Session of 1999
By Committee on Federal and State Affairs

  9             AN  ACT concerning cigarettes and tobacco products; relating to the sale
10             and distribution thereof; amending K.S.A. 79-3313, 79-3321 and 79-
11             3326 and K.S.A. 1998 Supp. 79-3322 and repealing the existing
12             sections.
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. K.S.A. 79-3313 is hereby amended to read as follows: 79-
16       3313. All cigarettes sold in this state shall be in packages, and each of the
17       packages shall bear evidence of payment of the tax thereon except that
18       any railroad or sleeping car company licensed as a retailer is hereby au-
19       thorized to sell cigarettes upon its cars without affixing stamps to the
20       packages of cigarettes provided that monthly reports and payment of the
21       tax due is made directly to the director in the manner and under the
22       terms provided for by the director. In addition, manufacturers are hereby
23       authorized to distribute in the state, through their authorized represen-
24       tatives or wholesale dealers, free sample packages of cigarettes containing
25       less than 20 cigarettes without affixing stamps to the packages provided
26       that monthly reports and payment of a tax at the rates prescribed by law
27       are made directly to the director. No wholesale dealer or manufacturers'
28       authorized representatives shall sell or distribute cigarettes, except free
29       sample packages, to any person in the state of Kansas not holding a
30       dealer's license as provided in this act. Such packages of sample cigarettes
31       shall bear the word "sample" or "not for sale" and "state tax paid" in
32       letters easily read.
33             Whenever the director shall have reason to believe that any manufac-
34       turer has violated the provisions of this section or the conditions provided
35       by the director, the director shall conduct a hearing thereon in accordance
36       with the provisions of the Kansas administrative procedure act in the
37       office of the director at Topeka. If upon the basis of such hearing it
38       appears to the satisfaction of the director that such manufacturer has
39       violated any of the provisions of this section or the conditions provided
40       by the director, the director is hereby authorized to suspend or revoke
41       the authorization to the manufacturer for such period as the director
42       determines is necessary but in no case for more than one year.
43             Sec.  2. K.S.A. 79-3321 is hereby amended to read as follows: 79-
44       3321. It shall be unlawful for any person:
45             (a) To possess, except as otherwise specifically provided by this act,
46       more than 200 cigarettes without the required tax indicia being affixed as
47       herein provided.
48             (b) To mutilate or attach to any individual package of cigarettes any
49       stamp that has in any manner been mutilated or that has been heretofore
50       attached to a different individual package of cigarettes or to have in pos-
51       session any stamps so mutilated.
52             (c) To prevent the director or any officer or agent authorized by law,
53       to make a full inspection for the purpose of this act, of any place of
54       business and all premises connected thereto where cigarettes are or may
55       be manufactured, sold, distributed, or given away.
56             (d) To use any artful device or deceptive practice to conceal any vi-
57       olation of this act or to mislead the director or officer or agent authorized
58       by law in the enforcement of this act.
59             (e) Who is a dealer to fail to produce on demand of the director or
60       any officer or agent authorized by law any records or invoices required
61       to be kept by such person.
62             (f) Knowingly to make, use, or present to the director or agent thereof
63       any falsified invoice or falsely state the nature or quantity of the goods
64       therein invoiced.
65             (g) Who is a dealer to fail or refuse to keep and preserve for the time
66       and in the manner required herein all the records required by this act to
67       be kept and preserved.
68        (h) To wholesale cigarettes to any person, other than a manufacturer's
69       salesperson, retail dealer or wholesaler who is:
70        (1) Duly licensed by the state where such manufacturer's salesperson,
71       retail dealer or wholesaler is located,; or
72        (2) exempt from state licensing under applicable state or federal laws
73       or court decisions including any such person operating as a retail dealer
74       upon land allotted to or held in trust for an Indian tribe recognized by
75       the United States bureau of Indian affairs.
76        (i) To have in possession any evidence of tax indicia provided for
77       herein not purchased from the director.
78        (j) To fail or refuse to permit the director or any officer or agent
79       authorized by law to inspect a carrier transporting cigarettes.
80        (k) To vend small cigars, or any products so wrapped as to be con-
81       fused with cigarettes, from a machine vending cigarettes, nor shall a vend-
82       ing machine be so built to vend cigars or products that may be confused
83       with cigarettes, be attached to a cigarette vending machine.
84        (l) To sell, furnish or distribute cigarettes or tobacco products to any
85       person under 18 years of age.
86        (m) Who is under 18 years of age to purchase or attempt to purchase
87       cigarettes or tobacco products.
88        (n) Who is under 18 years of age to possess or attempt to possess
89       cigarettes or tobacco products.
90        (o) To sell cigarettes to a retailer or at retail that do not bear Kansas
91       tax indicia or upon which the Kansas cigarette tax has not been paid.
92        (p) To sell cigarettes without having a license for such sale as provided
93       herein.
94        (q) To sell a vending machine without having a vending machine dis-
95       tributor's license.
96        (r) Who is a retail dealer to fail to post and maintain in a conspicuous
97       place in the dealer's establishment the following notice: "By law, ciga-
98       rettes and tobacco products may be sold only to persons 18 years of age
99       and older."
100        (s) To distribute samples within 500 feet of any school when such
101       facility is being used primarily by persons under 18 years of age unless
102       the sampling is: (1) In an area to which persons under 18 years of age are
103       denied access; (2) in or at a retail location where cigarettes and tobacco
104       products are the primary commodity offered for sale at retail; or (3) at or
105       adjacent to an outdoor production, repair or construction site or facility
106       of cigarettes or tobacco products.
107        (t) To sell cigarettes or tobacco products by means of a vending ma-
108       chine in any establishment, or portion of an establishment, which is open
109       to minors, except that this subsection shall not apply to:
110        (1) The installation and use by the proprietor of the establishment,
111       or by the proprietor's agents or employees, of vending machines behind
112       a counter, or in some place in such establishment, or portion thereof, to
113       which minors are prohibited by law from having access;
114        (2) the installation and use of a vending machine in a commercial
115       building or industrial plant, or portions thereof, where the public is not
116       customarily admitted and where machines are intended for the sole use
117       of adult employees employed in the building or plant; or
118        (3) a vending machine which has a lock-out device which is inoper-
119       able in the continuous standby mode and which requires manual activa-
120       tion by the person supervising the operation of the machine each time
121       cigarettes or tobacco products are purchased from this machine.
122        Sec. 3. K.S.A. 1998 Supp. 79-3322 is hereby amended to read as
123       follows: 79-3322. (a) Except as otherwise provided by this act, any person
124       who violates any of the provisions of this act, except as otherwise provided
125       in this act, shall be guilty of a misdemeanor and upon conviction shall be
126       punished by a fine of not more than $1,000 or imprisonment for not more
127       than one year, or by both. In addition thereto, any person found liable
128       for any license fee or tax imposed under the provisions of this act shall
129       be personally liable personally for such license fee or tax plus a penalty
130       in an amount equal to 100% thereof.
131        (b) (1) It is a class B person misdemeanor punishable by a minimum
132       fine of $200 for any person to: (A) Sell, give or furnish any cigarettes or
133       tobacco products to any person under 18 years of age; or (B) buy any
134       cigarettes or tobacco products for any person under 18 years of age.
135        (2) It shall be a defense to a prosecution under this subsection if: (A)
136       The defendant is a licensed retail dealer, or employee thereof, or a person
137       authorized by law to distribute samples; (B) the defendant sold, furnished
138       or distributed the cigarettes or tobacco products to the person under 18
139       years of age with reasonable cause to believe the person was of legal age
140       to purchase or receive cigarettes or tobacco products; and (C) to purchase
141       or receive the cigarettes or tobacco products, the person under 18 years
142       of age exhibited to the defendant a driver's license, Kansas nondriver's
143       identification card or other official or apparently official document con-
144       taining a photograph of the person and purporting to establish that the
145       person was of legal age to purchase or receive cigarettes or tobacco
146       products.
147        (3) It shall be a defense to a prosecution under this subsection if: (A)
148       The defendant engages in the lawful sale, furnishing or distribution of
149       cigarettes or tobacco products by mail; and (B) the defendant sold, fur-
150       nished or distributed the cigarettes or tobacco products to the person by
151       mail only after the person had provided to the defendant an unsworn
152       declaration, conforming to K.S.A. 53-601, and amendments thereto, that
153       the person was 18 or more years of age.
154        (4) For purposes of this subsection the person who violates this sub-
155       section shall be the individual directly selling, furnishing or distributing
156       the cigarettes or tobacco products to any person under 18 years of age or
157       the retail dealer who has actual knowledge of such selling, furnishing or
158       distributing by such individual or both.
159        (c) Violation of subsection (m) or (n) of K.S.A. 79-3321, and amend-
160       ments thereto, is a cigarette or tobacco infraction for which the fine is
161       $25. In addition, the judge may require the juvenile to appear in court
162       with a parent or legal guardian.
163        (d) Any agent, employees or others who aid, abet or otherwise par-
164       ticipate in any way in the violation of this act or in any of the offenses
165       hereunder punishable shall be guilty and punished as principals to the
166       same extent as any person violating this act.
167        Sec. 4. K.S.A. 79-3326 is hereby amended to read as follows: 79-3326.
168       The director of taxation shall administer and enforce the provisions of
169       this act. The secretary of revenue shall adopt rules and regulations for
170       the administration of this act. For the purpose of enforcing this act, the
171       director may call to the director's aid any law enforcement officer of this
172       state to prosecute all violators of any of the provisions of this act. The
173       police of any city shall have the right to inspect all premises, records and
174       invoices pertaining to the wholesale distribution, or retail sale or sampling
175       of cigarettes or tobacco products within the city at all reasonable times.
176       All agents and representatives designated by the director are hereby in-
177       vested with all the powers of peace and police law enforcement officers
178       within the state of Kansas in the enforcement of the provisions of this act
179       throughout the state.
180        Sec. 5. K.S.A. 79-3313, 79-3321 and 79-3326 and K.S.A. 1998 Supp.
181       79-3322 are hereby repealed.
182        Sec. 6. This act shall take effect and be in force from and after its
183       publication in the statute book.