this act to perform community service. Community service so

5-42  ordered must be performed:

5-43      (a) For and under the supervising authority of a county, city,

5-44  town or other political subdivision or agency of this state or a

6-1  charitable organization that renders service to the community or

6-2  its residents; and

6-3  (b) At the child’s school of attendance, if practicable.

6-4  Sec. 8.  NRS 179.1164 is hereby amended to read as follows:

6-5  179.1164  1.  Except as otherwise provided in subsection 2,

6-6  the following property is subject to seizure and forfeiture in a

6-7  proceeding for forfeiture:

6-8  (a) Any proceeds attributable to the commission or attempted

6-9  commission of any felony.

6-10      (b) Any property or proceeds otherwise subject to forfeiture

6-11  pursuant to NRS 179.121, 200.760, 202.257, 453.301 or 501.3857

6-12  [.] , or section 34 of this act.

6-13      2.  Property may not, to the extent of the interest of any

6-14  claimant, be declared forfeited by reason of an act or omission

6-15  shown to have been committed or omitted without the knowledge,

6-16  consent or willful blindness of the claimant.

6-17      3.  Unless the owner of real property or a mobile home:

6-18      (a) Has given the tenant notice to surrender the premises

6-19  pursuant to NRS 40.254 within 90 days after the owner receives

6-20  notice of a conviction pursuant to subsection 2 of NRS 453.305; or

6-21      (b) Shows the court that he had good cause not to evict the

6-22  tenant summarily pursuant to NRS 40.254,

6-23  the owner of real property or a mobile home used or intended for

6-24  use by a tenant to facilitate any violation of the provisions of NRS

6-25  453.011 to 453.552, inclusive, except NRS 453.336, is disputably

6-26  presumed to have known of and consented to that use if the notices

6-27  required by NRS 453.305 have been given in connection with

6-28  another such violation relating to the property or mobile home. The

6-29  holder of a lien or encumbrance on the property or mobile home is

6-30  disputably presumed to have acquired his interest in the property for

6-31  fair value and without knowledge or consent to such use, regardless

6-32  of when the act giving rise to the forfeiture occurred.

6-33      Sec. 9.  Chapter 370 of NRS is hereby amended by adding

6-34  thereto the provisions set forth as sections 10 to 37, inclusive, of this

6-35  act.

6-36      Sec. 10.  “Cigarette package” means the individual pack, box

6-37  or other container that contains a cigarette. The term does not

6-38  include a container that itself contains other containers, such as a

6-39  carton of cigarettes.

6-40      Sec. 11.  “Counterfeit cigarettes” means any cigarettes or

6-41  cigarette packages:

6-42      1.  Bearing false manufacturing labels;

6-43      2.  Bearing no stamps;

6-44      3.  Bearing counterfeit stamps; or

7-1  4.  Meeting any combination of the descriptions contained in

7-2  subsections 1, 2 and 3.

7-3  Sec. 12.  “Counterfeit stamp” means any stamp that:

7-4  1.  Falsely depicts a stamp approved by the Department; or

7-5  2.  Was not sold by the Department or its agents.

7-6  Sec. 13.  1.  “Delivery sale” means any sale of cigarettes,

7-7  whether the seller is located within or outside of the borders of this

7-8  state, to a consumer in this state for which:

7-9  (a) The purchaser submits the order for the sale by means of a

7-10  telephonic or other method of voice transmission, the mail or any

7-11  other delivery service, or the Internet or any other online service;

7-12  or

7-13      (b) The cigarettes are delivered by mail or the use of another

7-14  delivery service.

7-15      2.  For the purpose of this section, any sale of cigarettes to a

7-16  natural person in this state who does not hold a current license as

7-17  a wholesale or retail dealer constitutes a sale to a consumer.

7-18      Sec. 14.  “Delivery service” means any person engaged in the

7-19  commercial delivery of letters, packages or other containers.

7-20      Sec. 15.  “Importer” means an importer of cigarettes who

7-21  possesses a current permit issued pursuant to 26 U.S.C. § 5713.

7-22      Sec. 16.  “License” means a license issued pursuant to NRS

7-23  370.001 to 370.430, inclusive, and sections 10 to 37, inclusive, of

7-24  this act, that authorizes the holder to conduct business as a

7-25  manufacturer or a wholesale or retail dealer.

7-26      Sec. 17.  “Licensee” means the holder of a license.

7-27      Sec. 18.  “Manufacturer” means any person:

7-28      1.  Who:

7-29      (a) Manufactures, fabricates, assembles, processes or labels a

7-30  finished cigarette; or

7-31      (b) Is required to obtain a permit from the Federal

7-32  Government pursuant to 26 U.S.C. § 5713; and

7-33      2.  Who sends cigarettes or causes cigarettes to be sent into

7-34  this state.

7-35      Sec. 19.  “Place of business” means, for a person engaged in

7-36  business as:

7-37      1.  A wholesale dealer, any location from which cigarettes are

7-38  distributed or where cigarettes are warehoused, stored or affixed

7-39  with stamps; or

7-40      2.  A retail dealer, any store, stand, outlet or other location

7-41  through which cigarettes are distributed or sold to a consumer.

7-42      Sec. 20.  “Secretary” means the Secretary of the United

7-43  States Department of the Treasury.

7-44      Sec. 21.  “Shipping container” means a container in which

7-45  cigarettes are shipped in connection with a delivery sale.

8-1  Sec. 22.  “Shipping documents” means bills of lading, airbills

8-2  or any other documents used to evidence an undertaking by a

8-3  delivery service to deliver letters, packages or other containers.

8-4  Sec. 23.  “Stamp” means the indicia required to be placed on

8-5  a cigarette package that evidences payment of the taxes on

8-6  cigarettes imposed pursuant to NRS 370.0751 and 370.165.

8-7  Sec. 24.  No license may be issued, maintained or renewed:

8-8  1.  If the applicant for the license or any combination of

8-9  persons directly or indirectly owning, in the aggregate, more than

8-10  10 percent of the ownership interests in the applicant:

8-11      (a) Owes $500 or more in delinquent cigarette taxes;

8-12      (b) Had a license as a manufacturer or as a wholesale or retail

8-13  dealer revoked by the Department within the past 2 years;

8-14      (c) Has been convicted of a crime relating to cigarettes,

8-15  including, without limitation, the sale of stolen or counterfeit

8-16  cigarettes or stamps, the receipt of stolen cigarettes, or the

8-17  smuggling or counterfeiting of cigarettes;

8-18      (d) Has been convicted of a felony relating to the sale or

8-19  taxation of tobacco;

8-20      (e) Is a manufacturer who has:

8-21          (1) Imported any cigarettes into the United States in

8-22  violation of 19 U.S.C. § 1681a; or

8-23          (2) Imported or manufactured any cigarettes that do not

8-24  fully comply with the Federal Cigarette Labeling and Advertising

8-25  Act, 15 U.S.C. §§ 1331 et seq.; or

8-26      (f)  Is a manufacturer of tobacco products, as defined in NRS

8-27  370A.060, who is not in full compliance with NRS 370A.140.

8-28      2.  Unless the applicant for the license certifies in writing,

8-29  under penalty of perjury, that the applicant will comply fully with

8-30  the provisions of chapter 370A of NRS.

8-31      Sec. 25.  The Department shall create and maintain on its

8-32  Internet website and otherwise make available for public

8-33  inspection a list of all currently valid licenses and the identity of

8-34  the licensees holding those licenses, and shall update that list at

8-35  least once each month.

8-36      Sec. 26.  1.  Except as otherwise provided in subsection 2 or

8-37  a regulation of the Department:

8-38      (a) No person, other than a wholesale dealer that receives

8-39  unstamped cigarette packages directly from a manufacturer or

8-40  importer, may possess an unstamped cigarette package.

8-41      (b) Any person who ships unstamped cigarette packages into

8-42  this state other than to a wholesale dealer who holds a current

8-43  license shall first file with the Department a notice of that

8-44  shipment.

9-1  2.  Subsection 1 does not apply to any common or contract

9-2  carrier who is transporting cigarettes in compliance with the

9-3  provisions of NRS 370.295.

9-4  Sec. 27.  1.  Each manufacturer shall submit to the

9-5  Department periodic reports of:

9-6  (a) The quantity of cigarette packages that were distributed or

9-7  shipped to another manufacturer or to a wholesale dealer within

9-8  the borders of this state during the reporting period, and the name

9-9  and address of each person to whom those products were

9-10  distributed or shipped;

9-11      (b) The quantity of cigarette packages that were distributed or

9-12  shipped to another facility of the same manufacturer within the

9-13  borders of this state during the reporting period; and

9-14      (c) The quantity of cigarette packages that were distributed or

9-15  shipped within the borders of this state to Indian tribal entities or

9-16  instrumentalities of the Federal Government during the reporting

9-17  period, and the name and address of each person to whom those

9-18  products were distributed or shipped.

9-19      2.  Each wholesale dealer shall submit to the Department

9-20  periodic reports of:

9-21      (a) The quantity of cigarette packages that were distributed or

9-22  shipped within or outside of the borders of this state to another

9-23  wholesale dealer or a retailer during the reporting period, and the

9-24  name and address of each person to whom those products were

9-25  distributed or shipped;

9-26      (b) The quantity of cigarette packages that were distributed or

9-27  shipped within or outside of the borders of this state to another

9-28  facility of the same wholesale dealer during the reporting period;

9-29  and

9-30      (c) The quantity of cigarette packages that were distributed or

9-31  shipped within or outside of the borders of this state to Indian

9-32  tribal entities or instrumentalities of the Federal Government

9-33  during the reporting period, and the name and address of each

9-34  person to whom those products were distributed or shipped.

9-35      3.  The reports required by this section must be:

9-36      (a) Submitted on forms provided by the Department; and

9-37      (b) Provided separately for each of the facilities operated by

9-38  the manufacturer or wholesale dealer.

9-39      4.  In each report required by this section, the information

9-40  required must be itemized so as to disclose clearly:

9-41      (a) The quantities of stamped and unstamped cigarettes to

9-42  which the report applies; and

9-43      (b) The brand and style of cigarettes to which the report

9-44  applies.

9-45      5.  The Department shall by regulation establish:

10-1      (a) A reporting period for the reports required by this section,

10-2  which must be not less than 1 month nor more than 3 months; and

10-3      (b) Procedures for the electronic submission of the reports

10-4  required by this section.

10-5      Sec. 28.  1.  A person shall not accept an order for a delivery

10-6  sale unless the person first obtains a license as a retail dealer.

10-7      2.  A person who accepts an order for a delivery sale shall

10-8  comply with all of the requirements of this chapter and chapters

10-9  370A, 372 and 374 of NRS, and all other laws of this state

10-10  generally applicable to sales of cigarettes that occur entirely

10-11  within this state.

10-12     Sec. 29.  1.  A person shall not cause the mailing or

10-13  shipment of cigarettes in connection with an order for a delivery

10-14  sale unless the person accepting the order first:

10-15     (a) Obtains from the prospective purchaser a certification

10-16  which includes:

10-17         (1) Reliable confirmation that the purchaser is at least 18

10-18  years of age; and

10-19         (2) A statement signed by the prospective purchaser in

10-20  writing and under penalty of perjury which:

10-21             (I) Certifies the prospective purchaser’s address and

10-22  date of birth;

10-23             (II) Confirms that the prospective purchaser

10-24  understands that signing another person’s name to such

10-25  certification is illegal and that sales of cigarettes to children under

10-26  18 years of age are illegal under the laws of this state; and

10-27             (III) Confirms that the prospective purchaser desires to

10-28  receive mailings from a tobacco company.

10-29     (b) Makes a good faith effort to verify the information

10-30  contained in the certification provided by the prospective

10-31  purchaser pursuant to paragraph (a) against any federal or

10-32  commercially available database established for that purpose;

10-33     (c) Sends to the prospective purchaser, by electronic mail or

10-34  other means, a notice which meets the requirements of subsection

10-35  2 and requests confirmation that the order for the delivery sale

10-36  was placed by the prospective purchaser;

10-37     (d) Receives from the prospective purchaser confirmation,

10-38  pursuant to the request described in paragraph (c), that such

10-39  person placed the order for the delivery sale; and

10-40     (e) Receives payment for the delivery sale from the prospective

10-41  purchaser by a credit or debit card that has been issued in that

10-42  purchaser’s name.

10-43     2.  The notice required by paragraph (c) of subsection 1 must

10-44  include:

11-1      (a) A prominent and clearly legible statement that the sale of

11-2  cigarettes to children under 18 years of age is illegal;

11-3      (b) A prominent and clearly legible statement that consists of

11-4  one of the warnings set forth in 15 U.S.C. § 1333(a)(1), which

11-5  must be rotated on a quarterly basis;

11-6      (c) A prominent and clearly legible statement that the sale of

11-7  cigarettes is restricted to persons who provide verifiable proof of

11-8  age in accordance with this section; and

11-9      (d) A prominent and clearly legible statement that sales of

11-10  cigarettes are taxable under this chapter, and an explanation of

11-11  how the tax has been or is to be paid with respect to the delivery

11-12  sale.

11-13     3.  Persons accepting orders for delivery sales may request

11-14  that prospective purchasers provide their electronic mail

11-15  addresses.

11-16     Sec. 30.  1.  A person who causes the mailing or shipment of

11-17  cigarettes in connection with an order for a delivery sale shall:

11-18     (a) Use a method of mailing or shipping that obligates the

11-19  delivery service to carry out the provisions of section 32 of this act;

11-20     (b) Provide to the delivery service retained to deliver the

11-21  delivery sale evidence that all taxes levied by this state with respect

11-22  to the delivery sale have been paid to this state; and

11-23     (c) Include as part of the shipping documents:

11-24         (1) A copy of the retail dealer’s license authorizing the

11-25  delivery sale;

11-26         (2) An envelope addressed to the Department, with postage

11-27  prepaid, that contains an invoice which provides the information

11-28  required by section 31 of this act for that delivery sale; and

11-29         (3) A clear and conspicuous statement providing as follows:

 

11-30  “DELIVERY SALE OF CIGARETTES: NEVADA LAW

11-31  PROHIBITS SHIPPING TO CHILDREN UNDER 18

11-32  YEARS OF AGE AND REQUIRES THE PAYMENT OF

11-33  ALL APPLICABLE TAXES.”

 

11-34     2.  A person who accepts an order for a delivery sale and

11-35  delivers the cigarettes without using a third-party delivery service

11-36  shall comply with all the requirements of section 32 of this act

11-37  applicable to a delivery service.

11-38     Sec. 31.  Not later than the 10th day of each calendar month,

11-39  each person who has mailed, shipped or otherwise delivered

11-40  cigarettes in connection with a delivery sale during the previous

11-41  calendar month, except a delivery service, shall file with the

11-42  Department a memorandum or a copy of the invoice which

11-43  provides for every such delivery sale:

12-1      1.  The name and address of the person to whom the delivery

12-2  sale was made; and

12-3      2.  The quantity and brands of cigarettes that were sold in the

12-4  delivery sale.

12-5      Sec. 32.  1.  Except as otherwise provided in subsection 2, a

12-6  delivery service shall:

12-7      (a) Before delivering a shipping container in connection with

12-8  a delivery sale:

12-9          (1) Ensure that the shipping documents include the

12-10  documents required by paragraph (c) of subsection 1 of section 30

12-11  of this act;

12-12         (2) Obtain the evidence required by paragraph (b) of

12-13  subsection 1 of section 30 of this act regarding the cigarettes in the

12-14  shipping container; and

12-15         (3) Ensure that each cigarette package in the shipping

12-16  container bears a valid stamp. The delivery service shall return to

12-17  the shipper any cigarette packages that do not bear a valid stamp.

12-18     (b) When delivering a shipping container in connection with a

12-19  delivery sale, require:

12-20         (1) The purchaser placing the order for the delivery sale, or

12-21  an adult designated by that purchaser, to sign to accept delivery of

12-22  the shipping container; and

12-23         (2) Proof, in the form of valid identification that was issued

12-24  by a governmental entity and bears a photograph of the person

12-25  who signs to accept delivery of the shipping container,

12-26  demonstrating:

12-27             (I) That the person is either the addressee or the adult

12-28  designated by the addressee; and

12-29             (II) If the person appears to be under 27 years of age,

12-30  that the person is at least 18 years of age.

12-31     (c) After delivering a shipping container in connection with a

12-32  delivery sale, mail to the Department the invoice included in the

12-33  shipping documents pursuant to paragraph (c) of subsection 1 of

12-34  section 30 of this act.

12-35     2.  A delivery service is required to comply with the provisions

12-36  of subsection 1 only if the delivery service:

12-37     (a) Is obligated to do so under a method of shipping;

12-38     (b) Delivers any container pursuant to shipping documents

12-39  containing the statement described in paragraph (c) of subsection

12-40  1 of section 30 of this act; or

12-41     (c) Delivers any container that the delivery service otherwise

12-42  has reason to know contains cigarettes sold pursuant to a delivery

12-43  sale.

12-44     Sec. 33.  In addition to any other penalty authorized by law:

12-45     1.  The Department may:

13-1      (a) Impose a civil penalty of $1,000 on any person who

13-2  knowingly:

13-3          (1) Omits, neglects or refuses to:

13-4              (I) Comply with any duty imposed upon him pursuant to

13-5  the provisions of NRS 370.080 to 370. 315, inclusive, and sections

13-6  24 to 27, inclusive, of this act; or

13-7              (II) Do or cause to be done any of the things required

13-8  pursuant to those provisions; or

13-9          (2) Does anything prohibited by the provisions of NRS

13-10  370.080 to 370. 315, inclusive, and sections 24 to 27, inclusive, of

13-11  this act.

13-12     (b) Impose on each person who violates any of the provisions

13-13  of sections 28 to 32, inclusive, of this act, a civil penalty of:

13-14         (1) Not more than $1,000 for the first violation; and

13-15         (2) Not less than $1,000 nor more than $5,000 for each

13-16  subsequent violation.

13-17     2.  Any person who fails to pay any tax imposed pursuant to

13-18  the provisions of NRS 370.080 to 370. 315, inclusive, and sections

13-19  24 to 32, inclusive, of this act within the time prescribed by law or

13-20  regulation shall pay a penalty of 500 percent of the tax due but

13-21  unpaid, in addition to the tax.

13-22     Sec. 34.  All fixtures, equipment and other materials and

13-23  personal property on the premises of any wholesale or retail dealer

13-24  who, with intent to defraud the state:

13-25     1.  Fails to keep or make any record, return, report or

13-26  inventory required pursuant to NRS 370.080 to 370.315, inclusive,

13-27  and sections 24 to 32, inclusive, of this act;

13-28     2.  Keeps or makes any false or fraudulent record, return,

13-29  report or inventory required pursuant to NRS 370.080 to 370.315,

13-30  inclusive, and sections 24 to 32, inclusive, of this act;

13-31     3.  Refuses to pay any tax imposed pursuant to NRS 370.080

13-32  to 370.315, inclusive, and sections 24 to 32, inclusive, of this act;

13-33  or

13-34     4.  Attempts in any manner to evade or defeat the

13-35  requirements of NRS 370.080 to 370.315, inclusive, and sections

13-36  24 to 32, inclusive, of this act,

13-37  is subject to forfeiture pursuant to NRS 179.1156 to 179.119,

13-38  inclusive.

13-39     Sec. 35.  1.  It is unlawful for a person, with the intent to

13-40  defraud the state:

13-41     (a) To fail to keep or make any record, return, report or

13-42  inventory, or keep or make any false or fraudulent record, return,

13-43  report, or inventory, required pursuant to NRS 370.080 to 370.315,

13-44  inclusive, and sections 24 to 32, inclusive, of this act or any

14-1  regulations adopted for the administration or enforcement of those

14-2  provisions;

14-3      (b) To refuse to pay any tax imposed pursuant to NRS 370.080

14-4  to 370.315, inclusive, and sections 24 to 32, inclusive, of this act,

14-5  or attempt in any manner to evade or defeat the tax or the payment

14-6  thereof;

14-7      (c) To alter, forge or otherwise counterfeit any stamp;

14-8      (d) To sell or possess for the purpose of sale any counterfeit

14-9  stamp;

14-10     (e) To have in his possession any counterfeit stamp, with the

14-11  intent to use the counterfeit stamp, knowing or having reasonable

14-12  grounds to believe the stamp to be a counterfeit stamp;

14-13     (f) To have in his possession any stamp which he knows has

14-14  been removed from any cigarette package to which it was affixed;

14-15     (g) To affix to any cigarette package a stamp which he knows

14-16  has been removed from any other cigarette package; or

14-17     (h) To fail to comply with any requirement of NRS 370.080 to

14-18  370.315, inclusive, and sections 24 to 32, inclusive, of this act.

14-19     2.  A person who violates any of the provisions of subsection 1

14-20  is guilty of a category C felony and shall be punished as provided

14-21  in NRS 193.130.

14-22     Sec. 36.  1.  It is unlawful for any person knowingly to sell

14-23  or to possess for the purpose of sale any counterfeit cigarettes. The

14-24  presence of counterfeit cigarettes in a cigarette vending machine

14-25  is prima facie evidence of the purpose to sell those cigarettes.

14-26     2.  A person who violates any provision of subsection 1 is

14-27  guilty of:

14-28     (a) For the first offense involving less than 400 cigarettes, a

14-29  misdemeanor.

14-30     (b) For each subsequent offense involving less than 400

14-31  cigarettes, a category D felony and shall be punished as provided

14-32  in NRS 193.130.

14-33     (c) For the first offense involving 400 or more cigarettes, a

14-34  gross misdemeanor.

14-35     (d) For each subsequent offense involving 400 or more

14-36  cigarettes, a category C felony and shall be punished as provided

14-37  in NRS 193.130.

14-38     Sec. 37.  1.  A person who:

14-39     (a) Knowingly violates any of the provisions of sections 28 to

14-40  32, inclusive, of this act; or

14-41     (b) Knowingly and falsely submits a certification pursuant to

14-42  paragraph (a) of subsection 1 of section 29 of this act in the name

14-43  of another person,

14-44  is guilty of a category C felony and shall be punished as provided

14-45  in NRS 193.130.

15-1      2.  The Attorney General or the district attorney of the proper

15-2  county may bring an action in the district courts of this state to

15-3  enjoin any violation of sections 28 to 32, inclusive, of this act.

15-4      Sec. 38.  NRS 370.001 is hereby amended to read as follows:

15-5      370.001  As used in NRS 370.001 to 370.430, inclusive, and

15-6  sections 10 to 37, inclusive, of this act, unless the context otherwise

15-7  requires, the words and terms defined in NRS 370.005 to 370.055,

15-8  inclusive, and sections 10 to 23, inclusive, of this act have the

15-9  meanings ascribed to them in those sections.

15-10     Sec. 39.  NRS 370.015 is hereby amended to read as follows:

15-11     370.015  “Cigarette vending machine operator” means any

15-12  [person] retail dealer licensed to sell only Nevada stamped

15-13  cigarettes by means of coin-operated machines anywhere in Nevada.

15-14     Sec. 40.  NRS 370.025 is hereby amended to read as follows:

15-15     370.025  “Contraband cigarettes” means any [cigarettes

15-16  exported] :

15-17     1.  Counterfeit cigarettes; or

15-18     2.  Cigarettes:

15-19     (a) Exported from or imported into this state , or mailed,

15-20  shipped, delivered or held for distribution within the borders of

15-21  this state by any person in violation of any of the provisions of this

15-22  chapter [or which are, in any way,] ;

15-23     (b) In any way held in the possession or constructive possession

15-24  of any person not authorized under this chapter to possess or

15-25  constructively possess [these cigarettes.] the cigarettes; or

15-26     (c) Stamped, sold, or offered or possessed for sale in violation

15-27  of section 71 of this act.

15-28     Sec. 41.  NRS 370.033 is hereby amended to read as follows:

15-29     370.033  “Retail dealer” means any person , whether located

15-30  within or outside of the borders of this state, who [offers to sell

15-31  cigarettes at retail or who is engaged in selling cigarettes at retail.]

15-32  sells or distributes cigarettes to a consumer within the State.

15-33     Sec. 42.  NRS 370.055 is hereby amended to read as follows:

15-34     370.055  “Wholesale dealer” means:

15-35     1.  Any person , whether located within or outside of the

15-36  borders of this state, who [brings] :

15-37     (a) Brings, sends, or causes to be brought or sent into this state

15-38  any unstamped cigarettes purchased from the manufacturer or

15-39  another [wholesaler, and who stores,] wholesale dealer; and

15-40     (b) Stores, sells or otherwise disposes of [them] those cigarettes

15-41  within the State.

15-42     2.  Any person who manufactures or produces cigarettes within

15-43  this state and who sells or distributes them within the State.

15-44     3.  Any person , whether located within or outside of the

15-45  borders of this state, who acquires cigarettes solely for the purpose

16-1  of bona fide resale to retail dealers in this state or to other persons

16-2  in this state for the purpose of resale only.

16-3      Sec. 43.  NRS 370.065 is hereby amended to read as follows:

16-4      370.065  In order to obtain evidence of any violation of this

16-5  chapter, the Department, its agents, and all peace officers and

16-6  revenue-collecting officers of this state [shall have the right of

16-7  visitation and inspection of any] may enter and inspect, without a

16-8  warrant during normal business hours and with a warrant at any

16-9  other time:

16-10     1.  The facilities and records of any manufacturer, wholesale

16-11  dealer or retail dealer; and

16-12     2.  Any other place where they may have reason to believe

16-13  [unstamped] contraband cigarettes are stored, warehoused or kept

16-14  for sale. [Such visitation and inspection shall be conducted during

16-15  business hours.]

16-16     Sec. 44.  NRS 370.080 is hereby amended to read as follows:

16-17     370.080  1.  A person shall not engage in business as a [dealer

16-18  of cigarettes] wholesale dealer in the State of Nevada unless he first

16-19  secures a [wholesale or retail cigarette dealer’s] license to engage in

16-20  that activity from the Department.

16-21     2.  A person shall not engage in business as a retail dealer in

16-22  the State of Nevada unless he first secures a license to engage in

16-23  that activity from the Department.

16-24     3.  A manufacturer shall not sell any cigarettes to a wholesale

16-25  dealer in the State of Nevada unless he first secures a license to

16-26  engage in that activity from the Department.

16-27     4.  A separate license is required to engage in each of the

16-28  activities described in this section.

16-29     Sec. 45.  NRS 370.100 is hereby amended to read as follows:

16-30     370.100  An application for a [cigarette dealer’s] license must:

16-31     1.  Be made to the Department on forms prescribed by the

16-32  Department.

16-33     2.  Include the name and address of the applicant. If the

16-34  applicant is a firm, association or partnership, the application must

16-35  include the names and addresses of [all partners.] each of its

16-36  members. If the applicant is a corporation, [association or other

16-37  organization,] the application must include the names and addresses

16-38  of the president, vice president, secretary and managing officer or

16-39  officers.

16-40     3.  Specify the location, by street and number, of the principal

16-41  place of business of the applicant and of the premises for which the

16-42  license is sought.

16-43     4.  [Be] Specify any other information the Department may

16-44  require.

17-1      5.  Except as otherwise provided in NRS 370.001 to 370.430,

17-2  inclusive, and sections 10 to 37, inclusive, of this act, be

17-3  accompanied by the required license fee.

17-4      [5.] 6.  Be accompanied by a certified copy of the certificate

17-5  required by NRS 602.010 or any renewal certificate required by

17-6  NRS 602.035.

17-7      Sec. 46.  NRS 370.140 is hereby amended to read as follows:

17-8      370.140  1.  [Wholesale cigarette dealers’ licenses shall permit

17-9  the holders] A current license as a:

17-10     (a) Manufacturer authorizes the holder thereof to sell

17-11  cigarettes [to retail dealers, or to other Nevada licensed wholesale

17-12  cigarette dealers, or to cigarette vending machine operators

17-13  anywhere in Nevada.

17-14     2.  No retailer, retail cigarette dealer or cigarette vending

17-15  machine operator shall purchase any cigarettes from other than a

17-16  Nevada licensed wholesale cigarette dealer.] anywhere within the

17-17  borders of this state to a wholesale dealer who holds a current

17-18  license.

17-19     (b) Wholesale dealer authorizes the holder thereof to:

17-20         (1) Purchase cigarettes from any manufacturer or

17-21  wholesale dealer who holds a current license; or

17-22         (2) Sell cigarettes anywhere within the borders of this state

17-23  to any wholesale or retail dealer who holds a current license.

17-24     (c) Retail dealer authorizes the holder thereof to:

17-25         (1) Purchase cigarettes from any wholesale dealer who

17-26  holds a current license; or

17-27         (2) Sell cigarettes anywhere within the borders of this state

17-28  to any consumer.

17-29     2.  No person who holds a current license as a:

17-30     (a) Manufacturer may sell cigarettes within the borders of this

17-31  state to any person other than a wholesale dealer who holds a

17-32  current license.

17-33     (b) Wholesale or retail dealer may purchase cigarettes for sale

17-34  within the borders of this state or sell cigarettes within the borders

17-35  of this state except as authorized pursuant to subsection 1.

17-36     Sec. 47.  NRS 370.150 is hereby amended to read as follows:

17-37     370.150  1.  Each license issued by the Department is valid

17-38  only for the calendar year for which it is issued, and must be

17-39  renewed annually.

17-40     2.  The Department shall not charge any license fees for a

17-41  manufacturer’s or retail [cigarette] dealer’s license.

17-42     [2.] 3.  An annual license fee of $150 [shall] must be charged

17-43  for each wholesale [cigarette] dealer’s license. If [any license, other

17-44  than the renewal of a delinquent license,] such a license is issued at

17-45  any time during the year other than on January 1, except for the

18-1  renewal of a delinquent license pursuant to subsection 5, the

18-2  licensee shall pay a proportionate part of the annual fee for the

18-3  remainder of the year, but not less than 25 percent of the annual

18-4  license fee.

18-5      [3.  Wholesale cigarette]

18-6      4.  The fees for a wholesale dealer’s license [fees] are due and

18-7  payable on January 1 of each year. If the annual license fee is not

18-8  paid by January 15, the license is cancelled automatically.

18-9      [4.] 5.  A wholesale [cigarette] dealer’s license which is

18-10  cancelled for nonpayment of the annual license fee may be renewed

18-11  at any time by the payment of the fee plus a 5 percent penalty

18-12  thereon.

18-13     Sec. 48.  NRS 370.210 is hereby amended to read as follows:

18-14     370.210  1.  A wholesale dealer whose stamping facilities are

18-15  located within the borders of this state shall affix stamps to all

18-16  applicable cigarette packages received at those stamping facilities

18-17  within 72 hours after receipt. A wholesale dealer may set aside,

18-18  without affixing stamps, only that part of the stock of the

18-19  wholesale dealer that is identified for sale or distribution outside

18-20  of the borders of this state. A wholesale dealer must identify any

18-21  stock to be set aside pursuant to this subsection within 72 hours

18-22  after the receipt of that stock.

18-23     2.  A wholesale dealer may affix stamps only to cigarette

18-24  packages that the wholesale dealer has received directly from a

18-25  manufacturer or importer.

18-26     3.  If a wholesale dealer maintains stocks of unstamped

18-27  cigarette packages as authorized pursuant to subsection 1, those

18-28  unstamped cigarette packages must be stored separately from

18-29  stamped cigarette packages and must not be transferred by the

18-30  wholesale dealer to another facility of the wholesale dealer within

18-31  the borders of this state or to any other person within the borders

18-32  of this state.

18-33     4.  A person shall not affix [cigarette revenue stamps or metered

18-34  machine impressions] stamps to any [package, packet or container

18-35  of cigarettes] cigarette packages except upon the premises

18-36  described in the license of a [cigarette] wholesale dealer or upon

18-37  other premises where authorized by regulation.

18-38     Sec. 49.  NRS 370.250 is hereby amended to read as follows:

18-39     370.250  1.  If any dealer in cigarettes upon which a

18-40  precollected or advance tax is required to be paid fails to file any

18-41  report [to] required pursuant to NRS 370.240 with the Department

18-42  or its agents on or before the date due, the Department may suspend

18-43  his license [or permit] until the report is received and found to be

18-44  correct.

19-1      2.  The Department may temporarily suspend or permanently

19-2  revoke the [licenses] license of any [cigarette dealer] licensee for

19-3  violating, or causing or permitting to be violated, any of the

19-4  provisions of NRS 370.001 to 370.430, inclusive[.] , and sections

19-5  10 to 37, inclusive, of this act, or of sections 65 to 70, inclusive, of

19-6  this act, or any regulations adopted for the administration or

19-7  enforcement of any of those provisions.

19-8      3.  The Department shall permanently revoke the license of

19-9  any licensee convicted of any felony pursuant to section 36 of this

19-10  act.

19-11     Sec. 50.  NRS 370.255 is hereby amended to read as follows:

19-12     370.255  1.  Each [dealer authorized to purchase or affix

19-13  cigarette revenue stamps] :

19-14     (a) Wholesale dealer shall maintain [records of all cigarettes

19-15  received, sold or distributed by him. Each dealer shall also obtain

19-16  and keep receipts, freight bills, invoices and other documents

19-17  necessary to substantiate his records. Records and documents shall

19-18  be kept at the dealer’s place of business] copies of invoices or

19-19  equivalent documentation for each of its facilities for every

19-20  transaction in which the wholesale dealer is the seller, purchaser,

19-21  consignor, consignee or recipient of cigarettes. The invoices or

19-22  documentation must indicate the name and address of the

19-23  consignor, seller, purchaser or consignee, and the quantity by

19-24  brand and style of the cigarettes involved in the transaction.

19-25     (b) Retail dealer shall maintain copies of invoices or

19-26  equivalent documentation for every transaction in which the retail

19-27  dealer receives or purchases cigarettes at each of its facilities. The

19-28  invoices or documentation must indicate the name and address of

19-29  the wholesale dealer from whom, or the address of another facility

19-30  of the same retail dealer from which, the cigarettes were received,

19-31  and the quantity of each brand and style of the cigarettes received

19-32  in the transaction.

19-33     (c) Manufacturer shall maintain copies of invoices or

19-34  equivalent documentation for each of its facilities for every

19-35  transaction in which the manufacturer is the seller, purchaser,

19-36  consignor, consignee or recipient of cigarettes. The invoices or

19-37  documentation must indicate the name and address of the

19-38  consignor, seller, purchaser or consignee, and the quantity by

19-39  brand and style of the cigarettes involved in the transaction.

19-40     2.  The records required by this section must be preserved on

19-41  the premises described in the license of the manufacturer,

19-42  wholesale dealer or retail dealer in such a manner as to ensure

19-43  permanency and accessibility for inspection at reasonable hours

19-44  by authorized personnel of the Department. With the permission of

19-45  the Department, manufacturers, wholesale dealers and retail

20-1  dealers with multiple places of business may retain centralized

20-2  records, but shall transmit duplicates of the invoices or the

20-3  equivalent documentation to each place of business within 24

20-4  hours after the request of the Executive Director or his designee.

20-5      3.  The records required by this section must be retained for

20-6  not less than [4] 3 years after the date of the transaction unless the

20-7  Department authorizes, in writing, their earlier removal or

20-8  destruction.

20-9      Sec. 51.  NRS 370.257 is hereby amended to read as follows:

20-10     370.257  1.  Each manufacturer, wholesale dealer and retail

20-11  dealer shall provide to the Executive Director and his designees

20-12  and to the Secretary or his designee, upon request, access to all the

20-13  reports and records required by NRS 370.001 to 370.430,

20-14  inclusive, and sections 10 to 37, inclusive, of this act. The

20-15  Department at its sole discretion may share the records and

20-16  reports required by those sections with law enforcement officials

20-17  of the Federal Government, other states or international

20-18  authorities.

20-19     2.  Except as otherwise provided in this subsection, the reports

20-20  submitted by licensees pursuant to NRS 370.001 to 370.430,

20-21  inclusive, and sections 10 to 37, inclusive, of this act are public

20-22  records. Any information contained in those reports about

20-23  quantities of cigarettes by brand must not be released to anyone

20-24  other than persons permitted access to those reports pursuant to

20-25  subsection 1.

20-26     3.  The Department may audit the records of each [dealer

20-27  authorized to purchase or affix cigarette revenue stamps]

20-28  manufacturer, wholesale dealer or retail dealer to determine [that

20-29  the dealer] whether the manufacturer, wholesale dealer or retail

20-30  dealer has complied with the provisions of NRS 370.001 to

20-31  370.430, inclusive[.] , and sections 10 to 37, inclusive, of this act.

20-32     Sec. 52.  NRS 370.301 is hereby amended to read as follows:

20-33     370.301  1.  If any unstamped cigarettes are consigned to or

20-34  purchased by any person in this state, such purchaser or consignee

20-35  must be a person authorized by this chapter to possess unstamped

20-36  cigarettes.

20-37     2.  If invoices or delivery tickets for unstamped cigarettes are

20-38  lacking, if the name or address of the consignee or purchaser is

20-39  falsified or if the purchaser or consignee is not authorized by this

20-40  chapter to possess unstamped cigarettes, the cigarettes transported

20-41  [shall be] are subject to seizure and sale under the provisions of

20-42  NRS 370.270.

20-43     3.  Transportation of cigarettes through this state from a point

20-44  outside this state to a point in some other state is not a violation of

20-45  this section if the person transporting the cigarettes has in his

21-1  possession adequate invoices or delivery tickets which give the true

21-2  name and address of the out-of-state seller or consignor and the out-

21-3  of-state purchaser or consignee.

21-4      4.  In any case where the Department, its duly authorized agent

21-5  or any peace officer of the state has knowledge or reasonable

21-6  grounds to believe that any vehicle is transporting cigarettes in

21-7  violation of this [section,] chapter, the Department, agent or peace

21-8  officer may stop the vehicle and inspect it for [unstamped]

21-9  contraband cigarettes.

21-10     Sec. 53.  NRS 370.380 is hereby amended to read as follows:

21-11     370.380  1.  It is unlawful for a person, with the intent to

21-12  defraud the State:

21-13     (a) To alter, forge or counterfeit any license[, stamp or cigarette

21-14  tax meter impression provided for in this chapter;] ; or

21-15     (b) To have in his possession any forged, counterfeited, spurious

21-16  or altered license[, stamp or cigarette tax meter impression,] with

21-17  the intent to use the same, knowing or having reasonable grounds to

21-18  believe the same to be such . [;

21-19     (c) To have in his possession one or more cigarette stamps or

21-20  cigarette tax meter impressions which he knows have been removed

21-21  from the pieces of packages or packages of cigarettes to which they

21-22  were affixed;

21-23     (d) To affix to any piece of a package or package of cigarettes a

21-24  stamp or cigarette tax meter impression which he knows has been

21-25  removed from any other piece of a package or package of cigarettes;

21-26  or

21-27     (e) To have in his possession for the purpose of sale cigarettes

21-28  which do not bear indicia of the State of Nevada excise tax

21-29  stamping. Presence of the cigarettes in a cigarette vending machine

21-30  is prima facie evidence of the purpose to sell.]

21-31     2.  A person who violates any of the provisions of subsection 1

21-32  is guilty of [a misdemeanor on the first offense and upon the second

21-33  or subsequent offense is guilty of] a category [D] C felony and shall

21-34  be punished as provided in NRS 193.130.

21-35     Sec. 54.  NRS 370.390 is hereby amended to read as follows:

21-36     370.390  Except as otherwise provided in NRS 370.380[,] and

21-37  section 35 of this act, any person violating any of the provisions of

21-38  NRS 370.080 to [370.310, inclusive, shall be] 370.315, inclusive,

21-39  and sections 24 to 27, inclusive, of this act is guilty of a gross

21-40  misdemeanor.

21-41     Sec. 55.  NRS 370.410 is hereby amended to read as follows:

21-42     370.410  [Any] Except as otherwise provided in section 36 of

21-43  this act, any person exporting, importing, possessing or

21-44  constructively possessing contraband cigarettes is guilty of a gross

21-45  misdemeanor.

22-1      Sec. 56.  NRS 370.415 is hereby amended to read as follows:

22-2      370.415  1.  The Department, its agents, sheriffs within their

22-3  respective counties and all other peace officers of the State of

22-4  Nevada shall seize any counterfeit stamps and any contraband

22-5  cigarettes and machinery used to manufacture contraband

22-6  cigarettes, found or located in the State of Nevada.

22-7      2.  A sheriff or other peace officer who seizes stamps, cigarettes

22-8  or machinery pursuant to this section shall provide written

22-9  notification of the seizure to the Department not later than 5

22-10  working days after the seizure. The notification must include the

22-11  reason for the seizure.

22-12     3.  After consultation with the Department, the sheriff or other

22-13  peace officer shall transmit the cigarettes to the Department if:

22-14     (a) The cigarettes, except for revenue stamps or metered

22-15  machine impressions being properly affixed as required by this

22-16  chapter, comply with all state and federal statutes and regulations;

22-17  and

22-18     (b) The Department approves the transmission of the cigarettes.

22-19     4.  Upon receipt of the cigarettes, the Department shall dispose

22-20  of the cigarettes as provided in subsection 4 of NRS 370.270.

22-21     5.  [If the] The sheriff or other peace officer who seizes any

22-22  stamps, cigarettes or machinery pursuant to this section shall:

22-23     (a) Destroy the stamps and machinery; and

22-24     (b) If he does not transmit the cigarettes to the Department, [he

22-25  shall] destroy the cigarettes.

22-26     Sec. 57.  Chapter 370A of NRS is hereby amended by adding

22-27  thereto the provisions set forth as sections 58 to 72, inclusive, of this

22-28  act.

22-29     Sec. 58.  The Legislature finds that:

22-30     1.  Violations of the provisions of NRS 370A.130 to 370A.160,

22-31  inclusive, threaten the integrity of the Master Settlement

22-32  Agreement, the fiscal soundness of the State and the public health.

22-33     2.  The enactment of the procedural enhancements set forth in

22-34  sections 58 to 72, inclusive, of this act will aid in the enforcement

22-35  of the provisions of NRS 370A.130 to 370A.160, inclusive, and

22-36  thereby safeguard the Master Settlement Agreement, the fiscal

22-37  soundness of the State and the public health.

22-38     Sec. 59.  As used in sections 58 to 72, inclusive, of this act,

22-39  unless the context otherwise requires, the words and terms defined

22-40  in sections 60 to 64, inclusive, of this act have the meanings

22-41  ascribed to them in those sections.

22-42     Sec. 60.  “Brand family” means all styles of cigarettes sold

22-43  under the same trade mark and differentiated from one another by

22-44  means of additional modifiers or descriptors, including, but not

22-45  limited to, “menthol,” “lights,” “kings,” and “100s,” and includes

23-1  any brand name, whether occurring alone or in conjunction with

23-2  any other word, any trademark, logo, symbol, motto, selling

23-3  message or recognizable pattern of colors, or any other indicia of

23-4  product identification identical or similar to, or identifiable with, a

23-5  previously known brand of cigarettes.

23-6      Sec. 61.  “Directory” means the directory created pursuant to

23-7  section 67 of this act.

23-8      Sec. 62.  “Distributor” means a person that is authorized to

23-9  affix stamps to cigarette packages pursuant to chapter 370 of NRS

23-10  or any person that is required to pay the taxes on cigarettes

23-11  imposed pursuant to chapter 370 of NRS.

23-12     Sec. 63.  “Nonparticipating manufacturer” means any

23-13  manufacturer of tobacco products that is not a participating

23-14  manufacturer.

23-15     Sec. 64.  “Stamp” means the indicia required to be placed on

23-16  a cigarette package that evidences payment of the taxes on

23-17  cigarettes imposed pursuant to chapter 370 of NRS.

23-18     Sec. 65.  1.  A manufacturer of tobacco products whose

23-19  cigarettes are sold in this state, whether directly or through a

23-20  distributor, retailer or similar intermediary or intermediaries,

23-21  shall, not later than April 30 of each year, execute and deliver to

23-22  the Attorney General and the Department, on a form provided by

23-23  the Department, a certification which certifies under penalty of

23-24  perjury that, as of the date of that certification, the manufacturer

23-25  of tobacco products is either:

23-26     (a) A participating manufacturer; or

23-27     (b) In full compliance with subsection 2 of NRS 370A.140,

23-28  including any quarterly installment payments required pursuant to

23-29  section 70 of this act.

23-30     2.  Except as otherwise provided in section 66 of this act:

23-31     (a) A participating manufacturer shall include in its

23-32  certification pursuant to this section a list of its brand families.

23-33  The participating manufacturer shall update that list at least 30

23-34  calendar days before it adds to or modifies its brand families by

23-35  executing and delivering a supplemental certification to the

23-36  Attorney General and the Department.

23-37     (b) A nonparticipating manufacturer shall, in its certification

23-38  pursuant to this section:

23-39         (1) Include:

23-40             (I) A list of all of its brand families and the number of

23-41  units sold for each brand family that were sold in the State during

23-42  the preceding calendar year; and

23-43             (II) A list of all of its brand families that have been sold

23-44  in the State at any time during the current calendar year;

24-1          (2) Indicate, by an asterisk, any brand family sold in the

24-2  State during the preceding calendar year that is no longer being

24-3  sold in the State as of the date of the certification; and

24-4          (3) Identify, by name and address, any other manufacturer

24-5  of those brand families in the preceding or current calendar

24-6  year.

24-7  A nonparticipating manufacturer shall update the information

24-8  required by this paragraph at least 30 calendar days before it adds

24-9  to or modifies its brand families by executing and delivering a

24-10  supplemental certification to the Attorney General and the

24-11  Department.

24-12     3.  In addition to the requirements of subsection 2, the

24-13  certification of a nonparticipating manufacturer pursuant to this

24-14  section must certify:

24-15     (a) That the nonparticipating manufacturer is registered to do

24-16  business in the State or has appointed a resident agent for service

24-17  of process and provided notice thereof as required by section 68 of

24-18  this act;

24-19     (b) That the nonparticipating manufacturer has:

24-20         (1) Established and continues to maintain a qualified

24-21  escrow fund; and

24-22         (2) Executed a qualified escrow agreement governing the

24-23  qualified escrow fund that has been reviewed and approved by the

24-24  Attorney General;

24-25     (c) That the nonparticipating manufacturer is in full

24-26  compliance with NRS 370A.130 to 370A.160, inclusive, and any

24-27  regulations adopted pursuant thereto;

24-28     (d) The name, address and telephone number of the financial

24-29  institution where the nonparticipating manufacturer has

24-30  established the qualified escrow fund required pursuant to NRS

24-31  370A.130 to 370A.160, inclusive, and any regulations adopted

24-32  pursuant thereto;

24-33     (e) The account number of that qualified escrow fund and any

24-34  sub-account number for this state;

24-35     (f) The amount the nonparticipating manufacturer placed in

24-36  that qualified escrow fund for cigarettes sold in the State during

24-37  the preceding calendar year, the date and amount of each such

24-38  deposit, and such evidence or verification as may be deemed

24-39  necessary by the Department to confirm the information required

24-40  by this paragraph; and

24-41     (g) The amount and date of any withdrawal or transfer of

24-42  money the nonparticipating manufacturer made at any time from

24-43  that qualified escrow fund or from any other qualified escrow

24-44  fund into which it ever made escrow payments pursuant to NRS

25-1  370A.130 to 370A.160, inclusive, and any regulations adopted

25-2  pursuant thereto.

25-3      Sec. 66.  A manufacturer of tobacco products:

25-4      1.  Shall not include a brand family in its certification

25-5  pursuant to section 65 of this act unless, if the manufacturer is:

25-6      (a) A participating manufacturer, the manufacturer affirms

25-7  that the brand family is to be deemed to be its cigarettes for

25-8  purposes of calculating its payments under the Master Settlement

25-9  Agreement for the relevant year, in the volume and shares

25-10  determined pursuant to the Master Settlement Agreement; or

25-11     (b) A nonparticipating manufacturer, the manufacturer

25-12  affirms that the brand family is to be deemed to be its cigarettes

25-13  for purposes of NRS 370A.130 to 370A.160, inclusive.

25-14  This subsection must not be construed as limiting or otherwise

25-15  affecting the right of the State to maintain that a brand family

25-16  constitutes cigarettes of a different manufacturer of tobacco

25-17  products for purposes of calculating payments under the Master

25-18  Settlement Agreement or for purposes of NRS 370A.130 to

25-19  370A.160, inclusive.

25-20     2.  Shall maintain all invoices and documentation of sales and

25-21  any other information relied upon by the manufacturer for its

25-22  certification pursuant to section 65 of this act, for at least 5 years,

25-23  unless the manufacturer is otherwise required by law to maintain

25-24  them for a greater period.

25-25     Sec. 67.  1.  The Department shall create and maintain on

25-26  its Internet website and otherwise make available for public

25-27  inspection a directory that lists, except as otherwise provided in

25-28  sections 58 to 72, inclusive, of this act, all manufacturers of

25-29  tobacco products that have provided current and accurate

25-30  certifications conforming to the requirements of sections 58 to 72,

25-31  inclusive, of this act and all brand families that are listed in those

25-32  certifications. The Department:

25-33     (a) Shall not include or retain in the directory the name or

25-34  brand families of any nonparticipating manufacturer that has

25-35  failed to provide the required certification or whose certification

25-36  the Department determines is not in compliance with sections 58

25-37  to 72, inclusive, of this act, unless the Department has determined

25-38  that such violation has been cured to its satisfaction.

25-39     (b) Shall not include or retain in the directory a manufacturer

25-40  of tobacco products or brand family if the Department concludes,

25-41  for a nonparticipating manufacturer, that:

25-42         (1) Any escrow payment required pursuant to NRS

25-43  370A.130 to 370A.160, inclusive, for any period for any brand

25-44  family, whether or not listed by the nonparticipating

25-45  manufacturer, has not been fully paid into a qualified escrow fund

26-1  governed by a qualified escrow agreement which has been

26-2  approved by the Attorney General; or

26-3          (2) Any outstanding final judgment, including any interest

26-4  thereon, for a violation of NRS 370A.130 to 370A.160, inclusive,

26-5  has not been fully satisfied for that manufacturer or brand family.

26-6      2.  The Department shall update the directory as necessary to

26-7  correct mistakes and to add or remove a manufacturer of tobacco

26-8  products or brand family to keep the directory in conformity with

26-9  the requirements of sections 58 to 72, inclusive, of this act.

26-10     3.  Any determination of the Department not to include in or

26-11  to remove from the directory a manufacturer of tobacco products

26-12  or brand family is a final decision for the purposes of judicial

26-13  review.

26-14     Sec. 68.  1.  Any nonresident or foreign nonparticipating

26-15  manufacturer that has not registered to do business in the State as

26-16  a foreign corporation or other business entity must, as a condition

26-17  precedent to having its brand families included or retained in the

26-18  directory, appoint and continually engage without interruption the

26-19  services of an agent in this state to act as its agent for the service

26-20  of process on whom all process, in any action or proceeding

26-21  against it concerning or arising out of the enforcement of this

26-22  chapter, may be served in any manner authorized by law. Such

26-23  service constitutes legal and valid service of process on the

26-24  nonparticipating manufacturer. The nonparticipating

26-25  manufacturer shall provide the name, address, phone number and

26-26  proof of the appointment and availability of such agent to and to

26-27  the satisfaction of the Attorney General and the Department.

26-28     2.  A nonparticipating manufacturer shall provide notice to

26-29  the Attorney General and the Department at least 30 calendar days

26-30  before the termination of the authority of an agent appointed

26-31  pursuant to this section and shall provide proof to the satisfaction

26-32  of the Attorney General and the Department of the appointment of

26-33  a new agent not less than 5 calendar days before the termination

26-34  of appointment of an existing agent. If an agent terminates his

26-35  appointment as an agent, the nonparticipating manufacturer shall

26-36  notify the Attorney General and the Department of that

26-37  termination within 5 calendar days and include with that

26-38  notification proof to the satisfaction of the Attorney General and

26-39  the Department of the appointment of a new agent.

26-40     3.  Any nonparticipating manufacturer whose cigarettes are

26-41  sold in this state and who has not appointed and engaged an agent

26-42  as required by this section shall be deemed to have appointed the

26-43  Secretary of State as such agent and may be proceeded against in

26-44  courts of this state by service of process upon the Secretary of

26-45  State, except that the appointment of the Secretary of State as such

27-1  agent does not satisfy the condition precedent for having the brand

27-2  families of the nonparticipating manufacturer included or

27-3  retained in the directory.

27-4      Sec. 69.  1.  Not later than 20 calendar days after the end of

27-5  each calendar quarter, and more frequently if so directed by the

27-6  Department, each distributor shall submit such information as the

27-7  Department requires to facilitate compliance with the provisions of

27-8  sections 58 to 72, inclusive, of this act, including, without

27-9  limitation, a list by brand family of the total number of cigarettes

27-10  or, in the case of “roll-your-own” tobacco, the equivalent unit

27-11  count, for which the distributor affixed stamps during the previous

27-12  calendar quarter or otherwise paid the tax due for those cigarettes.

27-13  The distributor shall maintain for at least 5 years, and make

27-14  available to the Department, all invoices and documentation of

27-15  sales of all cigarettes of nonparticipating manufacturers and any

27-16  other information relied upon in reporting to the Department.

27-17     2.  The Department may disclose to the Attorney General any

27-18  information received pursuant to sections 58 to 72, inclusive, of

27-19  this act and requested by the Attorney General for purposes

27-20  of determining compliance with and enforcing the provisions of

27-21  sections 58 to 72, inclusive, of this act. The Department and

27-22  Attorney General shall share with each other the information

27-23  received pursuant to the provisions of sections 58 to 72, inclusive,

27-24  of this act, and may share such information with other federal,

27-25  state or local agencies only for purposes of enforcement of those

27-26  provisions, the provisions of NRS 370A.130 to 370A.160,

27-27  inclusive, or the corresponding laws of other states.

27-28     3.  The Department may require at any time from a

27-29  nonparticipating manufacturer proof, from the financial

27-30  institution in which that manufacturer has established a qualified

27-31  escrow fund for the purpose of compliance with NRS 370A.130 to

27-32  370A.160, inclusive, of the amount of money in that fund,

27-33  exclusive of interest, the amount and date of each deposit to that

27-34  fund, and the amount and date of each withdrawal from that fund.

27-35     4.  In addition to the information otherwise required to be

27-36  submitted pursuant to sections 58 to 72, inclusive, of this act, the

27-37  Department may require a distributor or manufacturer of tobacco

27-38  products to submit any additional information, including, without

27-39  limitation, samples of the packaging or labeling of each brand

27-40  family, as is necessary to enable the Department to determine

27-41  whether a manufacturer of tobacco products is in compliance with

27-42  the provisions of sections 58 to 72, inclusive, of this act.

27-43     5.  Every distributor shall provide to the Department and

27-44  update as necessary an electronic mail address for receiving any

28-1  notifications as may be required to carry out sections 58 to 72,

28-2  inclusive, of this act.

28-3      Sec. 70.  1.  To promote compliance with the provisions of

28-4  NRS 370A.140, the Department may adopt regulations requiring a

28-5  manufacturer of tobacco products to make the escrow deposits

28-6  required by NRS 370A.140 in quarterly installments during the

28-7  year in which the sales covered by those deposits are made. The

28-8  Department may require the production of information sufficient

28-9  to enable the Department to determine the adequacy of the amount

28-10  of each quarterly installment.

28-11     2.  The Department may adopt such regulations it deems

28-12  necessary to carry out the provisions of sections 58 to 72,

28-13  inclusive, of this act.

28-14     Sec. 71.  1.  It is unlawful for any person to:

28-15     (a) Affix a stamp to a package or other container of cigarettes

28-16  of a manufacturer of tobacco products or brand family which is

28-17  not included in the directory; or

28-18     (b) Sell, or offer or possess for sale, in this state cigarettes of a

28-19  manufacturer of tobacco products or brand family not included in

28-20  the directory.

28-21     2.  A person who violates any of the provisions of subsection 1

28-22  is guilty of a gross misdemeanor.

28-23     3.  In addition to any other penalty authorized by law, the

28-24  Department may impose on each person who violates any

28-25  provision of subsection 1 a civil penalty for each such violation of

28-26  not more than $5,000 or 500 percent of the retail value of the

28-27  cigarettes involved in the violation, whichever is greater.

28-28     4.  Any violation of subsection 1 constitutes a deceptive trade

28-29  practice for the purposes of NRS 598.0903 to 598.0999, inclusive.

28-30     5.  For the purposes of this section, each stamp affixed to and

28-31  each sale or offer to sell cigarettes in violation of subsection 1

28-32  constitutes a separate violation.

28-33     Sec. 72.  1.  The Attorney General, on behalf of the

28-34  Department, may bring an action in the district court of this state

28-35  to:

28-36     (a) Enjoin any threatened or actual violation of the provisions

28-37  of sections 58 to 72, inclusive, of this act by a distributor and to

28-38  compel the distributor to comply with those provisions; or

28-39     (b) Enforce any of the provisions of sections 58 to 72,

28-40  inclusive, of this act.

28-41     2.  In any action brought by the State to enforce the provisions

28-42  of sections 58 to 72, inclusive, of this act, the State is entitled to

28-43  recover any costs of investigation, expert witness fees, costs of the

28-44  action and reasonable attorney fees.

29-1      3.  If a court determines that any person has violated any of

29-2  the provisions of sections 58 to 72, inclusive, of this act, the court

29-3  shall order any profits, gain, gross receipts or other benefit from

29-4  the violation to be disgorged and paid to the State Treasurer for

29-5  deposit in the State General Fund.

29-6      4.  The remedies and penalties provided in sections 58 to 72,

29-7  inclusive, of this act are cumulative to each other and to the

29-8  remedies and penalties available under any other law of this state.

29-9      Sec. 73.  NRS 370A.150 is hereby amended to read as follows:

29-10     370A.150  A manufacturer of tobacco products that deposits

29-11  money into escrow pursuant to subsection 2 of NRS 370A.140

29-12  [shall] is entitled to receive the interest or other appreciation on the

29-13  deposit as earned. The principal of the deposit may be released from

29-14  escrow only under the following circumstances:

29-15     1.  To pay a judgment or settlement on a released claim brought

29-16  against that manufacturer by this state or by a releasing party located

29-17  or residing in this state. Money may be released from escrow under

29-18  this subsection only in the order in which it was deposited into

29-19  escrow and only to the extent and at the time necessary to make

29-20  payments required under the judgment or settlement.

29-21     2.  To the extent that the manufacturer establishes that the

29-22  amount it was required to deposit into escrow in a particular year on

29-23  account of units sold in this state was greater than [this state’s

29-24  allocable share of the total payments that the manufacturer would

29-25  have been required to make in] the amount required for that year

29-26  under the Master Settlement Agreement , as determined pursuant to

29-27  section IX(i) of that Agreement after the final determination of all

29-28  adjustments the manufacturer would have been required to make

29-29  on account of those units if the manufacturer had been a

29-30  participating manufacturer, [as such payments are determined

29-31  pursuant to section IX(i)(2) of that Agreement and before any of the

29-32  adjustments or offsets described in section IX(i)(3) of that

29-33  Agreement other than the inflation adjustment,] the excess must be

29-34  released from escrow and revert to the manufacturer.

29-35     3.  To the extent not released from escrow under subsection 1 or

29-36  2, deposits must be released from escrow and revert to the

29-37  manufacturer 25 years after the date on which they were deposited.

29-38     Sec. 74.  1.  The first report required by section 69 of this act

29-39  is due on or before October 20, 2003.

29-40     2.  Notwithstanding the provisions of section 65 of this act, the

29-41  initial certifications required by that section are due on or before

29-42  November 15, 2003.

29-43     3.  The Department of Taxation shall create and make available

29-44  for public inspection the directory required pursuant to section 67 of

29-45  this act on or before December 31, 2003.

30-1      Sec. 75.  1.  This section and sections 1 to 70, inclusive, 72,

30-2  73 and 74 of this act become effective:

30-3      (a) Upon passage and approval for the purposes of adopting

30-4  regulations and taking such other actions as are necessary to carry

30-5  out the provisions of this act; and

30-6      (b) On October 1, 2003, for all other purposes.

30-7      2.  Section 71 of this act becomes effective on January 1, 2004.

 

30-8  H