Session of 1999
SENATE BILL No. 239
By Committee on Federal and State Affairs
2-4
9 AN ACT concerning cigarettes and tobacco products; relating to the sale
10 and distribution thereof; amending K.S.A. 79-3313, 79-3321 and 79-
11 3326 and K.S.A. 1998 Supp. 79-3322 and repealing the existing
12 sections.
13
14 Be it enacted by the Legislature of the State of Kansas:
15 Section 1. K.S.A. 79-3313 is hereby amended to read as follows: 79-
16 3313. All cigarettes sold in this state shall be in packages, and each of the
17 packages shall bear evidence of payment of the tax thereon except that
18 any railroad or sleeping car company licensed as a retailer is hereby au-
19 thorized to sell cigarettes upon its cars without affixing stamps to the
20 packages of cigarettes provided that monthly reports and payment of the
21 tax due is made directly to the director in the manner and under the
22 terms provided for by the director. In addition, manufacturers are hereby
23 authorized to distribute in the state, through their authorized represen-
24 tatives or wholesale dealers, free sample packages of cigarettes containing
25 less than 20 cigarettes without affixing stamps to the packages provided
26 that monthly reports and payment of a tax at the rates prescribed by law
27 are made directly to the director. No wholesale dealer or manufacturers'
28 authorized representatives shall sell or distribute cigarettes, except free
29 sample packages, to any person in the state of Kansas not holding a
30 dealer's license as provided in this act. Such packages of sample cigarettes
31 shall bear the word "sample" or "not for sale" and "state tax paid" in
32 letters easily read.
33 Whenever the director shall have reason to believe that any manufac-
34 turer has violated the provisions of this section or the conditions provided
35 by the director, the director shall conduct a hearing thereon in accordance
36 with the provisions of the Kansas administrative procedure act in the
37 office of the director at Topeka. If upon the basis of such hearing it
38 appears to the satisfaction of the director that such manufacturer has
39 violated any of the provisions of this section or the conditions provided
40 by the director, the director is hereby authorized to suspend or revoke
41 the authorization to the manufacturer for such period as the director
42 determines is necessary but in no case for more than one year.
43 Sec. 2. K.S.A. 79-3321 is hereby amended to read as follows: 79-
44 3321. It shall be unlawful for any person:
45 (a) To possess, except as otherwise specifically provided by this act,
46 more than 200 cigarettes without the required tax indicia being affixed as
47 herein provided.
48 (b) To mutilate or attach to any individual package of cigarettes any
49 stamp that has in any manner been mutilated or that has been heretofore
50 attached to a different individual package of cigarettes or to have in pos-
51 session any stamps so mutilated.
52 (c) To prevent the director or any officer or agent authorized by law,
53 to make a full inspection for the purpose of this act, of any place of
54 business and all premises connected thereto where cigarettes are or may
55 be manufactured, sold, distributed, or given away.
56 (d) To use any artful device or deceptive practice to conceal any vi-
57 olation of this act or to mislead the director or officer or agent authorized
58 by law in the enforcement of this act.
59 (e) Who is a dealer to fail to produce on demand of the director or
60 any officer or agent authorized by law any records or invoices required
61 to be kept by such person.
62 (f) Knowingly to make, use, or present to the director or agent thereof
63 any falsified invoice or falsely state the nature or quantity of the goods
64 therein invoiced.
65 (g) Who is a dealer to fail or refuse to keep and preserve for the time
66 and in the manner required herein all the records required by this act to
67 be kept and preserved.
68 (h) To wholesale cigarettes to any person, other than a manufacturer's
69 salesperson, retail dealer or wholesaler who is:
70 (1) Duly licensed by the state where such manufacturer's salesperson,
71 retail dealer or wholesaler is located,; or
72 (2) exempt from state licensing under applicable state or federal laws
73 or court decisions including any such person operating as a retail dealer
74 upon land allotted to or held in trust for an Indian tribe recognized by
75 the United States bureau of Indian affairs.
76 (i) To have in possession any evidence of tax indicia provided for
77 herein not purchased from the director.
78 (j) To fail or refuse to permit the director or any officer or agent
79 authorized by law to inspect a carrier transporting cigarettes.
80 (k) To vend small cigars, or any products so wrapped as to be con-
81 fused with cigarettes, from a machine vending cigarettes, nor shall a vend-
82 ing machine be so built to vend cigars or products that may be confused
83 with cigarettes, be attached to a cigarette vending machine.
84 (l) To sell, furnish or distribute cigarettes or tobacco products to any
85 person under 18 years of age.
86 (m) Who is under 18 years of age to purchase or attempt to purchase
87 cigarettes or tobacco products.
88 (n) Who is under 18 years of age to possess or attempt to possess
89 cigarettes or tobacco products.
90 (o) To sell cigarettes to a retailer or at retail that do not bear Kansas
91 tax indicia or upon which the Kansas cigarette tax has not been paid.
92 (p) To sell cigarettes without having a license for such sale as provided
93 herein.
94 (q) To sell a vending machine without having a vending machine dis-
95 tributor's license.
96 (r) Who is a retail dealer to fail to post and maintain in a conspicuous
97 place in the dealer's establishment the following notice: "By law, ciga-
98 rettes and tobacco products may be sold only to persons 18 years of age
99 and older."
100 (s) To distribute samples within 500 feet of any school when such
101 facility is being used primarily by persons under 18 years of age unless
102 the sampling is: (1) In an area to which persons under 18 years of age are
103 denied access; (2) in or at a retail location where cigarettes and tobacco
104 products are the primary commodity offered for sale at retail; or (3) at or
105 adjacent to an outdoor production, repair or construction site or facility
106 of cigarettes or tobacco products.
107 (t) To sell cigarettes or tobacco products by means of a vending ma-
108 chine in any establishment, or portion of an establishment, which is open
109 to minors, except that this subsection shall not apply to:
110 (1) The installation and use by the proprietor of the establishment,
111 or by the proprietor's agents or employees, of vending machines behind
112 a counter, or in some place in such establishment, or portion thereof, to
113 which minors are prohibited by law from having access;
114 (2) the installation and use of a vending machine in a commercial
115 building or industrial plant, or portions thereof, where the public is not
116 customarily admitted and where machines are intended for the sole use
117 of adult employees employed in the building or plant; or
118 (3) a vending machine which has a lock-out device which is inoper-
119 able in the continuous standby mode and which requires manual activa-
120 tion by the person supervising the operation of the machine each time
121 cigarettes or tobacco products are purchased from this machine.
122 Sec. 3. K.S.A. 1998 Supp. 79-3322 is hereby amended to read as
123 follows: 79-3322. (a) Except as otherwise provided by this act, any person
124 who violates any of the provisions of this act, except as otherwise provided
125 in this act, shall be guilty of a misdemeanor and upon conviction shall be
126 punished by a fine of not more than $1,000 or imprisonment for not more
127 than one year, or by both. In addition thereto, any person found liable
128 for any license fee or tax imposed under the provisions of this act shall
129 be personally liable personally for such license fee or tax plus a penalty
130 in an amount equal to 100% thereof.
131 (b) (1) It is a class B person misdemeanor punishable by a minimum
132 fine of $200 for any person to: (A) Sell, give or furnish any cigarettes or
133 tobacco products to any person under 18 years of age; or (B) buy any
134 cigarettes or tobacco products for any person under 18 years of age.
135 (2) It shall be a defense to a prosecution under this subsection if: (A)
136 The defendant is a licensed retail dealer, or employee thereof, or a person
137 authorized by law to distribute samples; (B) the defendant sold, furnished
138 or distributed the cigarettes or tobacco products to the person under 18
139 years of age with reasonable cause to believe the person was of legal age
140 to purchase or receive cigarettes or tobacco products; and (C) to purchase
141 or receive the cigarettes or tobacco products, the person under 18 years
142 of age exhibited to the defendant a driver's license, Kansas nondriver's
143 identification card or other official or apparently official document con-
144 taining a photograph of the person and purporting to establish that the
145 person was of legal age to purchase or receive cigarettes or tobacco
146 products.
147 (3) It shall be a defense to a prosecution under this subsection if: (A)
148 The defendant engages in the lawful sale, furnishing or distribution of
149 cigarettes or tobacco products by mail; and (B) the defendant sold, fur-
150 nished or distributed the cigarettes or tobacco products to the person by
151 mail only after the person had provided to the defendant an unsworn
152 declaration, conforming to K.S.A. 53-601, and amendments thereto, that
153 the person was 18 or more years of age.
154 (4) For purposes of this subsection the person who violates this sub-
155 section shall be the individual directly selling, furnishing or distributing
156 the cigarettes or tobacco products to any person under 18 years of age or
157 the retail dealer who has actual knowledge of such selling, furnishing or
158 distributing by such individual or both.
159 (c) Violation of subsection (m) or (n) of K.S.A. 79-3321, and amend-
160 ments thereto, is a cigarette or tobacco infraction for which the fine is
161 $25. In addition, the judge may require the juvenile to appear in court
162 with a parent or legal guardian.
163 (d) Any agent, employees or others who aid, abet or otherwise par-
164 ticipate in any way in the violation of this act or in any of the offenses
165 hereunder punishable shall be guilty and punished as principals to the
166 same extent as any person violating this act.
167 Sec. 4. K.S.A. 79-3326 is hereby amended to read as follows: 79-3326.
168 The director of taxation shall administer and enforce the provisions of
169 this act. The secretary of revenue shall adopt rules and regulations for
170 the administration of this act. For the purpose of enforcing this act, the
171 director may call to the director's aid any law enforcement officer of this
172 state to prosecute all violators of any of the provisions of this act. The
173 police of any city shall have the right to inspect all premises, records and
174 invoices pertaining to the wholesale distribution, or retail sale or sampling
175 of cigarettes or tobacco products within the city at all reasonable times.
176 All agents and representatives designated by the director are hereby in-
177 vested with all the powers of peace and police law enforcement officers
178 within the state of Kansas in the enforcement of the provisions of this act
179 throughout the state.
180 Sec. 5. K.S.A. 79-3313, 79-3321 and 79-3326 and K.S.A. 1998 Supp.
181 79-3322 are hereby repealed.
182 Sec. 6. This act shall take effect and be in force from and after its
183 publication in the statute book.