§ 5-27-227 - Providing minors with tobacco products and cigarette papers -- Purchase, use, or possession prohibited -- Self-service displays prohibited -- Placement of tobacco vending machines. - Arkansas Statutes

5-27-227. Providing minors with tobacco products and cigarette papers -- Purchase, use, or possession prohibited -- Self-service displays prohibited -- Placement of tobacco vending machines.

(a) (1) It is unlawful for any person to give, barter, or sell to a minor:

(A) Tobacco in any form; or

(B) A cigarette paper.

(2) A person who pleads guilty or nolo contendere to or is found guilty of violating subdivision (a)(1) of this section is guilty of a violation and is subject to a fine not to exceed one hundred dollars ($100) per violation.

(3) An employee of an Arkansas Retail Cigarette and Tobacco permit holder who violates subdivision (a)(1) of this section is subject to a fine not to exceed one hundred dollars ($100) per violation.

(b) (1) It is unlawful for a minor to:

(A) Use or possess or to purchase, or attempt to purchase:

(i) Tobacco in any form; or

(ii) Cigarette papers; or

(B) For the purpose of obtaining or attempting to obtain tobacco in any form or cigarette papers, falsely represent himself or herself to be eighteen (18) years of age or older by displaying proof of age that is false, fraudulent, or not actually proof of the minor's age.

(2) Any cigarettes, tobacco products, or cigarette papers found in the possession of a minor may be confiscated and destroyed by a law enforcement officer.

(c) (1) It is not an offense under subsection (b) of this section if:

(A) The minor was acting at the direction of an authorized agent of the Arkansas Tobacco Control Board to enforce or ensure compliance with laws relating to the prohibition of the sale of tobacco in any form or cigarette papers to minors;

(B) The minor was acting at the direction of an authorized agent of the Office of Alcohol and Drug Abuse Prevention to compile statistical data relating to the sale of tobacco in any form or cigarette papers to minors;

(C) The minor was acting at the request of an Arkansas Retail Cigarette and Tobacco permit holder to assist the permit holder by performing a check on the permit holder's own retail business to see if the permit holder's employees would sell tobacco or cigarette papers to the minor; or

(D) The minor was acting as an agent of a retail permit holder within the scope of employment.

(2) A minor performing activities under subdivision (c)(1) of this section shall:

(A) Display the appearance of a minor;

(B) Have the written consent of the minor's parent or guardian to perform the activity on file with the agency utilizing the minor; and

(C) (i) Present a true and correct identification if asked.

(ii) Any failure on the part of a minor to provide true and correct identification upon request is a defense to any action under this section or a civil action under 26-57-256.

(d) Any person who sells tobacco in any form or a cigarette paper has the right to deny the sale of any tobacco in any form or a cigarette paper to any person.

(e) It is unlawful for any person who has been issued a permit or a license under the Arkansas Tobacco Products Tax Act of 1977, 26-57-201 et seq., to fail to display in a conspicuous place or on each vending machine a sign indicating that the sale of tobacco products to or purchase or possession of tobacco products by a minor is prohibited by law.

(f) It is unlawful for any manufacturer whose tobacco product is distributed in this state and any person who has been issued a permit or license under the Arkansas Tobacco Products Tax Act of 1977, 26-57-201 et seq., to distribute a free sample of any tobacco product or coupon that entitles the holder of the coupon to any free sample of any tobacco product:

(1) In or on any public street or sidewalk within five hundred feet (500') of any playground, public school, or other facility when the playground, public school, or other facility is being used primarily by minors for recreational, educational, or other purposes; or

(2) To any minor.

(g) (1) (A) It is unlawful for any person that has been issued a permit or license under the Arkansas Tobacco Products Act of 1977, 26-57-201 et seq., to sell or distribute a cigarette product through a self-service display.

(B) Subdivision (g)(1)(A) of this section does not apply to a:

(i) Vending machine that complies with subdivision (h)(1)(A) of this section; or

(ii) Retail tobacco store.

(2) As used in subdivision (g)(1) of this section:

(A) "Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental; and

(B) "Self-service display" means a display:

(i) That contains a cigarette product;

(ii) That is located in an area where customers are permitted; and

(iii) In which the cigarette product is readily accessible to a customer without the assistance of a salesperson.

(h) (1) (A) Except as provided in subdivision (h)(2) of this section, it is unlawful for any person who owns or leases a tobacco vending machine to place a tobacco vending machine in a public place.

(B) As used in subdivision (h)(1)(A) of this section, "public place" means a publicly or privately owned place to which the public or a substantial number of people have access.

(2) A tobacco vending machine may be placed in a:

(A) Restricted area within a factory, business, office, or other structure to which a member of the general public is not given access;

(B) Permitted premises that has a permit for the sale or dispensing of an alcoholic beverage for on-premises consumption that restrict entry to a person twenty-one (21) years of age or older; or

(C) Place where the tobacco vending machine is under the supervision of the owner or an employee of the owner.

(i) Any retail permit holder or license holder who violates any provision in this section is deemed guilty of a violation and subject to penalties under 26-57-256.

(j) (1) A notice of alleged violation of this section shall be given to the holder of a retail permit or license or an agent of the holder within ten (10) days of the alleged violation.

(2) (A) The notice shall contain the date and time of the alleged violation.

(B) (i) The notice shall also include either the name of the person making the alleged sale or information reasonably necessary to determine the location in the store that allegedly made the sale.

(ii) When appropriate, information under subdivision (j)(2)(B)(i) of this section should include, but not be limited to, the:

(a) Cash register number;

(b) Physical location of the sale in the store; and

(c) If possible, the lane or aisle number.

(k) Notwithstanding the provisions of subsection (i) of this section, the court shall consider the following factors when reviewing a possible violation:

(1) The business has adopted and enforced a written policy against selling cigarettes or tobacco products to minors;

(2) The business has informed its employees of the applicable laws regarding the sale of cigarettes and tobacco products to minors;

(3) The business has required employees to verify the age of a cigarette or tobacco product customer by way of photographic identification;

(4) The business has established and imposed disciplinary sanctions for noncompliance; and

(5) That the appearance of the purchaser of the tobacco in any form or cigarette papers was such that an ordinary prudent person would believe him or her to be of legal age to make the purchase.

(l) A person convicted of violating any provision of this section whose permit or license to distribute or sell a tobacco product is suspended or revoked upon conviction shall surrender to the court any permit or license to distribute or sell a tobacco product and the court shall transmit the permit or license to distribute or sell a tobacco product to the Director of the Department of Finance and Administration and instruct the Director of Arkansas Tobacco Control:

(1) To suspend or revoke the person's permit or license to distribute or sell a tobacco product and to not renew the permit or license; and

(2) Not to issue any new permit or license to that person for the period of time determined by the court in accordance with this section.