As Passed by the Senate                       1            

123rd General Assembly                                             4            

   Regular Session                              Sub. S. B. No. 98  5            

      1999-2000                                                    6            


SENATORS NEIN-GARDNER-LATTA-WHITE-BLESSING-DRAKE-MUMPER-DiDONATO-  8            

           McLIN-WACHTMANN-SPADA-HERINGTON-ARMBRUSTER              9            


_________________________________________________________________   11           

                          A   B I L L                                           

             To amend sections 5743.11, 5743.111, 5743.17,         13           

                5743.18, and 5743.99 and to enact section 5743.21  14           

                of the Revised Code to prohibit the affixing of                 

                tax stamps to certain packages of cigarettes and   15           

                to declare an emergency.                                        




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        17           

      Section 1.  That sections 5743.11, 5743.111, 5743.17,        19           

5743.18, and 5743.99 be amended and section 5743.21 of the         20           

Revised Code be enacted to read as follows:                                     

      Sec. 5743.11.  No person shall sell cigarettes without       29           

there having been first affixed to each individual package the     30           

stamp required by section 5743.03 of the Revised Code OR WITH THE  31           

STAMP HAVING BEEN AFFIXED TO THE PACKAGE IN VIOLATION OF SECTION   32           

5743.21 OF THE REVISED CODE.                                                    

      Sec. 5743.111.  No person shall have in his possession       41           

POSSESS packages of cigarettes not bearing the stamps required by  43           

Chapter 5743. of the Revised Code, OR BEARING STAMPS THAT HAVE     44           

BEEN AFFIXED IN VIOLATION OF SECTION 5743.21 OF THE REVISED CODE,  45           

when the wholesale value of the cigarettes exceeds sixty dollars.  46           

      Sec. 5743.17.  The court of common pleas may enter an order  55           

to revoke a wholesale or retail cigarette license held by any      56           

person convicted of a misdemeanor for any violation of sections    57           

5743.01 to 5743.20 5743.21 of the Revised Code.  The court of      59           

common pleas shall enter an order to revoke a wholesale or retail  60           

cigarette license held by any person convicted of a felony for                  

                                                          2      


                                                                 
violation of sections 5743.01 to 5743.20 5743.21 of the Revised    62           

Code.  The clerk of the court of common pleas shall certify a      64           

copy of either of such orders in duplicate to the county auditor   65           

and to the tax commissioner, and thereafter such person shall be   66           

considered not to have obtained any license; provided that after   67           

the expiration of one year from the date of such revocation, such  69           

person may apply for such license.                                 70           

      Sec. 5743.18.  Upon notice and hearing in accordance with    79           

sections 119.01 to 119.13, inclusive, of the Revised Code, the     80           

tax commissioner may revoke any wholesale or retail cigarette      82           

license for violation of sections 5743.01 to 5743.20, inclusive,   83           

5743.21 of the Revised Code.  A certified copy of the order        84           

revoking such license shall be transmitted to the county auditor   85           

of the county in which the license was issued.                     86           

      Sec. 5743.21.  (A)  NO PERSON SHALL AFFIX A STAMP REQUIRED   88           

BY SECTION 5743.03 OF THE REVISED CODE TO ANY PACKAGE THAT:        89           

      (1)  BEARS ANY LABEL OR NOTICE PRESCRIBED BY THE UNITED      92           

STATES TO IDENTIFY CIGARETTES EXEMPT FROM TAXATION BY THE UNITED   93           

STATES PURSUANT TO SECTION 5704(b) OF THE "INTERNAL REVENUE CODE   97           

OF 1986," 100 Stat. 2085, 26 U.S.C.A. 5704(b), INCLUDING ANY       100          

NOTICE OR LABEL DESCRIBED IN 27 C.F.R. 290.185;                    102          

      (2)  IS NOT LABELED IN CONFORMITY WITH THE "FEDERAL          105          

CIGARETTE LABELING AND ADVERTISING ACT," 79 STAT. 282, 15          108          

U.S.C.A. 1331 (1965), OR ANY OTHER FEDERAL REQUIREMENT FOR THE                  

PLACEMENT OF LABELS, WARNINGS, OR OTHER INFORMATION APPLICABLE TO  109          

PACKAGES OF CIGARETTES INTENDED FOR DOMESTIC CONSUMPTION;          111          

      (3)  HAS BEEN ALTERED BY ANYONE OTHER THAN THE MANUFACTURER  113          

OR A PERSON AUTHORIZED BY THE MANUFACTURER, INCLUDING BY THE       114          

PLACEMENT OF A STICKER TO COVER INFORMATION ON OR ADD INFORMATION  115          

TO THE PACKAGE;                                                                 

      (4)  HAS BEEN IMPORTED OR BROUGHT INTO THE UNITED STATES     118          

AFTER JANUARY 1, 2000, IN VIOLATION OF SECTION 5754 OF THE         119          

"INTERNAL REVENUE CODE OF 1986," 100 STAT. 2085, 26 U.S.C.A.       120          

5754, OR REGULATIONS ADOPTED UNDER THAT SECTION.                   121          

                                                          3      


                                                                 
      (B)  WHENEVER THE TAX COMMISSIONER DISCOVERS ANY PACKAGES    123          

TO WHICH STAMPS HAVE BEEN AFFIXED IN VIOLATION OF THIS SECTION,    124          

THE COMMISSIONER MAY SEIZE THE PACKAGES, WHICH SHALL THEREUPON BE  125          

FORFEITED TO THE STATE, AND SHALL ORDER THEIR DESTRUCTION,         126          

PROVIDED THAT THE SEIZURE AND DESTRUCTION SHALL NOT EXEMPT ANY     127          

PERSON FROM PROSECUTION OR FROM THE FINE OR IMPRISONMENT PROVIDED  128          

FOR VIOLATION OF THIS SECTION.                                                  

      Sec. 5743.99.  (A)  Whoever violates section 5743.10,        137          

5743.11, OR 5743.12, or division (C) of section 5743.54 of the     139          

Revised Code is guilty of a misdemeanor of the first degree.  If   140          

the offender has been previously convicted of an offense under     141          

this division, violation is a felony of the fourth degree.         142          

      (B)  Whoever violates section 5743.111, 5743.112, 5743.13,   144          

5743.59, or 5743.60 of the Revised Code is guilty of a felony of   145          

the fourth degree.  If the offender has been previously convicted  146          

of an offense under this division, violation is a felony of the    147          

second degree.                                                     148          

      (C)  Whoever violates section 5743.41 or 5743.42 of the      150          

Revised Code is guilty of a misdemeanor of the fourth degree.  If  151          

the offender has been previously convicted of an offense under     152          

this division, violation is a misdemeanor of the third degree.     153          

      (D)  WHOEVER VIOLATES SECTION 5743.21 OF THE REVISED CODE    155          

IS GUILTY OF A MISDEMEANOR OF THE FIRST DEGREE.  IF THE OFFENDER   157          

HAS BEEN PREVIOUSLY CONVICTED OF AN OFFENSE UNDER THIS DIVISION,   158          

VIOLATION IS A FELONY OF THE FIFTH DEGREE.                                      

      (E)  Whoever violates any provision of this chapter, or any  160          

rule promulgated by the tax commissioner under authority of this   161          

chapter, for the violation of which no penalty is provided         162          

elsewhere, is guilty of a misdemeanor of the fourth degree.        163          

      (E)(F)  In addition to any other penalty imposed upon a      165          

person convicted of a violation of section 5743.112 or 5743.60 of  166          

the Revised Code who was the operator of a motor vehicle used in   167          

the violation, the registrar of motor vehicles shall suspend any   168          

driver's or commercial driver's license issued to the offender     169          

                                                          4      


                                                                 
pursuant to the order and determination of the trial judge of any  170          

court of record as provided in section 4507.16 of the Revised      171          

Code.                                                              172          

      Section 2.  That existing sections 5743.11, 5743.111,        174          

5743.17, 5743.18, and 5743.99 of the Revised Code are hereby       175          

repealed.                                                                       

      Section 3.  This act is hereby declared to be an emergency   177          

measure necessary for the immediate preservation of the public     178          

peace, health, and safety.  The reason for such necessity is that  179          

Ohio's legitimate and taxpaying cigarette wholesalers and          180          

retailers are being threatened by unfair competition from                       

gray-market dealers and Ohio's tax collections and payments under  181          

the tobacco industry settlement are being threatened with losses   182          

to the gray market.  Therefore, this act shall go into immediate   183          

effect.