As Reported by the House Criminal Justice Committee

135th General Assembly

Regular Session H. B. No. 258

2023-2024

A BILL

To amend sections 2927.02, 3767.01, and 4301.74 of the Revised Code to increase fines for repeatedly selling tobacco products to minors and to apply the public nuisance law to places where such sales occur.

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

Section 1. That sections 2927.02, 3767.01, and 4301.74 of the Revised Code be amended to read as follows:

Sec. 2927.02. (A) As used in this section and sections 2927.021 and 2927.022 of the Revised Code:

(1) "Age verification" means a service provided by an independent third party (other than a manufacturer, producer, distributor, wholesaler, or retailer of cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes) that compares information available from a commercially available database, or aggregate of databases, that regularly are used by government and businesses for the purpose of age and identity verification to personal information provided during an internet sale or other remote method of sale to establish that the purchaser is twenty-one years of age or older.

(2)(a) "Alternative nicotine product" means, subject to division (A)(2)(b) of this section, an electronic smoking device, vapor product, or any other product or device that consists of or contains nicotine that can be ingested into the body by any means, including, but not limited to, chewing, smoking, absorbing, dissolving, or inhaling.

(b) "Alternative nicotine product" does not include any of the following:

(i) Any cigarette or other tobacco product;

(ii) Any product that is a "drug" as that term is defined in 21 U.S.C. 321(g)(1);

(iii) Any product that is a "device" as that term is defined in 21 U.S.C. 321(h);

(iv) Any product that is a "combination product" as described in 21 U.S.C. 353(g).

(3) "Cigarette" includes clove cigarettes and hand-rolled cigarettes.

(4) "Distribute" means to furnish, give, or provide cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to the ultimate consumer of the cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes.

(5) "Electronic smoking device" means any device that can be used to deliver aerosolized or vaporized nicotine or any other substance to the person inhaling from the device including an electronic cigarette, electronic cigar, electronic hookah, vaping pen, or electronic pipe. "Electronic smoking device" includes any component, part, or accessory of such a device, whether or not sold separately, and includes any substance intended to be aerosolized or vaporized during the use of the device. "Electronic smoking device" does not include any product that is a drug, device, or combination product, as those terms are defined or described in 21 U.S.C. 321 and 353(g).

(6) "Proof of age" means a driver's license, a commercial driver's license, a military identification card, a passport, or an identification card issued under sections 4507.50 to 4507.52 of the Revised Code that shows that a person is eighteen years of age or older.

(7) "Tobacco product" means any product that is made or derived from tobacco or that contains any form of nicotine, if it is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by any other means, including, but not limited to, a cigarette, an electronic smoking device, a cigar, pipe tobacco, chewing tobacco, snuff, or snus. "Tobacco product" also means any component or accessory used in the consumption of a tobacco product, such as filters, rolling papers, pipes, blunt or hemp wraps, and liquids used in electronic smoking devices, whether or not they contain nicotine. "Tobacco product" does not include any product that is a drug, device, or combination product, as those terms are defined or described in 21 U.S.C. 321 and 353(g).

(8) "Vapor product" means a product, other than a cigarette or other tobacco product as defined in Chapter 5743. of the Revised Code, that contains or is made or derived from nicotine and that is intended and marketed for human consumption, including by smoking, inhaling, snorting, or sniffing. "Vapor product" includes any component, part, or additive that is intended for use in an electronic smoking device, a mechanical heating element, battery, or electronic circuit and is used to deliver the product. "Vapor product" does not include any product that is a drug, device, or combination product, as those terms are defined or described in 21 U.S.C. 321 and 353(g). "Vapor product" includes any product containing nicotine, regardless of concentration.

(9) "Vending machine" has the same meaning as "coin machine" in section 2913.01 of the Revised Code.

(B) No manufacturer, producer, distributor, wholesaler, or retailer of cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes, no agent, employee, or representative of a manufacturer, producer, distributor, wholesaler, or retailer of cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes, and no other person shall do any of the following:

(1) Give, sell, or otherwise distribute cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to any person under twenty-one years of age;

(2) Give away, sell, or distribute cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes in any place that does not have posted in a conspicuous place a legibly printed sign in letters at least one-half inch high stating that giving, selling, or otherwise distributing cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to a person under twenty-one years of age is prohibited by law;

(3) Knowingly furnish any false information regarding the name, age, or other identification of any person under twenty-one years of age with purpose to obtain cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes for that person;

(4) Manufacture, sell, or distribute in this state any pack or other container of cigarettes containing fewer than twenty cigarettes or any package of roll-your-own tobacco containing less than six-tenths of one ounce of tobacco;

(5) Sell cigarettes or alternative nicotine products in a smaller quantity than that placed in the pack or other container by the manufacturer;

(6) Give, sell, or otherwise distribute alternative nicotine products, papers used to roll cigarettes, or tobacco products other than cigarettes over the internet or through another remote method without age verification.

(C) No person shall sell or offer to sell cigarettes, other tobacco products, or alternative nicotine products by or from a vending machine, except in the following locations:

(1) An area within a factory, business, office, or other place not open to the general public;

(2) An area to which persons under twenty-one years of age are not generally permitted access;

(3) Any other place not identified in division (C)(1) or (2) of this section, upon all of the following conditions:

(a) The vending machine is located within the immediate vicinity, plain view, and control of the person who owns or operates the place, or an employee of that person, so that all cigarettes, other tobacco product, and alternative nicotine product purchases from the vending machine will be readily observed by the person who owns or operates the place or an employee of that person. For the purpose of this section, a vending machine located in any unmonitored area, including an unmonitored coatroom, restroom, hallway, or outer waiting area, shall not be considered located within the immediate vicinity, plain view, and control of the person who owns or operates the place, or an employee of that person.

(b) The vending machine is inaccessible to the public when the place is closed.

(c) A clearly visible notice is posted in the area where the vending machine is located that states the following in letters that are legibly printed and at least one-half inch high:

"It is illegal for any person under the age of 21 to purchase tobacco or alternative nicotine products."

(D) The following are affirmative defenses to a charge under division (B)(1) of this section:

(1) The person under twenty-one years of age was accompanied by a parent, spouse who is twenty-one years of age or older, or legal guardian of the person under twenty-one years of age.

(2) The person who gave, sold, or distributed cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to a person under twenty-one years of age under division (B)(1) of this section is a parent, spouse who is twenty-one years of age or older, or legal guardian of the person under twenty-one years of age.

(E) It is not a violation of division (B)(1) or (2) of this section for a person to give or otherwise distribute to a person under twenty-one years of age cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes while the person under twenty-one years of age is participating in a research protocol if all of the following apply:

(1) The parent, guardian, or legal custodian of the person under twenty-one years of age has consented in writing to the person under twenty-one years of age participating in the research protocol.

(2) An institutional human subjects protection review board, or an equivalent entity, has approved the research protocol.

(3) The person under twenty-one years of age is participating in the research protocol at the facility or location specified in the research protocol.

(F)(1) Whoever violates division (B)(1), (2), (4), (5), or (6) or (C) of this section is guilty of illegal distribution of cigarettes, other tobacco products, or alternative nicotine products. Except as otherwise provided in ~~this division~~division (F) of this section, illegal distribution of cigarettes, other tobacco products, or alternative nicotine products is a misdemeanor of the fourth degree. If the offender previously has been convicted of a violation of division (B)(1), (2), (4), (5), or (6) or (C) of this section, illegal distribution of cigarettes, other tobacco products, or alternative nicotine products is a misdemeanor of the third degree.

~~(2)~~ (2)(a) Notwithstanding division (A)(2) of section 2929.28 of the Revised Code, if an offender is convicted of or pleads guilty to a violation of division (B)(1) of this section, the court shall impose a fine in the following amount:

(i) Except as otherwise provided in divisions (F)(2)(a)(ii), (iii), (iv), and (v) of this section, not more than two hundred fifty dollars;

(ii) Except as otherwise provided in divisions (F)(2)(a)(iii), (iv), and (v) of this section, if an offender has previously been convicted of or pleaded guilty to a violation of division (B)(1) of this section, not more than five hundred dollars;

(iii) Except as otherwise provided in divisions (F)(2)(a)(iv) and (v) of this section, if an offender previously has been convicted of or pleaded guilty to two or more violations of division (B)(1) of this section, five hundred dollars;

(iv) Except as otherwise provided in division (F)(2)(a)(v) of this section, if an offender previously has been convicted of or pleaded guilty to three or more violations of division (B)(1) of this section, one thousand dollars;

(v) If an offender previously has been convicted of or pleaded guilty to four or more violations of division (B)(1) of this section, one thousand five hundred dollars.

(b) The financial sanctions required by division (F)(2)(a) of this section are in lieu of the financial sanctions described in division (A)(2) of section 2929.28 of the Revised Code, but are in addition to any other sanctions or penalties that may apply to the offender, including other financial sanctions under that section or a jail term under section 2929.24 of the Revised Code.

(3) Whoever violates division (B)(3) of this section is guilty of permitting a person under twenty-one years of age to use cigarettes, other tobacco products, or alternative nicotine products. Except as otherwise provided in this division, permitting a person under twenty-one years of age to use cigarettes, other tobacco products, or alternative nicotine products is a misdemeanor of the fourth degree. If the offender previously has been convicted of a violation of division (B)(3) of this section, permitting a person under twenty-one years of age to use cigarettes, other tobacco products, or alternative nicotine products is a misdemeanor of the third degree.

(G) Any cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes that are given, sold, or otherwise distributed to a person under twenty-one years of age in violation of this section and that are used, possessed, purchased, or received by a person under twenty-one years of age in violation of section 2151.87 of the Revised Code are subject to seizure and forfeiture as contraband under Chapter 2981. of the Revised Code.

Sec. 3767.01. As used in all sections of the Revised Code relating to nuisances:

(A) "Place" includes any building, erection, or place or any separate part or portion thereof or the ground itself;

(B) "Person" includes any individual, corporation, association, partnership, trustee, lessee, agent, or assignee;

(1) That which is defined and declared by statutes to be a nuisance;

(2) Any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films or plate negatives, film or plate positives, films designed to be projected on a screen for exhibition films, or glass slides either in negative or positive form designed for exhibition by projection on a screen, are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and the personal property and contents used in conducting and maintaining any such place for any such purpose. This chapter shall not affect any newspaper, magazine, or other publication entered as second class matter by the post-office department.

(3) Any room, house, building, boat, vehicle, structure, or place where beer or intoxicating liquor is manufactured, sold, bartered, possessed, or kept in violation of law and all property kept and used in maintaining the same, and all property designed for the unlawful manufacture of beer or intoxicating liquor and beer or intoxicating liquor contained in the room, house, building, boat, structure, or place, or the operation of such a room, house, building, boat, structure, or place as described in division (C)(3) of this section where the operation of that place substantially interferes with public decency, sobriety, peace, and good order. "Violation of law" includes, but is not limited to, sales to any person under the legal drinking age as prohibited in division (A) of section 4301.22 or division (A) of section 4301.69 of the Revised Code and any violation of section 2913.46 or 2925.03 of the Revised Code.

(4) Any place in which a pattern of continuous or repeated violations of division (B)(1) of section 2927.02 of the Revised Code has occurred.

Sec. 4301.74. Any person subject to an injunction, temporary or permanent, granted pursuant to division (D) or (E) of section 3767.05 of the Revised Code involving a condition described in division (C)(3) ~~or (4)~~ of section 3767.01 of the Revised Code shall obey such injunction. If such person violates such injunction, the court or in vacation a judge thereof, may summarily try and punish the violator. The proceedings for punishment for contempt shall be commenced by filing with the clerk of the court from which such injunction issued information under oath setting out the alleged facts constituting the violation, whereupon the court shall forthwith cause a warrant to issue under which the defendant shall be arrested. The trial may be had upon affidavits, or either party may demand the production and oral examination of the witnesses.

Section 2. That existing sections 2927.02, 3767.01, and 4301.74 of the Revised Code are hereby repealed.