As Passed by the House                        1            

123rd General Assembly                                             4            

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

      1999-2000                                                    6            


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

      DiDONATO-McLIN-WACHTMANN-SPADA-HERINGTON-ARMBRUSTER-         9            

   REPRESENTATIVES MOTTLEY-CORBIN-JOLIVETTE-FLANNERY-BRITTON-      10           

   AMSTUTZ-D.MILLER-TERWILLEGER-BRADING-COUGHLIN-CATES-BARNES-     11           

 BUEHRER-O'BRIEN-VESPER-MAIER-BOYD-VERICH-HARRIS-HEALY-CALVERT-    12           

                      BATEMAN-HAINES-JONES                         13           


_________________________________________________________________                

                          A   B I L L                                           

             To amend sections 5743.11, 5743.111, 5743.17,         15           

                5743.18, and 5743.99 and to enact section 5743.21  16           

                of the Revised Code to prohibit the affixing of                 

                tax stamps to certain packages of cigarettes and   17           

                to declare an emergency.                                        




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        19           

      Section 1.  That sections 5743.11, 5743.111, 5743.17,        21           

5743.18, and 5743.99 be amended and section 5743.21 of the         22           

Revised Code be enacted to read as follows:                                     

      Sec. 5743.11.  No person shall sell cigarettes without       31           

there having been first affixed to each individual package the     32           

stamp required by section 5743.03 of the Revised Code OR WITH THE  33           

STAMP HAVING BEEN AFFIXED TO THE PACKAGE IN VIOLATION OF SECTION   34           

5743.21 OF THE REVISED CODE.                                                    

      Sec. 5743.111.  No person shall have in his possession       43           

POSSESS packages of cigarettes not bearing the stamps required by  45           

Chapter 5743. of the Revised Code, OR BEARING STAMPS THAT HAVE     46           

BEEN AFFIXED IN VIOLATION OF SECTION 5743.21 OF THE REVISED CODE,  47           

when the wholesale value of the cigarettes exceeds sixty dollars.  48           

      Sec. 5743.17.  The court of common pleas may enter an order  57           

to revoke a wholesale or retail cigarette license held by any      58           

                                                          2      


                                                                 
person convicted of a misdemeanor for any violation of sections    59           

5743.01 to 5743.20 5743.21 of the Revised Code.  The court of      61           

common pleas shall enter an order to revoke a wholesale or retail  62           

cigarette license held by any person convicted of a felony for                  

violation of sections 5743.01 to 5743.20 5743.21 of the Revised    64           

Code.  The clerk of the court of common pleas shall certify a      66           

copy of either of such orders in duplicate to the county auditor   67           

and to the tax commissioner, and thereafter such person shall be   68           

considered not to have obtained any license; provided that after   69           

the expiration of one year from the date of such revocation, such  71           

person may apply for such license.                                 72           

      Sec. 5743.18.  Upon notice and hearing in accordance with    81           

sections 119.01 to 119.13, inclusive, of the Revised Code, the     82           

tax commissioner may revoke any wholesale or retail cigarette      84           

license for violation of sections 5743.01 to 5743.20, inclusive,   85           

5743.21 of the Revised Code.  A certified copy of the order        86           

revoking such license shall be transmitted to the county auditor   87           

of the county in which the license was issued.                     88           

      Sec. 5743.21.  (A)  NO PERSON SHALL AFFIX A STAMP REQUIRED   90           

BY SECTION 5743.03 OF THE REVISED CODE TO ANY PACKAGE THAT:        91           

      (1)  BEARS ANY LABEL OR NOTICE PRESCRIBED BY THE UNITED      94           

STATES TO IDENTIFY CIGARETTES EXEMPT FROM TAXATION BY THE UNITED   95           

STATES PURSUANT TO SECTION 5704(b) OF THE "INTERNAL REVENUE CODE   99           

OF 1986," 100 Stat. 2085, 26 U.S.C.A. 5704(b), INCLUDING ANY       102          

NOTICE OR LABEL DESCRIBED IN 27 C.F.R. 290.185;                    104          

      (2)  IS NOT LABELED IN CONFORMITY WITH THE "FEDERAL          107          

CIGARETTE LABELING AND ADVERTISING ACT," 79 STAT. 282, 15          110          

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

PLACEMENT OF LABELS, WARNINGS, OR OTHER INFORMATION APPLICABLE TO  111          

PACKAGES OF CIGARETTES INTENDED FOR DOMESTIC CONSUMPTION;          113          

      (3)  HAS BEEN ALTERED BY ANYONE OTHER THAN THE MANUFACTURER  115          

OR A PERSON AUTHORIZED BY THE MANUFACTURER, INCLUDING BY THE       116          

PLACEMENT OF A STICKER TO COVER INFORMATION ON OR ADD INFORMATION  117          

TO THE PACKAGE;                                                                 

                                                          3      


                                                                 
      (4)  HAS BEEN IMPORTED OR BROUGHT INTO THE UNITED STATES     120          

AFTER JANUARY 1, 2000, IN VIOLATION OF SECTION 5754 OF THE         121          

"INTERNAL REVENUE CODE OF 1986," 100 STAT. 2085, 26 U.S.C.A.       122          

5754, OR REGULATIONS ADOPTED UNDER THAT SECTION.                   123          

      (B)  WHENEVER THE TAX COMMISSIONER DISCOVERS ANY PACKAGES    125          

TO WHICH STAMPS HAVE BEEN AFFIXED IN VIOLATION OF THIS SECTION,    126          

THE COMMISSIONER MAY SEIZE THE PACKAGES, WHICH SHALL THEREUPON BE  127          

FORFEITED TO THE STATE, AND SHALL ORDER THEIR DESTRUCTION,         128          

PROVIDED THAT THE SEIZURE AND DESTRUCTION SHALL NOT EXEMPT ANY     129          

PERSON FROM PROSECUTION OR FROM THE FINE OR IMPRISONMENT PROVIDED  130          

FOR VIOLATION OF THIS SECTION.                                                  

      Sec. 5743.99.  (A)  Whoever violates section 5743.10,        139          

5743.11, OR 5743.12, or division (C) of section 5743.54 of the     141          

Revised Code is guilty of a misdemeanor of the first degree.  If   142          

the offender has been previously convicted of an offense under     143          

this division, violation is a felony of the fourth degree.         144          

      (B)  Whoever violates section 5743.111, 5743.112, 5743.13,   146          

5743.59, or 5743.60 of the Revised Code is guilty of a felony of   147          

the fourth degree.  If the offender has been previously convicted  148          

of an offense under this division, violation is a felony of the    149          

second degree.                                                     150          

      (C)  Whoever violates section 5743.41 or 5743.42 of the      152          

Revised Code is guilty of a misdemeanor of the fourth degree.  If  153          

the offender has been previously convicted of an offense under     154          

this division, violation is a misdemeanor of the third degree.     155          

      (D)  WHOEVER VIOLATES SECTION 5743.21 OF THE REVISED CODE    157          

IS GUILTY OF A MISDEMEANOR OF THE FIRST DEGREE.  IF THE OFFENDER   159          

HAS BEEN PREVIOUSLY CONVICTED OF AN OFFENSE UNDER THIS DIVISION,   160          

VIOLATION IS A FELONY OF THE FIFTH DEGREE.                                      

      (E)  Whoever violates any provision of this chapter, or any  162          

rule promulgated by the tax commissioner under authority of this   163          

chapter, for the violation of which no penalty is provided         164          

elsewhere, is guilty of a misdemeanor of the fourth degree.        165          

      (E)(F)  In addition to any other penalty imposed upon a      167          

                                                          4      


                                                                 
person convicted of a violation of section 5743.112 or 5743.60 of  168          

the Revised Code who was the operator of a motor vehicle used in   169          

the violation, the registrar of motor vehicles shall suspend any   170          

driver's or commercial driver's license issued to the offender     171          

pursuant to the order and determination of the trial judge of any  172          

court of record as provided in section 4507.16 of the Revised      173          

Code.                                                              174          

      Section 2.  That existing sections 5743.11, 5743.111,        176          

5743.17, 5743.18, and 5743.99 of the Revised Code are hereby       177          

repealed.                                                                       

      Section 3.  This act is hereby declared to be an emergency   179          

measure necessary for the immediate preservation of the public     180          

peace, health, and safety.  The reason for such necessity is that  181          

Ohio's legitimate and taxpaying cigarette wholesalers and          182          

retailers are being threatened by unfair competition from                       

gray-market dealers and Ohio's tax collections and payments under  183          

the tobacco industry settlement are being threatened with losses   184          

to the gray market.  Therefore, this act shall go into immediate   185          

effect.