§ 525.06. Tobacco usage restrictions.

(a)

Sale or gift of tobacco to persons under 18 years of age. No person or business entity may sell, give or furnish, or cause to be sold, given or furnished, to any person under the age of 18 years:

(1)

Any cigarette, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product; or

(2)

Any cigar, pipe, snuff, chewing tobacco or tobacco product, in any form.

Any person, firm or corporation violating any of the provisions of subsection (a)(1) or (2) of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $10.00 nor more than $25.00 for the first offense, and for each subsequent offense, not less than $25.00 or more than $300.00.

(b)

Possession of tobacco or tobacco products by persons under the age of 18 years; penalty. No person under the age of 18 years shall have on or about his person or premises for use, any cigarette, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco products, in any form; or, any pipe snuff, chewing tobacco or tobacco product. Any person violating the provisions of this subsection (b) is punishable by a fine not less than $5.00 nor more than $75.00, plus court costs, or eight hours of community service. Municipal Court shall have concurrent jurisdiction.

(c)

Use of tobacco products in public schools prohibited; penalty. Every person who shall smoke a cigarette or cigarettes, pipe, cigar or other implement, of any type or nature, designed, used or employed for smoking any tobacco or tobacco product; or who shall use any tobacco product, whether chewing tobacco, snuff or otherwise, in any building or part thereof used for instructional purposes, in any school of this state, as defined in W. Va. Code, § 18-1-1, or on any lot or grounds actually used for instructional purposes of any such school of this state while such school is used or occupied for school purposes, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished for the first offense by a fine of not more than $5.00, plus court costs, or eight hours of community service. For each subsequent offense a fine of $5.00, plus court costs, or 40 hours of community service. Municipal court shall have concurrent jurisdiction.

(d)

Enforcement of youth smoking laws; retail tobacco outlet inspections; use of minors in inspections; annual reports; penalties; defenses

(1)

The commissioner of the West Virginia alcohol beverage control administration, the superintendent of the West Virginia state police, the sheriffs of the counties of this State and the chiefs of police of municipalities of this State, may periodically conduct unannounced inspections at locations where tobacco products are sold or distributed to ensure compliance with the provisions of W. Va. Code, §§ 16-9A-2 and 16-9A-3, and in such manner as to conform with applicable Federal and State laws, rules and regulations. Persons under the age of 18 years may be enlisted by such commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof to test compliance with these sections. Provided, that the minors may be used to test compliance only if the testing is conducted under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and written consent of the parent or guardian of such person is first obtained and such minors shall not be in violation of W. Va. Code, § 16-9A-3, when acting under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and with the written consent of the parent or guardian. It is unlawful for any person to use persons under the age of 18 years to test compliance in any manner not set forth herein and the person so using a minor is guilty of a misdemeanor and, upon conviction thereof, shall be fined the same amounts as set forth in W. Va. Code, § 16-9A-2, except as otherwise provided by law.

(2)

A person charged with a violation of section W. Va. Code, § 16-9A-2 or 16-9A-3, as the result of an inspection under subsection (d)(1) of this section has a complete defense if, at the time the cigarette or other tobacco product or cigarette wrapper was sold, delivered, bartered, furnished or given:

a.

The buyer or recipient falsely evidenced that he was 18 years of age or older;

b.

The appearance of the buyer or recipient was such that a prudent person would believe the buyer or recipient to be 18 years of age or older; and

c.

Such person carefully checked a driver's license or an identification card issued by this State or another state of the United States, a passport or a United States armed services identification card presented by the buyer or recipient and acted in good faith and in reliance upon the representation and appearance of the buyer or recipient in the belief that the buyer or recipient was 18 years of age or older.

(3)

Any fine collected after a conviction of violating W. Va. Code, § 16-9A-2, shall be paid to the clerk of the court in which the conviction was obtained. Provided, that the clerk of the court upon receiving the fine shall promptly notify the Commissioner of the West Virginia Alcohol Beverage Control Administration of the conviction and the collection of the fine. Provided, however, that any community service penalty imposed after a conviction of violating W. Va. Code, § 16-9A-3, shall be recorded by the clerk of the court in which the conviction was obtained. Provided further, that the clerk of the court upon being advised that community service obligations have been fulfilled shall promptly notify the Commissioner of the West Virginia Alcohol Beverage Control Administration of the conviction and the satisfaction of imposed community service penalty.

(4)

The commissioner of the West Virginia alcohol Beverage Control Administration or his designee shall prepare and submit to the Governor on the last day of September of each year a report of the enforcement and compliance activities undertaken pursuant to this section and the results of the same, with a copy to the secretary of the West Virginia department of health and human resources. The report shall be in the form and substance that the Governor shall submit to the applicable State and Federal programs.

(Code 1991, § 525.06; Ord. of 1-2-2001; Ord. of 6-7-2004)