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Chapter 262-A: RETAIL TOBACCO SALES (HEADING: ENACTED BY PL 1995, c. 470, @9)

Subchapter 1: RETAIL TOBACCO LICENSES (HEADING: PL 1995, c. 470, @9 (new))

§1551. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings. [1995, c. 470, §9 (new); §19 (aff).]

1. Cigarette paper. "Cigarette paper" means those papers or paper-like products used to roll cigarettes, which by advertising, design or use facilitate the use of tobacco or other products for inhalation.

[1995, c. 470, §9 (new); §19 (aff).]

1-A. Consumer. "Consumer" means an individual who purchases, receives or possesses tobacco products for personal consumption and not for resale.

[2003, c. 444, §1 (new).]

1-B. Delivery sale. "Delivery sale" means a sale of tobacco products to a consumer in this State when:

A. The purchaser submits the order for the sale by means of telephonic or other electronic method of voice transmission, the Internet or any delivery service; or

[2003, c. 444, §1 (new).]

B. The tobacco products are delivered by use of a delivery service.

[2003, c. 444, §1 (new).]

A sale to a person who is not licensed as a tobacco distributor or tobacco retailer is a delivery sale.

[2003, c. 444, §1 (new).]

1-C. Delivery service. "Delivery service" means a person, including the United States Postal Service, who is engaged in the commercial delivery of letters, packages or other containers.

[2003, c. 444, §1 (new).]

2. Juvenile. "Juvenile" means any individual who is younger than 18 years of age.

[1995, c. 470, §9 (new); §19 (aff).]

2-A. Person. "Person" means an individual, corporation, partnership or unincorporated association.

[2003, c. 444, §1 (new).]

2-B. Tobacco distributor. "Tobacco distributor" or "distributor" means a person licensed as a distributor under Title 36, chapter 704.

[2003, c. 444, §1 (new).]

3. Tobacco products. "Tobacco products" includes any form of tobacco and any material or device used in the smoking, chewing or other form of tobacco consumption, including cigarette papers and pipes.

[1995, c. 470, §9 (new); §19 (aff).]

3-A. Tobacco retailer. "Tobacco retailer" or "retailer" means a person located within or outside the State who sells tobacco products to a person in the State for personal consumption.

[2003, c. 444, §1 (new).]

4. Vending machine. "Vending machine" means any automated, self-service device that upon insertion of money, tokens or any other form of payment, dispenses cigarettes or any other tobacco product.

[1995, c. 470, §9 (new); §19 (aff).]

§1551-A. Retail tobacco sales license required

1. Retail tobacco license. It is unlawful for any person, partnership or corporation that engages in retail sales, including retail sales through vending machines or in free distribution of tobacco products, to sell, keep for sale or give away in the course of trade any tobacco products to anyone without first obtaining a retail tobacco license from the department, in accordance with this chapter.

[1995, c. 470, §9 (new); §19 (aff).]

2. Violation; penalty. Penalties for violation of subchapters I and II are in accordance with those subchapters.

[1995, c. 470, §9 (new); §19 (aff).]

3. Enforcement. The department shall enforce this chapter in cooperation with all law enforcement officers.

[1995, c. 470, §9 (new); §19 (aff).]

4. Publish laws and rules. Every 4 years the department shall publish a compilation of laws and rules concerning retail tobacco sales.

A. The department shall supply a copy of the compilation of laws and rules to every new tobacco retail sales licensee at no charge. The department may charge a reasonable fee for that compilation to cover the cost of producing the compilation to persons other than licensees.

[1995, c. 470, §9 (new); §19 (aff).]

B. The department shall notify all licensees of changes in the tobacco laws and rules within 90 days of adjournment of each regular session of the Legislature.

(1) The department shall supply a copy of the new laws and rules at no charge when requested by licensees.

(2) The department shall supply a copy of the new laws and rules to persons other than licensees for a reasonable fee.

[1995, c. 470, §9 (new); §19 (aff).]

5. Report. The department shall report annually to the Office of Substance Abuse the number of licenses granted, the number of violations processed and the penalties imposed, and any other information that the department and the office agree is necessary to fulfill the reporting requirements of this chapter.

[1995, c. 470, §9 (new); §19 (aff).]

§1552. Application procedure

1. Application process; license fees. An applicant for a one-time retail tobacco license shall file an application in the form required by the department. The department shall make provisions for applications under this section. The fee for a one-time retail tobacco license is set by the department at the actual cost of processing the application and issuing the license, up to but not exceeding $25. The applicant shall enclose the fee with the application for the license.

[1995, c. 470, §9 (new); §19 (aff).]

2. Term of license. All retail tobacco licenses are valid indefinitely unless suspended, revoked or not subject to the transfer under section 1553. Licenses that have been suspended or revoked may be reinstated, as permitted by the District Court decision issued under subchapter II, upon the receipt of an application for reinstatement and payment of all penalties and an application fee of $25.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

3. Multiple licenses. A licensee applying for licenses to operate more than one premises or more than one vending machine shall obtain a separate license for each premises and each machine and shall pay the fee prescribed for each premises and each machine.

[1995, c. 470, §9 (new); §19 (aff).]

4. Application fees. All application fees must be deposited in a nonlapsing account to be used by the department to defray administrative costs.

[1995, c. 470, §9 (new); §19 (aff).]

5. False answer given intentionally. A person who intentionally gives a false answer in an application for a retail tobacco license violates Title 17-A, section 453.

[1995, c. 470, §9 (new); §19 (aff).]

§1552-A. Display of license; notices

1. Display of licenses. A licensee shall publicly display the license on the premises and on each machine to which the license applies.

[1995, c. 470, §9 (new); §19 (aff).]

2. Display of prohibition against sales to juveniles. All licensees shall post notice of the prohibition on tobacco sales to juveniles pursuant to section 1555-B. Notices must be publicly and conspicuously displayed in the licensee's place of business in letters at least 3/8 inches high. Signs required by this section must be provided at cost by the department. Any person who violates this subsection commits a civil violation for which a forfeiture of not less than $50 nor more than $200 may be adjudged for any one offense.

[1997, c. 305, §1 (amd).]

§1553. Transfer of licenses; death; bankruptcy; receivership; guardianship; corporations

Except as otherwise provided in this section, a license or any interest in a license may not be sold, transferred, assigned or otherwise subjected to control by any person other than the licensee. If the business or any interest in the business connected with a licensed activity is sold, transferred or assigned, the license holder shall send immediately to the department the license and a sworn statement showing the name and address of the purchaser. [1995, c. 470, §9 (new); §19 (aff).]

1. Transfer within same municipality. Upon receipt of a written application, the department may transfer any retail tobacco license from one place to another within the same municipality. A transfer may not be made to a premises for which a license could not have been originally legally issued.

[1995, c. 470, §9 (new); §19 (aff).]

2. Death, bankruptcy or receivership. In the case of death, bankruptcy or receivership of any licensee, the executor or administrator of the deceased licensee, the trustee or receiver of the bankrupt licensee or the licensee in receivership may retain the license.

A. For the benefit of the estate of the deceased licensee, the personal representative, receiver or trustee of the estate may operate the premises alone or through a manager for one year from the date of appointment.

(1) A new license application must be submitted at the end of the one-year grace period.

(2) Within one year from the date of appointment, the original license becomes void and must be returned to the department for cancellation.

(3) Any suspension or revocation of the license by the District Court for any violation applies to the manager or the personal representative, receiver or trustee of the estate.

(4) A personal representative, receiver or trustee of an estate or a duly appointed manager may not operate under the license unless approved by the department.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

B. If a licensee dies, the following persons, with the written approval of the department, may continue to operate under the license for not more than 60 days pending appointment of a personal representative of the estate:

(1) The surviving spouse;

(2) A person who has filed a petition for appointment as executor or administrator for the estate of the deceased licensee;

(3) The sole heir of the deceased licensee; or

(4) A person designated by all of the heirs of the deceased licensee.

[1995, c. 470, §9 (new); §19 (aff).]

C. When administration of the estate of a deceased licensee is not contemplated, the surviving spouse or person designated by all the heirs of the deceased licensee may take over the license under the same conditions as are provided for operation and transfer by an executor or an administrator.

[1995, c. 470, §9 (new); §19 (aff).]

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

3. Guardian; conservator. A duly appointed and qualified guardian or conservator of the estate of a licensee may take over and operate any license of the ward of the deceased licensee for a period not to exceed one year if the guardian or conservator or the guardian or conservator's managers are approved by the department.

A. A guardian or conservator must apply for a new license on the ward's behalf within one year of the guardian's or conservator's appointment, if the guardian or conservator intends to continue to sell tobacco products.

[1995, c. 470, §9 (new); §19 (aff).]

B. Penalties for violations apply to both guardians or conservators and guardians' or conservators' managers in the same manner as to executors or administrators and guardians' or conservators' managers in subsection 2, paragraph A, subparagraph (3).

[1995, c. 470, §9 (new); §19 (aff).]

4. Transfers. The following changes in a licensee's business are considered transfers under this section:

A. The sale or transfer of stock of a corporate licensee whose stock is not publicly traded that results in the sale or transfer of more than 10% of the shares of stock of the corporate licensee;

[1995, c. 593, §1 (amd).]

A-1. The sale or transfer of stock of a corporate licensee whose stock is publicly traded that results in the sale or transfer of more than 51% of the voting shares of the corporate licensee;

[1995, c. 593, §2 (new).]

B. The incorporation of a licensee's business or a change in the form of incorporation of a licensee's business;

[1995, c. 470, §9 (new); §19 (aff).]

C. The addition or deletion of a partner in a partnership; or

[1995, c. 470, §9 (new); §19 (aff).]

D. The merger or acquisition of a licensee that is incorporated.

[1995, c. 470, §9 (new); §19 (aff).]

[1995, c. 593, §§1, 2 (amd).]

§1553-A. Sales of tobacco products; vending machines

In addition to the tobacco license required in section 1551-A, the sale of cigarettes or any other tobacco product through a vending machine is subject to the following provisions. [1995, c. 470, §9 (new); §19 (aff).]

1. Vending requirements. When the sale of cigarettes or any other tobacco product is made from a vending machine the following is required.

A. Only cigarettes or any other tobacco products may be dispensed by that machine.

[1995, c. 470, §9 (new); §19 (aff).]

B. A sign must be affixed conspicuously to the front of the machine. The sign must:

(1) Contain lettering that is at least 3/8 inches in height; and

(2) State the following: "WARNING. It is unlawful for any person under the age of 18 to purchase cigarettes in this State."

[1995, c. 470, §9 (new); §19 (aff).]

C. At all times during the hours the vending machine is accessible, it must be located within the unobstructed line of sight and under the direct supervision of an adult. That adult is responsible for preventing persons under 18 years of age from purchasing cigarettes or any other tobacco product from that vending machine.

[1995, c. 470, §9 (new); §19 (aff).]

Vending machines may be located only in areas in which minors are allowed only when accompanied by an adult.

[1997, c. 305, §2 (amd).]

2. Penalty. Any person, firm or corporation, in control of a facility in which a vending machine is located, who violates this section commits a civil violation for which a forfeiture of not less than $100 nor more than $500 may be adjudged or for which the person, firm or corporation may be prohibited for a period of not more than 6 months from having a cigarette vending machine located on the premises or both.

[1995, c. 470, §9 (new); §19 (aff).]

Subchapter 2: PROHIBITED SALES, POSSESSION AND USE (HEADING: PL 1995, c. 470, @9 (new))

§1554. Sale without a valid license; crime; penalty (CONTAINS TEXT WITH VARYING EFFECTIVE DATES)

(WHOLE SECTION TEXT EFFECTIVE UNTIL 7/1/04)

Notwithstanding Title 17-A, section 4-A, any person who engages in retail tobacco sales or in free distribution of tobacco products in the ordinary course of trade in this State without a valid license commits a Class E crime and is subject to the following penalties. [1995, c. 470, §9 (new); §19 (aff).]

1. First offense. For the first offense, the penalty is a forfeiture of not less than $300 plus court costs and not more than $500 plus court costs. The forfeiture and costs may not be suspended. An additional penalty of not more than 30 days imprisonment may be imposed at the discretion of the court.

[1995, c. 470, §9 (new); §19 (aff).]

2. Second offense. For the 2nd offense, the penalty is a forfeiture of not less than $500 plus court costs and not more than $1,000 plus court costs. The forfeiture and costs may not be suspended. An additional penalty of not more than 60 days imprisonment may be imposed at the discretion of the court.

[1995, c. 470, §9 (new); §19 (aff).]

3. Subsequent offenses. For all subsequent offenses, the penalty is a forfeiture of not less than $1,000 plus court costs and 60 days imprisonment. The forfeiture, court costs and sentence may not be suspended. An additional penalty of 4 months imprisonment may be imposed at the discretion of the court.

22 §01554

Sale without a valid license; crime;

penalty

(WHOLE SECTION TEXT REPEALED 7/1/04 by PL 2003, c. 452, Pt. K, §4; Pt. X, §2 (aff))

[1995, c. 470, §9 (new); §19 (aff).]

§1554-A. Sale of unpackaged cigarettes (CONTAINS TEXT WITH VARYING EFFECTIVE DATES)

(WHOLE SECTION TEXT EFFECTIVE UNTIL 7/1/04)

1. Prohibition. A person may not sell cigarettes except in the original, sealed package in which they were placed by the manufacturer, which may not be smaller than 20 cigarettes per package, nor may a person sell cigarettes in smaller quantities than placed in the package by the manufacturer.

[1997, c. 305, §3 (amd).]

2. Penalty. A person who violates this section commits a civil violation for which a forfeiture of not less than $10 nor more than $100 may be adjudged. An employer of a person who violates this subsection commits a civil violation for which a forfeiture of not less than $100 nor more than $1,000 may be adjudged. In all cases of violations, the court shall impose a forfeiture that may not be suspended, except pursuant to Title 15, section 3314.

22 §01554-A

Sale of unpackaged cigarettes

(WHOLE SECTION TEXT EFFECTIVE 7/1/04)

[1995, c. 470, §9 (new); §19 (aff).]

1. Prohibition. A person may not:

A. Sell cigarettes except in the original sealed package in which they were placed by the manufacturer, which may not be smaller than 20 cigarettes per package; or

[2003, c. 452, Pt. K, §5 (new); Pt. X, §2 (aff).]

B. Sell cigarettes in smaller quantities than placed in the package by the manufacturer.

[2003, c. 452, Pt. K, §5 (new); Pt. X, §2 (aff).]

[2003, c. 452, Pt. K, §5 (rpr); Pt. X, §2 (aff).]

2. Penalty; employee. A person who violates this section commits a civil violation for which a fine of not less than $10 and not more than $100 may be adjudged. In all cases of violations, the court shall impose a fine that may not be suspended, except pursuant to Title 15, section 3314.

[2003, c. 452, Pt. K, §5 (rpr); Pt. X, §2 (aff).]

3. Penalty; employer. The employer of a person who violates this section commits a civil violation for which a fine of not less than $100 and not more than $1,000 may be adjudged. In all cases of violations, the court shall impose a fine that may not be suspended.

[2003, c. 452, Pt. K, §5 (new); Pt. X, §2 (aff).]

§1554-B. Sale without valid license; multiple violations; penalties (CONTAINS TEXT WITH VARYING EFFECTIVE DATES)

(WHOLE SECTION TEXT EFFECTIVE 7/1/04)

1. License required. A person may not engage in retail tobacco sales or in free distribution of tobacco products in the ordinary course of trade in this State without a valid license issued under subchapter 1.

[2003, c. 452, Pt. K, §6 (new); Pt. X, §2 (aff).]

2. Penalties. The following penalties apply to violations of this section.

A. A person who violates subsection 1 commits a Class E crime for which the court shall impose a sentencing alternative involving a fine of not less than $300 plus court costs and not more than $500 plus court costs. The fine and costs may not be suspended. The court also may impose a sentencing alternative involving a term of imprisonment of not more than 30 days.

[2003, c. 452, Pt. K, §6 (new); Pt. X, §2 (aff).]

B. A person who violates subsection 1 and, at the time of the violation, has one prior conviction for violating this section commits a Class E crime for which the court shall impose a sentencing alternative involving a fine of not less than $500 plus court costs and not more than $1,000 plus court costs. The fine and costs may not be suspended. The court also may impose a sentencing alternative involving a term of imprisonment of not more than 60 days.

[2003, c. 452, Pt. K, §6 (new); Pt. X, §2 (aff).]

C. A person who violates subsection 1 and, at the time of the violation, has 2 or more prior convictions for violating this section commits a Class E crime for which the court shall impose a sentencing alternative involving a fine of not less than $1,000 plus court costs and a term of imprisonment of 60 days. The fine, court costs and term of imprisonment may not be suspended. The court also may impose as a sentencing alternative an additional term of imprisonment of not more than 4 months.

[2003, c. 452, Pt. K, §6 (new); Pt. X, §2 (aff).]

3. Strict liability. Violation of this section is a strict liability crime as defined in Title 17-A, section 34, subsection 4-A.

[2003, c. 452, Pt. K, §6 (new); Pt. X, §2 (aff).]

4. Prior convictions. Title 17-A, section 9-A governs the use of prior convictions when determining a sentence.

[2003, c. 452, Pt. K, §6 (new); Pt. X, §2 (aff).]

§1555. Sales of tobacco products to juveniles (REPEALED)

§1555-A. Identification cards

A licensee may refuse to sell tobacco to any person who fails to display upon request an identification card issued under Title 29-A, section 1410 or a motor vehicle operator's license bearing the photograph of the operator and issued under Title 29-A. [1997, c. 437, §2 (amd).]

§1555-B. Sales of tobacco products (CONTAINS TEXT WITH VARYING EFFECTIVE DATES)

1. Retail sales. Tobacco products may be sold at retail only in a direct, face-to-face exchange in which the purchaser may be clearly identified and through the mail under procedures approved by the department to provide reliable verification that the purchaser is not a minor.

[1997, c. 305, §5 (new).]

2. Sales to minors prohibited. A person may not sell, furnish, give away or offer to sell, furnish or give away a tobacco product to any person under 18 years of age. Tobacco products may not be sold at retail to any person under 27 years of age unless the seller first verifies that person's age by means of reliable photographic identification containing the person's date of birth.

[1997, c. 305, §5 (new).]

3. Sales through vending machines. Tobacco products may be sold through vending machines according to section 1553-A.

[1997, c. 305, §5 (new).]

4. Wholesale sales. Tobacco products may be distributed at wholesale without a face-to-face exchange only in the normal course of trade and under procedures approved by the Bureau of Revenue Services to ensure that tobacco products are not provided to any person under 18 years of age.

[1997, c. 305, §5 (new); c. 526, §14 (amd).]

5. (TEXT EFFECTIVE UNTIL 7/1/04) Possession and use of cigarettes, cigarette papers or tobacco products; use of false identification by minors prohibited. Except as provided in paragraph A, a person under 18 years of age may not purchase, possess or use cigarettes, cigarette paper or any tobacco product or offer false identification in an attempt to purchase any tobacco products or to purchase, possess or use cigarettes, cigarette paper or any other tobacco product.

A. A person under 18 years of age may transport or permit to be transported in a motor vehicle cigarettes, cigarette paper or tobacco products in the original, sealed package in which they were placed by the manufacturer if the transportation is in the scope of that person's employment.

[1997, c. 578, §1 (new).]

[1997, c. 578, §1 (amd).]

5. (TEXT REPEALED 7/1/04) Possession and use of cigarettes, cigarette papers or tobacco products; use of false identification by minors prohibited.

[2003, c. 452, Pt. K, §7 (rp); Pt. X, §2 (aff).]

5-A. (TEXT EFFECTIVE 7/1/04) Possession and use of cigarettes, cigarette papers or tobacco products by minors prohibited. Except as provided in subsection 5-B, a person under 18 years of age may not:

A. Purchase, possess or use cigarettes, cigarette papers or any tobacco product;

[2003, c. 452, Pt. K, §8 (new); Pt. X, §2 (aff).]

B. Violate paragraph A after having previously violated this subsection; or

[2003, c. 452, Pt. K, §8 (new); Pt. X, §2 (aff).]

C. Violate paragraph A after having previously violated this subsection 2 or more times.

[2003, c. 452, Pt. K, §8 (new); Pt. X, §2 (aff).]

5-B. (TEXT EFFECTIVE 7/1/04) Exception to possession by minor. A person under 18 years of age may transport or permit to be transported in a motor vehicle cigarettes, cigarette papers or tobacco products in the original sealed package in which they were placed by the manufacturer if the transportation is in the scope of that person's employment.

[2003, c. 452, Pt. K, §8 (new); Pt. X, §2 (aff).]

5-C. (TEXT EFFECTIVE 7/1/04) Use of false identification by minors prohibited. A person under 18 years of age may not:

A. Offer false identification in an attempt to purchase a tobacco product or to purchase, possess or use cigarettes, cigarette papers or any other tobacco product;

[2003, c. 452, Pt. K, §8 (new); Pt. X, §2 (aff).]

B. Violate paragraph A after having previously violated this subsection; or

[2003, c. 452, Pt. K, §8 (new); Pt. X, §2 (aff).]

C. Violate paragraph A after having previously violated this subsection 2 or more times.

[2003, c. 452, Pt. K, §8 (new); Pt. X, §2 (aff).]

6. Display of prohibition of sales to juveniles. A dealer or distributor of tobacco products shall post notice of this section prohibiting tobacco and cigarette paper sales to persons under 18 years of age. Notices must be publicly and conspicuously displayed in the dealer's or distributor's place of business in letters at least 3/8 inches in height. Signs required by this section may be provided at cost by the department.

[1997, c. 305, §5 (new).]

7. Enforcement. Law enforcement officers shall enforce this section. A citizen may register a complaint under this section with the law enforcement agency having jurisdiction. The law enforcement agency may notify any establishment or individual subject to this section of a citizen complaint regarding that establishment's or individual's alleged violation of this section and shall keep a record of that notification.

[1997, c. 305, §5 (new).]

8. (TEXT EFFECTIVE UNTIL 7/1/04) Fines and forfeitures. Violations of this section are subject to fines and forfeitures according to this subsection.

A. A person who violates subsection 1, 2, 3 or 4 commits a civil violation for which a fine of not less than $50 nor more than $1,500, plus court costs, may be adjudged for any one offense. An employer of a person who violates subsection 1, 2, 3 or 4 commits a civil violation for which a fine of not less than $50 nor more than $1,500, plus court costs, may be adjudged. For a violation, the court shall impose a fine that may not be suspended, except pursuant to Title 15, section 3314.

[1997, c. 305, §5 (new).]

B. A person who violates subsection 5 commits a civil violation for which the following forfeitures may be adjudged.

(1) For a first offense, a forfeiture of not less than $100 and not more than $300 may be imposed. The judge, as an alternative to or in addition to the forfeiture permitted by this subparagraph, may assign the violator to perform specified work for the benefit of the State, the municipality or other public entity or a charitable institution.

(2) For a 2nd offense, a forfeiture of not less than $200 and not more than $500 may be imposed. The judge, as an alternative to or in addition to the forfeiture permitted by this subparagraph, may assign the violator to perform specified work for the benefit of the State, the municipality or other public entity or a charitable institution.

(3) For all subsequent offenses, a forfeiture of $500 must be imposed and that forfeiture may not be suspended. The judge, in addition to the forfeiture permitted by this subparagraph, may assign the violator to perform specified work for the benefit of the State, the municipality or other public entity or a charitable institution.

[1997, c. 393, Pt. D, §1 (amd).]

C. A person who violates subsection 6 commits a civil violation for which a forfeiture of not less than $50 nor more than $200 may be adjudged for any one offense.

[1997, c. 305, §5 (new).]

[1997, c. 393, Pt. D, §1 (amd).]

8. (TEXT EFFECTIVE 7/1/04) Fines. Violations of this section are subject to fines according to this subsection.

A. A person who violates subsection 1, 2, 3 or 4 commits a civil violation for which a fine of not less than $50 and not more than $1,500, plus court costs, must be adjudged for any one offense. Except pursuant to Title 15, section 3314, the fine may not be suspended.

[2003, c. 452, Pt. K, §9 (amd); Pt. X, §2 (aff).]

A-1. An employer of a person who violates subsection 1, 2, 3 or 4 commits a civil violation for which a fine of not less than $50 and not more than $1,500, plus court costs, must be adjudged. The fine may not be suspended.

[2003, c. 452, Pt. K, §9 (new); Pt. X, §2 (aff).]

B. A person who violates subsection 5-A or 5-C commits a civil violation for which the following fines may be adjudged.

(1) For a first offense, a fine of not less than $100 and not more than $300 may be imposed. The judge, as an alternative to or in addition to the fine permitted by this subparagraph, may assign the violator to perform specified work for the benefit of the State, the municipality or other public entity or a charitable institution.

(2) For a 2nd offense, a fine of not less than $200 and not more than $500 may be imposed. The judge, as an alternative to or in addition to the fine permitted by this subparagraph, may assign the violator to perform specified work for the benefit of the State, the municipality or other public entity or a charitable institution.

(3) For all subsequent offenses, a fine of $500 must be imposed and that fine may not be suspended. The judge, in addition to the fine permitted by this subparagraph, may assign the violator to perform specified work for the benefit of the State, the municipality or other public entity or a charitable institution.

[2003, c. 452, Pt. K, §9 (amd); Pt. X, §2 (aff).]

C. A person who violates subsection 6 commits a civil violation for which a fine of not less than $50 and not more than $200 may be adjudged for any one offense.

[2003, c. 452, Pt. K, §9 (amd); Pt. X, §2 (aff).]

9. Distribution of fines. Fines and forfeitures collected pursuant to subchapter 1 and this subchapter must be credited as follows: one half to the General Fund and 1/2 to be deposited in a nonlapsing account of the Maine Criminal Justice Academy for the purpose of providing funds for training and recertification of part-time and full-time law enforcement officers.

[2003, c. 20, Pt. R, §7 (amd).]

10. Affirmative defense. It is an affirmative defense to prosecution for a violation of subsection 1, 2 or 4 that the defendant sold, furnished, gave away or offered to sell, furnish or give away a tobacco product to a person under 18 years of age in reasonable reliance upon a fraudulent proof of age presented by the purchaser.

[1997, c. 305, §5 (new).]

11. Manner of displaying and offering for sale. Tobacco products may be displayed or offered for sale only in a manner that does not allow the purchaser direct access to the tobacco products. The requirements of this subsection do not apply to the display or offering for sale of tobacco products in multi-unit packages of 10 or more units, in tobacco specialty stores or in locations in which the presence of minors is generally prohibited. This requirement does not preempt a municipal ordinance that provides for more restrictive regulation of the sale of tobacco products.

[1999, c. 314, §1 (new); §2 (aff).]

§1555-C. Delivery sales of tobacco products

The following requirements apply to delivery sales of tobacco products within the State. [2003, c. 444, §2 (new).]

1. License required. It is unlawful for any person to accept an order for a delivery sale of tobacco products to a consumer in the State unless that person is licensed under this chapter as a tobacco retailer. The following penalties apply to violations of this subsection.

A. A person who violates this subsection commits a civil violation for which a fine of not less than $50 and not more than $1,500 may be adjudged for each violation.

[2003, c. 444, §2 (new).]

B. A person who violates this subsection after having been previously adjudicated as violating this subsection or subsection 2, 3 or 4 commits a civil violation for which a fine of not less than $1,000 and not more than $5,000 may be adjudged.

[2003, c. 444, §2 (new).]

2. Requirements for accepting order for delivery sale. The following provisions apply to acceptance of an order for a delivery sale of tobacco products.

A. When accepting the first order for a delivery sale from a consumer, the tobacco retailer shall obtain the following information from the person placing the order:

(1) A copy of a valid government-issued document that provides the person's name, current address, photograph and date of birth; and

(2) An original written statement signed by the person documenting that the person:

(a) Is of legal age to purchase tobacco products in the State;

(b) Has made a choice whether to receive mailings from a tobacco retailer;

(d) Understands that it is a violation of law to purchase tobacco products for subsequent resale or for delivery to persons who are under the legal age to purchase tobacco products.

[2003, c. 444, §2 (new).]

B. If an order is made as a result of advertisement over the Internet, the tobacco retailer shall request the e-mail address of the purchaser and shall receive payment by credit card or check prior to shipping.

[2003, c. 444, §2 (new).]

C. Prior to shipping the tobacco products, the tobacco retailer shall verify the information provided under paragraph A against a commercially available database derived solely from government records consisting of age and identity information, including date of birth.

[2003, c. 444, §2 (new).]

D. A person who violates this subsection commits a civil violation for which a fine of not less than $50 and not more than $1,500 may be adjudged for each violation.

[2003, c. 444, §2 (new).]

E. A person who violates this subsection after having been previously adjudicated as violating this subsection or subsection 1, 3 or 4 commits a civil violation for which a fine of not less than $1,000 and not more than $5,000 may be adjudged.

[2003, c. 444, §2 (new).]

3. Requirements for shipping a delivery sale. The following provisions apply to a tobacco retailer shipping tobacco products pursuant to a delivery sale.

A. Prior to shipping, the tobacco retailer shall provide to the delivery service the age of the purchaser as provided under subsection 2, paragraph A and verified under subsection 2, paragraph C.

[2003, c. 444, §2 (new).]

B. The tobacco retailer shall clearly mark the outside of the package of tobacco products to be shipped to indicate that the contents are tobacco products and to show the name and State of Maine tobacco license number of the tobacco retailer.

[2003, c. 444, §2 (new).]

C. The tobacco retailer shall utilize a delivery service that imposes the following requirements:

(1) The purchaser must be the addressee;

(2) The addressee must be of legal age to purchase tobacco products and must sign for the package; and

(3) If the addressee is under 27 years of age, the addressee must show valid government-issued identification that contains a photograph of the addressee and indicates that the addressee is of legal age to purchase tobacco products.

[2003, c. 444, §2 (new).]

D. The delivery instructions must clearly indicate the requirements of this subsection and must declare that state law requires compliance with the requirements.

[2003, c. 444, §2 (new).]

E. A person who violates this subsection commits a civil violation for which a fine of not less than $50 and not more than $1,500 may be adjudged for each violation.

[2003, c. 444, §2 (new).]

F. A person who violates this subsection after having been previously adjudicated as violating this subsection or subsection 1, 2 or 4 commits a civil violation for which a fine of not less than $1,000 and not more than $5,000 may be adjudged.

[2003, c. 444, §2 (new).]

4. Reporting requirements. No later than the 10th day of each calendar month, a tobacco retailer that has made a delivery sale of tobacco products or shipped or delivered tobacco products into the State in a delivery sale in the previous calendar month shall file with the Department of Administrative and Financial Services, Bureau of Revenue Services a memorandum or a copy of each invoice that provides for each delivery sale the name and address of the purchaser and the brand or brands and quantity of tobacco products sold. A tobacco retailer that meets the requirements of 15 United States Code, Section 375 et seq. (1955) satisfies the requirements of this subsection. The following penalties apply to violations of this subsection.

A. A person who violates this subsection commits a civil violation for which a fine of not less than $50 and not more than $1,500 may be adjudged for each violation.

[2003, c. 444, §2 (new).]

B. A person who violates this subsection after having been previously adjudicated as violating this subsection or subsection 1, 2 or 3 commits a civil violation for which a fine of not less than $1,000 and not more than $5,000 may be adjudged.

[2003, c. 444, §2 (new).]

5. Unlawful ordering. It is unlawful to submit ordering information for tobacco products by delivery sale under subsection 2, paragraph A in the name of another person. A person who violates this subsection commits a civil violation for which a fine of not more than $10,000 may be adjudged.

[2003, c. 444, §2 (new).]

6. Rulemaking. The department and the Department of Administrative and Financial Services shall adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

[2003, c. 444, §2 (new).]

7. Forfeiture. Any tobacco product sold or attempted to be sold in a delivery sale that does not meet the requirements of this section is deemed to be contraband and is subject to forfeiture in the same manner as and in accordance with the provisions of Title 36, section 4372-A.

[2003, c. 444, §2 (new).]

8. Enforcement. The Attorney General may bring an action to enforce this section in District Court or Superior Court and may seek injunctive relief, including a preliminary or final injunction, and fines, penalties and equitable relief and may seek to prevent or restrain actions in violation of this section by any person or any person controlling such person. In addition, a violation of this section is a violation of the Maine Unfair Trade Practices Act.

[2003, c. 444, §2 (new).]

§1555-D. Illegal delivery of tobacco products

A person may not knowingly transport or cause to be delivered to a person in this State a tobacco product purchased from a person who is not licensed as a tobacco retailer in this State, except that this provision does not apply to the transportation or delivery of tobacco products to a licensed tobacco distributor or tobacco retailer. A person is deemed to know that a package contains a tobacco product if the package is marked in accordance with the requirements of section 1555-C, subsection 3, paragraph B or if the person receives the package from a person listed as an unlicensed tobacco retailer by the Attorney General under this section. [2003, c. 444, §2 (new).]

1. Lists. The Attorney General shall maintain lists of licensed tobacco retailers and known unlicensed tobacco retailers. The Attorney General shall provide to a delivery service lists of licensed tobacco retailers and known unlicensed tobacco retailers. The list of known unlicensed tobacco retailers is confidential. A delivery service that receives a list of known unlicensed tobacco retailers shall maintain the confidentiality of the list.

[2003, c. 444, §2 (new).]

2. Penalty. The following penalties apply for violation of this section.

A. A person who violates this section commits a civil violation for which a fine of not less than $50 nor more than $1500 may be adjudged for each violation. A fine imposed under this paragraph may not be suspended.

[2003, c. 444, §2 (new).]

B. An employer of a person who, while working and within the scope of that person's employment, violates this section commits a civil violation for which a fine of not less than $50 nor more than $1,500 may be adjudged for each violation. A fine imposed under this paragraph may not be suspended.

[2003, c. 444, §2 (new).]

3. Enforcement. The Attorney General may bring an action to enforce this section in District Court or Superior Court and may seek injunctive relief, including a preliminary or final injunction, and fines, penalties and equitable relief and may seek to prevent or restrain actions in violation of this section by any person or any person controlling such person. In addition, a violation of this section is a violation of the Maine Unfair Trade Practices Act.

[2003, c. 444, §2 (new).]

4. Affirmative defense. It is an affirmative defense to a prosecution under this section that a person who transported tobacco products or caused tobacco products to be delivered reasonably relied on licensing information provided by the Attorney General under this section.

[2003, c. 444, §2 (new).]

5. Rulemaking. The department shall adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

[2003, c. 444, §2 (new).]

6. Forfeiture. Any tobacco product sold or attempted to be sold in a delivery sale that does not meet the requirements of this section is deemed to be contraband and is subject to forfeiture in the same manner as and in accordance with the provisions of Title 36, section 4372-A.

[2003, c. 444, §2 (new).]

§1556. Municipal regulation

Except as otherwise provided in this section, nothing in this chapter affects the authority of municipalities to enact ordinances or regulations that are more restrictive than this chapter. [1997, c. 63, §1 (amd).]

When a municipality intends to consider an ordinance or regulation or intends to amend an ordinance or regulation so that the ordinance or regulation would be more restrictive than this chapter, the municipality shall give notice of that intention by mail, at least 30 days prior to consideration of the ordinance, regulation or amendment, to the last known address of each retail tobacco licensee doing business within the municipal corporate limits. This notice must state the time, place and date of a hearing or proposed enactment and the subject matter of the proposed ordinance, regulation or amendment. [1997, c. 63, §1 (new).]

§1556-A. Enforcement

The provisions of this chapter and Title 36, section 4366-C may be enforced by law enforcement officers as defined by Title 17-A or by individuals hired by contract with the department to enforce this law. [1999, c. 616, §1 (amd).]

1. Contract officers. The authority of contract officers hired under this chapter is limited to enforcement of this Act and Title 36, section 4366-C. Authorization to enforce this chapter is granted by the Commissioner of Public Safety, by terms mutually agreed upon between the department and the Department of Public Safety. Contract officers must have an appropriate background in law enforcement. Contract officers are exempt from ongoing training requirements except as otherwise determined by the Commissioner of Public Safety. These contract officers are not considered law enforcement officers for the purposes of enforcing the Maine Juvenile Code.

[1999, c. 616, §2 (amd).]

2. Enforcement; jurisdiction. Enforcement of criminal offenses may be carried out by written summons pursuant to Title 17-A filed in the District Court. Enforcement of civil violations set forth in section 1555-B may be carried out by complaint filed in District Court. All civil violations involving licenses issued pursuant to section 1551-A are within the jurisdiction of the District Court pursuant to section 1557, subsection 1.

[RR 1999, c. 2, §22 (cor); §23 (aff).]

3. Injunction.

[1995, c. 593, §5 (rp).]

Subchapter 3: FINES, REVOCATION AND SUSPENSION (HEADING: PL 1995, c. 470, @9 (new))

§1557. Jurisdiction; District Court

1. Jurisdiction. The District Court, pursuant to the Maine Administrative Procedure Act, shall conduct hearings on all matters concerning violations by tobacco licensees of any state law related to tobacco sales. Notwithstanding Title 5, chapter 375, subchapter VI, the District Court Judge has exclusive jurisdiction over all violations of this chapter by licensees and their agents when no criminal penalty is provided.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

2. Powers. The District Court may impose fines or suspend or revoke licenses in accordance with this chapter.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

3. Injunction. If the person licensed to sell tobacco products has engaged in or is about to engage in any act or practice that violates this chapter, the District Court may grant a permanent or temporary injunction, restraining order or other order as appropriate.

[1995, c. 593, §6 (new); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

§1557-A. Imposition of penalties; causes

The District Court may impose fines or revoke or suspend licenses for the following causes: [1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

1. Violation of law or infraction of rule. Violation of state law or rule related to the sale of tobacco products; or

[1995, c. 470, §9 (new); §19 (aff).]

2. False material statement. Knowingly making a false material statement of fact in an application for licensure of the sale of tobacco products.

[1995, c. 470, §9 (new); §19 (aff).]

§1558. Revocation or suspension procedure

1. Violation of law or rule. Upon discovering a violation of state law or rule related to retail tobacco sales, the commissioner or the commissioner's designee shall:

A. Report the violation to the District Court in a signed complaint; or

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

B. Issue warnings to the licensees involved.

[1995, c. 470, §9 (new); §19 (aff).]

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

2. Notice and hearing. Except as provided under subsection 7, upon receipt of a signed complaint prepared under subsection 1, paragraph A, the District Court shall notify the licensee and hold a hearing according to the following procedures.

A. The District Court shall notify the licensee by serving the licensee with a copy of the complaint and a notice that states the time and place of the hearing and that the licensee may appear in person or be represented by counsel at the hearing. Service of the complaint and hearing notice is sufficient when sent by registered or certified mail at least 7 days before the date of the hearing to the address given by the licensee at the time of application for a license.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

B. The District Court shall conduct a hearing limited to the facts, laws and rules specified in the complaint.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

C. The District Court shall conduct the hearing in the following manner.

(1) The District Court may subpoena and examine witnesses, administer oaths and subpoena and compel the attendance of parents and legal guardians of unemancipated minors.

(a) The department shall pay to the witnesses the legal fees for travel and attendance, except that, notwithstanding Title 16, section 253, the department is not required to pay the fees before the travel and attendance occur.

(2) Hearsay testimony is not admissible during the hearing. The licensees named in the complaint have the right to have all witnesses testify in person at the hearing.

(3) The District Court shall state in writing the findings and decision in each case based on the facts, laws and rules cited in the complaint. The findings must specify the facts found and the laws or rules violated.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

3. Suspension or revocation decision. The District Court shall issue the decision in writing within 12 days of the hearing.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

4. Suspension of penalty; case on file. After the hearing, the District Court may:

A. Suspend a penalty; or

[1995, c. 470, §9 (new); §19 (aff).]

B. Place a case on file instead of imposing a penalty.

[1995, c. 470, §9 (new); §19 (aff).]

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

5. Application of suspension or revocation. A suspension or revocation applies to premises and persons in the following manner.

A. If a licensee is interested directly or indirectly in more than one license, suspensions apply only to the premises where the violation occurs.

[1995, c. 470, §9 (new); §19 (aff).]

B. If a licensee is interested directly or indirectly in more than one license, the District Court may order that a revocation apply to any of those premises or machines.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

C. If the licensee is a corporation, the District Court shall treat the officers, directors and substantial stockholders as individuals.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

6. Term of suspension or revocation. Suspensions must be for a definite period of time. If the District Court revokes a license, the court shall specify when the department may reinstate a license to the person whose license is revoked.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

7. Warnings. Upon the written recommendation of the commissioner, or the commissioner's designee, the District Court, instead of notifying a licensee against whom a complaint is pending to appear for hearing, may send the licensee a warning. Warnings must be sent by registered or certified mail and contain a copy of the complaint. A licensee to whom a warning is sent may demand a hearing by notifying the District Court by registered or certified mail within 10 days from the date the warning was mailed.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

8. Fines. Notwithstanding any other provisions of this Title, the District Court may impose on a licensee a fine of a specific sum of not less than $50 nor more than $1,500 for any one offense. The fine is independent of any fine or forfeiture adjudged under subchapter I or II and may be imposed instead of or in addition to any suspension or revocation of a license.

A. The District Court shall maintain a record of all fines received by the court. Any fines received must be credited as follows: 1/2 to the Department of Human Services in the account established in section 1552, subsection 4 and 1/2 to a nonlapsing account to be distributed twice a year to law enforcement agencies. Annually, the court shall report to the Office of Substance Abuse the total amount of fines collected and to whom and in what amounts the collected fines were dispersed.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

§1558-A. Record of proceedings; transcript

1. Court record. The District Court shall keep a full and complete record of all proceedings before the court of any enforcement actions or on the revocation and suspension of any license issued by the department. The District Court is not required to have a transcript of the testimony prepared unless required for rehearing or appeal.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

2. Notice to department. The District Court shall forward to the department notice of final disposition of all proceedings conducted pursuant to this subchapter. The department shall maintain the records of the proceedings for at least 5 years. Annually, the department shall report a summary of the types and number of cases heard and the dispositions of the cases to the Office of Substance Abuse.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

3. Notice to defendant. Notice of the decision of the District Court must be sent to the defendant by certified mail to the address given by the licensee to the department.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

§1559. Appeal decision of District Court

1. Aggrieved person may appeal within 30 days. A person aggrieved by the decision of the District Court in imposing any forfeiture or fine or in revoking or suspending a license issued by the department or by refusal of the department to issue a license applied for may appeal to the Superior Court by filing a complaint within 30 days of the decision or refusal.

A. The 30-day period for appeal begins on:

(1) The effective date of the suspension or revocation in the case of a license revocation or suspension; or

(2) The day when the department sends notice of refusal, by registered or certified mail, to the applicant for a license in the case of refusal by the department to issue a license.

[1995, c. 470, §9 (new); §19 (aff).]

B. Filing the complaint in Superior Court suspends the running of the 30-day period.

[1995, c. 470, §9 (new); §19 (aff).]

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

2. Suspension or revocation suspended pending appeal. If the licensee files an appeal in the Superior Court and notifies the District Court that the appeal has been filed within 7 days of the mailing of the decision of the District Court required in section 1558-A, subsection 3, the operation of a suspension or revocation of a license imposed by the District Court must be suspended, pending judgment of the Superior Court.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff)]

3. Superior Court hearing. The Superior Court shall fix a time and place for an immediate hearing and notify the District Court of the hearing.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

4. Superior Court decision. After the hearing, the Superior Court may affirm, modify or reverse the decision of the District Court.

[1995, c. 470, §9 (new); §19 (aff); 1999, c. 547, Pt. B, §78 (amd); §80 (aff).]

5. Further appeal. An aggrieved person may appeal the Superior Court decision to the Supreme Judicial Court. Upon appeal, the Supreme Judicial Court, after consideration, may reverse or modify any decree made by the Superior Court based upon an erroneous ruling or finding of law.

[1995, c. 470, §9 (new); §19 (aff).]

§1559-A. Transfer of funds

The Department of Human Services shall transfer from the account established in section 1552, subsection 4, an amount mutually agreed upon by the commissioner and the State Court Administrator to be the Judicial Department costs of implementing this chapter. The agreed upon amount must be transferred to a nonlapsing Judicial Department account to defray administrative costs. The first payment must be made by January 1, 1996 and additional payments must be made annually after that date. [1995, c. 470, §9 (new); §19 (aff).]