(a) Illegal Distribution of Cigarettes, Other Tobacco Products, or Alternative Nicotine Products.
(1) All words and phrases used in this section shall have the same meaning as defined by the Ohio Revised Code.
(2) 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:
A. Give, sell, or otherwise distribute cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to any child;
B. 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 sign stating that giving, selling, or otherwise distributing cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to a person under 18 years of age is prohibited by law;
C. Knowingly furnish any false information regarding the name, age, or other identification of any child with purpose to obtain cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes for that child;
D. Manufacture, sell, or distribute in this state any pack or other container of cigarettes containing fewer than 20 cigarettes or any package of roll-your-own tobacco containing less than six-tenths of one ounce of tobacco;
E. Sell cigarettes or alternative nicotine products in a smaller quantity than that placed in the pack or other container by the manufacturer;
F. 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.
(3) 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:
A. An area within a factory, business, office, or other place not open to the general public;
B. An area to which children are not generally permitted access;
C. Any other place not identified in division (a)(3)A. or (a)(3)B. of this section, upon all of the following conditions:
1. 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.
2. The vending machine is inaccessible to the public when the place is closed.
(4) The following are affirmative defenses to a charge under division (a)(2)A. of this section:
A. The child was accompanied by a parent, spouse who is 18 years of age or older, or legal guardian of the child.
B. The person who gave, sold, or distributed cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to a child under division (a)(2)A. of this section is a parent, spouse who is 18 years of age or older, or legal guardian of the child.
(5) It is not a violation of division (a)(2)A. or (a)(2)B. of this section for a person to give or otherwise distribute to a child cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes while the child is participating in a research protocol if all of the following apply:
A. The parent, guardian, or legal custodian of the child has consented in writing to the child participating in the research protocol.
B. An institutional human subjects protection review board, or an equivalent entity, has approved the research protocol.
C. The child is participating in the research protocol at the facility or location specified in the research protocol.
(6) A. Whoever violates division (a)(2)A., (a)(2)B., (a)(2)D., (a)(2)E., or (a)(2)F. or (a)(3) of this section is guilty of illegal distribution of cigarettes, other tobacco products, or alternative nicotine products. Except as otherwise provided in this division, 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 (a)(2)A., (a)(2)B., (a)(2)D., (a)(2)E., or (a)(2)F. or (a)(3) of this section or a substantially equivalent state law or municipal ordinance, illegal distribution of cigarettes, other tobacco products, or alternative nicotine products is a misdemeanor of the third degree.
B. Whoever violates division (a)(2)C. of this section is guilty of permitting children to use cigarettes, other tobacco products, or alternative nicotine products. Except as otherwise provided in this division, permitting children 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 (a)(2)C. of this section or a substantially equivalent state law or municipal ordinance, permitting children to use cigarettes, other tobacco products, or alternative nicotine products is a misdemeanor of the third degree.
(7) Any cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes that are given, sold, or otherwise distributed to a child in violation of this section and that are used, possessed, purchased, or received by a child in violation of Ohio R.C. 2151.87 are subject to seizure and forfeiture as contraband under Ohio R.C. Chapter 2981.
(b) Affirmative Defenses.
(1) A seller or an agent or employee of a seller may not be found guilty of a charge of a violation of division (a) of this section in which the age of the purchaser or other recipient of cigarettes, other tobacco products, or alternative nicotine products is an element of the alleged violation, if the seller, agent or employee raises and proves as an affirmative defense that all of the following occurred:
A. A card holder attempting to purchase or receive cigarettes, other tobacco products, or alternative nicotine products presented a driver’s or commercial driver’s license or an identification card.
B. A transaction scan of the driver’s or commercial driver’s license or identification card that the card holder presented indicated that the license or card was valid.
C. The cigarettes, other tobacco products, or alternative nicotine products were sold, given away or otherwise distributed to the card holder in reasonable reliance upon the identification presented and the completed transaction scan.
(2) In determining whether a seller or an agent or employee of a seller has proven the affirmative defense provided by division (b)(1) of this section, the trier of fact in the action for the alleged violation of division (a) of this section shall consider any written policy that the seller has adopted and implemented and that is intended to prevent violations of division (a) of this section. For purposes of division (b)(1)C. of this section, the trier of fact shall consider that reasonable reliance upon the identification presented and the completed transaction scan may require a seller or an agent or employee of a seller to exercise reasonable diligence to determine, and that the use of a transaction scan device does not excuse a seller or an agent or employee of a seller from exercising reasonable diligence to determine, the following:
A. Whether a person to whom the seller or agent or employee of a seller sells, gives away or otherwise distributes cigarettes, other tobacco products, or alternative nicotine products is 18 years of age or older;
B. Whether the description and picture appearing on the driver’s or commercial driver’s license or identification card presented by a card holder is that of the card holder.
(3) In any criminal action in which the affirmative defense provided by division (b)(1) of this section is raised, the Registrar of Motor Vehicles or a Deputy Registrar who issued an identification card under Ohio R.C. 4507.50 to 4507.52 shall be permitted to submit certified copies of the records of that issuance in lieu of the testimony of the personnel of or contractors with the Bureau of Motor Vehicles in the action.
(c) Shipment of Tobacco Products.
(1) As used in this division (c):
A. “Authorized recipient of tobacco products” means a person who is:
1. Licensed as a cigarette wholesale dealer under R.C. § 5743.15;
2. Licensed as a retail dealer as long as the person purchases cigarettes with the appropriate tax stamp affixed;
3. An export warehouse proprietor as defined in Section 5702 of the Internal Revenue Code;
4. An operator of a customs bonded warehouse under 19 U.S.C. § 1311 or 19 U.S.C. § 1555;
5. An officer, employee, or agent of the federal government or of this state acting in the person’s official capacity;
6. A department, agency, instrumentality, or political subdivision of the federal government or of this state;
7. A person having a consent for consumer shipment issued by the Tax Commissioner under R.C. § 5743.71.
B. “Motor carrier.” Has the same meaning as in R.C. § 4923.01.
(2) The purpose of this division (c) is to prevent the sale of cigarettes to minors and to ensure compliance with the Master Settlement Agreement, as defined in Ohio R.C. 1346.01.
(3) A. No person shall cause to be shipped any cigarettes to any person in this Municipality other than an authorized recipient of tobacco products.
B. No motor carrier or other person shall knowingly transport cigarettes to any person in this municipality that the carrier or other person reasonably believes is not an authorized recipient of tobacco products. If cigarettes are transported to a home or residence, it shall be presumed that the motor carrier or other person knew that the person to whom the cigarettes were delivered was not an authorized recipient of tobacco products.
(4) No person engaged in the business of selling cigarettes who ships or causes to be shipped cigarettes to any person in this Municipality in any container or wrapping other than the original container or wrapping of the cigarettes shall fail to plainly and visibly mark the exterior of the container or wrapping in which the cigarettes are shipped with the words “cigarettes”.
(5) A court shall impose a fine of up to one thousand dollars ($1,000.00) for each violation of division (c)(3)A., (c)(3)B. or (c)(4) of this section.
(ORC 2927.023)