AB411: Bill Text

AB411, s. 1 Section 1. 100.20 (1n) of the statutes is created to read:

AB411,2,3 100.20 (1n) It is an unfair method of competition or an unfair trade practice for any person to sell cigarettes to consumers in this state in violation of s. 139.345.

AB411, s. 2 Section 2. 134.66 (1) (a) of the statutes is amended to read:

AB411,2,5 134.66 (1) (a) "Cigarette" has the meaning given in s. 139.30 (1) (1m).

AB411, s. 3 Section 3. 134.66 (1) (am) of the statutes is created to read:

AB411,2,7 134.66 (1) (am) "Direct marketer" has the meaning given in s. 139.30 (2n).

AB411, s. 4 Section 4. 134.66 (2) (a) of the statutes is amended to read:

AB411,3,4 134.66 (2) (a) No retailer, direct marketer, manufacturer, distributor, jobber or subjobber, no agent, employee or independent contractor of a retailer, direct marketer, manufacturer, distributor, jobber or subjobber and no agent or employee of an independent contractor may sell or provide for nominal or no consideration cigarettes or tobacco products to any person under the age of 18, except as provided in s. 254.92 (2) (a). A vending machine operator is not liable under this paragraph for the purchase of cigarettes or tobacco products from his or her vending machine by a person under the age of 18 if the vending machine operator was unaware of the purchase.

AB411, s. 5 Section 5. 134.66 (2) (am) of the statutes is amended to read:

AB411,3,13 134.66 (2) (am) No retailer, direct marketer, manufacturer, distributor, jobber, subjobber, no agent, employee or independent contractor of a retailer, direct marketer, manufacturer, distributor, jobber or subjobber and no agent or employee of an independent contractor may provide for nominal or no consideration cigarettes or tobacco products to any person except in a place where no person younger than 18 years of age is present or permitted to enter unless the person who is younger than 18 years of age is accompanied by his or her parent or guardian or by his or her spouse who has attained the age of 18 years.

AB411, s. 6 Section 6. 134.66 (2) (d) of the statutes is amended to read:

AB411,3,17 134.66 (2) (d) No manufacturer, direct marketer, distributor, jobber, subjobber or retailer, or their employees or agents, may provide cigarettes or tobacco products for nominal or no consideration to any person under the age of 18.

AB411, s. 7 Section 7. 134.66 (2) (e) of the statutes is amended to read:

AB411,3,20 134.66 (2) (e) No retailer or direct marketer may sell cigarettes in a form other than as a package or container on which a stamp is affixed under s. 139.32 (1).

AB411, s. 8 Section 8. 139.30 (1) of the statutes is renumbered 139.30 (1m).

AB411, s. 9 Section 9. 139.30 (1d) of the statutes is created to read:

AB411,4,2 139.30 (1d) "Bonded direct marketer" means any person who acquires unstamped cigarettes from the manufacturer thereof, affixes stamps to the packages or other containers, stores them and sells them by direct marketing to consumers for their own personal use and who may also acquire stamped cigarettes from manufacturers or distributors for such sales.

AB411, s. 10 Section 10. 139.30 (1s) of the statutes is created to read:

AB411,4,6 139.30 (1s) "Consumer" means any individual who receives cigarettes for his or her personal use or consumption or any individual who has title to or possession of cigarettes for any purpose other than for sale or resale.

AB411, s. 11 Section 11. 139.30 (2n) of the statutes is created to read:

AB411,4,9 139.30 (2n) "Direct marketer" means a bonded direct marketer or a nonbonded direct marketer.

AB411, s. 12 Section 12. 139.30 (2p) of the statutes is created to read:

AB411,4,14 139.30 (2p) "Direct marketing" means publishing or making accessible an offer for the sale of cigarettes to consumers in this state, or selling cigarettes to consumers in this state, using any means by which the consumer is not physically present at the time of sale on a premise that sells cigarettes.

AB411, s. 13 Section 13. 139.30 (4n) of the statutes is created to read:

AB411,4,17 139.30 (4n) "Government issued identification" includes a valid driver's license, state identification card, passport, or military identification.

AB411, s. 14 Section 14. 139.30 (8d) of the statutes is created to read:

AB411,4,21 139.30 (8d) "Nonbonded direct marketer" means any person who acquires stamped cigarettes from the manufacturers or distributors, stores them, and sells them by direct marketing to consumers for their own personal use.

AB411, s. 15 Section 15. 139.30 (10) of the statutes is amended to read:

AB411,4,25 139.30 (10) "Retailer" means any person who sells, exposes for sale or possesses with intent to sell to consumers any cigarettes has the meaning given in s. 134.66 (1) (g).

AB411, s. 16 Section 16. 139.32 (1) of the statutes is amended to read:

AB411,5,8 139.32 (1) The tax imposed by s. 139.31 (1) shall be paid. To evidence the payment, the department shall provide stamps. A person who has paid the tax shall affix stamps of the proper denomination to each package in which cigarettes are packed, prior to the first sale within this state. First sale does not include a sale by a manufacturer to a distributor or to a bonded direct marketer or by a distributor to a permittee who has obtained department approval as provided for in s. 139.321 (1) (a) 2. The tax shall be paid only once on each package or container.

AB411, s. 17 Section 17. 139.32 (5) of the statutes is amended to read:

AB411,5,12 139.32 (5) Manufacturers, bonded direct marketers, and distributors having a permit from the secretary who are authorized by the department to purchase tax stamps shall receive a discount of 1.6% of the tax paid on stamp purchases.

AB411, s. 18 Section 18. 139.32 (5m) of the statutes is amended to read:

AB411,5,15 139.32 (5m) Distributors, bonded direct marketers, and manufacturers shall pay to the department the cost of printing and shipping those stamps.

AB411, s. 19 Section 19. 139.32 (6) of the statutes is amended to read:

AB411,5,21 139.32 (6) Manufacturers, bonded direct marketers, and distributors having a permit from the secretary who are authorized by the department to purchase tax stamps may purchase stamps on credit. The secretary may require manufacturers, bonded direct marketers, and distributors who purchase stamps on credit to file under the conditions prescribed by the secretary by rule.

AB411, s. 20 Section 20. 139.321 (1) (intro.) of the statutes is amended to read:

AB411,5,25 139.321 (1) (intro.) It is unlawful for any person to possess in excess of 400 cigarettes unless the required stamps are properly affixed as provided in ss. 139.32 (1) and 139.33 (4).

AB411, s. 21 Section 21. 139.33 (3) of the statutes is amended to read:

AB411,6,16 139.33 (3) No person other than a member of the armed forces, as specified in this subsection, a licensed distributor, or a bonded direct marketer who is authorized by the department to purchase and affix tax stamps may import into this state more than 400 cigarettes on which the excise tax imposed by s. 139.31 has not been paid and the container of which does not bear proper stamps. Within 15 days, any such person importing cigarettes shall file a declaration of such cigarettes imported and shall remit therewith the tax on such cigarettes imposed by this section. Members of the armed forces shall not be required to report or pay the tax on cigarettes in their possession if such cigarettes are issued to them by the U.S. government or any of its subdivisions or were purchased in any armed forces post exchange or service store for their personal use or consumption. If the use tax imposed by this section is not paid when due, it shall become delinquent and the person liable for it shall pay, in addition, a penalty of $25 for each 200 cigarettes. Interest on the delinquent tax and penalty shall accrue at the rate of 1.5% per month or each fraction of a month from the date the tax became due until paid.

AB411, s. 22 Section 22. 139.34 (3) of the statutes is amended to read:

AB411,6,22 139.34 (3) No distributor or bonded direct marketer may affix stamps to cigarette packages, as provided in s. 139.32, unless the distributor or bonded direct marketer certifies to the department, in a manner prescribed by the department, that the distributor or bonded direct marketer purchases cigarettes directly from a manufacturer.

AB411, s. 23 Section 23. 139.345 of the statutes is created to read:

AB411,7,3 139.345 Direct marketing. (1) (a) (intro.) No person may sell cigarettes to consumers in this state as a direct marketer or solicit sales of cigarettes to consumers in this state by direct marketing unless the person submits to the department the person's name, trade name, address of the person's principal place of business, phone number, e-mail address, and Web site address.

AB411,7,13 (b) No person may sell cigarettes as described under this section unless the person certifies to the department, in the manner prescribed by the department, that the person shall acquire stamped cigarettes from a licensed distributor or unstamped cigarettes from the manufacturer thereof, pay the tax imposed under this subchapter on all unstamped cigarettes and affix stamps to the cigarette packages or containers as provided under s. 139.32 (1), store such packages or containers, and sell only such packages or containers to consumers in this state by direct marketing; or acquire cigarettes from a distributor, to the packages or containers of which stamps have been affixed as provided under s. 139.32 (1), and sell only such packages or containers to consumers in this state by direct marketing.

AB411,7,19 (d) No person may sell cigarettes as described in this section unless the person certifies to the department, in the manner prescribed by the department, that the person shall register with credit card and debit card companies; that the invoices and all means of solicitation for all shipments of cigarette sales from the person shall bear the person's name and address; and that the person shall provide the department any information the department considers necessary to administer this section.

AB411,7,21 (2) No person may sell cigarettes to consumers in this state by direct marketing unless the tax imposed under s. 77.52 or 77.53 is paid on the sale of such cigarettes.

AB411,7,24 (3) No person may sell cigarettes to consumers in this state, or solicit sales of cigarettes to consumers in this state by direct marketing unless the person does all of the following:

AB411,8,2 (a) Verifies the consumer's name and address and that the consumer is at least 18 years of age by any of the following methods:

AB411,8,4 1. The person uses a database, approved by the department, that includes information based on public records.

AB411,8,6 2. The person receives from the consumer, at the time of purchase, a notarized copy of a government issued identification.

AB411,8,8 3. The person uses a mechanism, other than a mechanism specified under subd. 1. or 2., that is approved by the department.

AB411,8,10 (b) Obtains from the consumer, at the time of purchase, a statement signed by the consumer that confirms all of the following:

AB411,8,11 1. The consumer's name, address, and birth date.

AB411,8,14 2. That the consumer understands that no person who is under 18 years of age may purchase or possess cigarettes or falsely represent his or her age for the purpose of receiving cigarettes, as provided under s. 254.92.

AB411,8,22 3. That the consumer understands that any person who, for the purpose of obtaining credit, goods, or services, intentionally uses, attempts to use, or possesses with intent to use, any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her, is guilty of a Class H felony, as provided under s. 943.201.

AB411,9,2 (4) Any person who makes a sale of cigarettes as the result of an advertisement on the Internet shall, at the time of purchase, obtain the purchaser's electronic mail address and shall receive payment for the sale by credit card, debit card, or check prior to shipping.

AB411,9,5 (5) The invoice for any shipment of cigarettes sold to consumers in this state by direct marketing shall specify the name and address of the seller and any valid permit issued under s. 139.34 that is held by the seller.

AB411,9,7 (6) All packages of cigarettes shipped to consumers in this state shall be clearly labelled "CIGARETTES" on all sides of the outside of such packages.

AB411,9,15 (7) (a) No person may deliver a package of cigarettes sold by direct marketing to a consumer in this state unless the person making the delivery receives a government issued identification card from the person receiving the package and verifies that the person receiving the package is at least 18 years of age. If the person receiving the package is not the person to whom the package is addressed, the person delivering the package shall have the person receiving the package sign a statement that affirms that the person to whom the package is addressed is at least 18 years of age.

AB411,9,20 (b) No person may deliver a package of cigarettes to a consumer in this state unless the seller of the cigarettes provides proof to the person making the delivery that the seller has complied with all requirements under this subchapter. A seller shall have no course of action against any person who refuses to deliver cigarettes as provided under this subdivision.

AB411,9,23 (8) This section does not apply to any retailer or wholesaler who sells cigarettes to consumers in this state and who holds a valid seller's permit under this subchapter or subch. III of ch. 77.

AB411, s. 24 Section 24. 139.35 (1) of the statutes is amended to read:

AB411,10,5 139.35 (1) Transfers. No person may give, sell or lend any stamps to another and no person may accept, purchase or borrow any stamps from another. All sales and transfers of stamps may be made only by the secretary to permit holding manufacturers and distributors, and to bonded direct marketers who are authorized by the department to purchase and affix tax stamps.

AB411, s. 25 Section 25. 139.38 (1) of the statutes is amended to read:

AB411,10,20 139.38 (1) Every manufacturer located out of the state shall keep records of all sales of cigarettes shipped into this state. Every manufacturer located in the state shall keep records of production, sales and withdrawals of cigarettes. Every distributor and direct marketer shall keep records of purchases and sales of cigarettes. Every manufacturer, bonded direct marketer, and distributor holding a permit from the secretary with the right who is authorized by the department to purchase and apply stamps shall also keep records of purchases and disposition of stamps. Every jobber, multiple retailer, and vending machine operator shall keep records of all purchases and disposition of cigarettes. Every warehouse operator shall keep records of receipts and withdrawals of cigarettes. All such records shall be accurate and complete and be kept in a manner prescribed by the secretary. These records shall be preserved on the premises described in the permit or license in such a manner as to ensure permanency and accessibility for inspection at reasonable hours by authorized personnel of the department.

AB411, s. 26 Section 26. 139.38 (1m) of the statutes is created to read:

AB411,11,4 139.38 (1m) Records of purchases and sales of cigarettes under sub. (1) that are kept by direct marketers shall indicate, for each shipment of cigarettes into this state in the month preceding the report under sub. (2), the invoice date and number; the quantity of cigarettes shipped; the brand name of the cigarettes shipped; the manufacturer of the cigarettes shipped and the point of origin; the purchaser's name, address, and birth date; the name of the person to whom the cigarettes were shipped; the address to which the cigarettes were shipped; and any other information the department requires.

AB411, s. 27 Section 27. 139.38 (2) of the statutes is amended to read:

AB411,11,10 139.38 (2) (a) Except as provided in par. (b), every permittee manufacturer, distributor, jobber, and direct marketer shall render a true and correct invoice of every sale of cigarettes at wholesale and every permittee shall on or before the 15th day of each calendar month file a verified report of all cigarettes purchased, sold, received, warehoused or withdrawn during the preceding calendar month.

AB411,11,16 (b) The department may allow any jobber, multiple retailer, nonbonded direct marketer, or vending machine operator permittee who does not sell cigarettes, except for those on which the tax under this chapter is paid, to file a quarterly report. The quarterly report shall be filed on or before the 15th day of the next month following the close of each calendar quarter. The report shall specify the number of cigarettes purchased and sold during the preceding calendar quarter.

AB411, s. 28 Section 28. 139.395 of the statutes is amended to read:

AB411,12,2 139.395 Theft of tax moneys. All cigarette tax moneys received by a distributor, bonded direct marketer, or manufacturer for the sale of cigarettes on which the tax under this subchapter has become due and has not been paid are trust funds in the hands of the distributor, bonded direct marketer, or manufacturer and are the property of this state. Any distributor, bonded direct marketer, or manufacturer who fraudulently withholds, appropriates or otherwise uses cigarette tax moneys that are the property of this state is guilty of theft under s. 943.20 (1), whether or not the distributor, bonded direct marketer, or manufacturer has or claims to have an interest in those moneys.

AB411, s. 29 Section 29. 139.45 of the statutes is amended to read:

AB411,12,7 139.45 Prosecutions by attorney general. Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this subchapter. The attorney general may take any action necessary to enforce s. 139.345.

AB411, s. 30 Section 30. 139.75 (12) of the statutes is amended to read:

AB411,12,15 139.75 (12) "Tobacco products" means cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready-rubbed and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking; but "tobacco products" does not include cigarettes, as defined under s. 139.30 (1) (1m).

AB411, s. 31 Section 31. 254.911 (1) of the statutes is amended to read:

AB411,12,17 254.911 (1) "Cigarette" has the meaning given in s. 139.30 (1) (1m).

AB411, s. 32 Section 32. 254.92 (2m) of the statutes is created to read:

AB411,12,21 254.92 (2m) No person may purchase cigarettes on behalf of, or to provide to, any person who is under 18 years of age. Any person who violates this subsection may be:

AB411,12,23 (a) Required to forfeit not more than $500 if the person has not committed a previous violation within 30 months of the violation.

AB411,12,25 (b) Fined not more than $500 or imprisoned for not more than 30 days or both if the person has committed a previous violation within 30 months of the violation.

AB411,13,2 (c) Fined not more than $1,000 or imprisoned for not more than 90 days or both if the person has committed 2 previous violations within 30 months of the violation.

AB411,13,5 (d) Fined not more than $10,000 or imprisoned for not more than 9 months or both if the person has committed 3 or more previous violations within 30 months of the violation.

AB411, s. 33 Section 33. 891.455 (4) of the statutes is amended to read:

AB411,13,10 891.455 (4) The presumption under sub. (2) for cancers caused by smoking or tobacco product use shall not apply to any municipal fire fighter who smokes cigarettes, as defined in s. 139.30 (1) (1m), or who uses a tobacco product, as defined in s. 139.75 (12), after January 1, 2001.

AB411,13,11 (End)